IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA Miscellaneous First Appeal No.7845 OF 2018 (WC) along with Miscellaneous First Appeal No.7847 OF 2018 (WC) In M.F.A.No.7845 of 2018:
BETWEEN:
P.B.NIRANJAN, S/O BASAPPA, AGED ABOUT 32 YEARS, HAMALI, RESIDENT OF GANAPATHI TEMPLE ROAD, HOLALKERE TOWN – 577 526. …APPELLANT (BY SRI SPOORTHY HEGADE NAGARAJA, ADVOCATE) AND:
1. UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, MMK COMPLEX, P.J.EXTENSION, DAVANAGERE – 577 002.
2. ASIF KHAN, S/O AMEER KHAN, AGED ABOUT 37 YEARS, R/O BEHIND PRASANNA THEATRE, CHITRADURGA TOWN – 577 001. …RESPONDENTS (BY SRI P.S.JAGADISH, ADVOCATE FOR SRI P.B.RAJU, ADVOCATE FOR R1;
Notice to R2 is dispensed with) THIS MFA IS FILED UNDER SECTION 30(1) OF THE ECA ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 21.10.2017 PASSED IN ECA NO.15 OF 2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * * In M.F.A.No.7847 of 2018:
BETWEEN:
ASHRAF BEIG, S/O KALANDAR BEIG, AGED ABOUT 27 YEARS, HAMALI WORK, RESIDENT OF BELICHI MOHALLA, HOLALKERE TOWN. …APPELLANT (BY SRI SPOORTHY HEGADE NAGARAJA, ADVOCATE) AND:
1. UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, MMK COMPLEX, P.J.EXTENSION, DAVANAGERE – 577 002.
2. ASIF KHAN, S/O AMEER KHAN, AGED ABOUT 37 YEARS, R/O BEHIND PRASANNA THEATRE, CHITRADURGA TOWN – 577 001. …RESPONDENTS (BY SRI P.S.JAGADISH, ADVOCATE FOR SRI P.B.RAJU, ADVOCATE FOR R1;
Notice to R2 is dispensed with) THIS MFA IS FILED UNDER SECTION 30(1) OF THE ECA ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 21.10.2017 PASSED IN ECA NO.16 OF 2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING :
J U D G M E N T M.F.A.No.7845 of 2018 has been filed by the petitioner in E.C.A.No.15 of 2016 and M.F.A.No.7847 of 2018 has been filed by the petitioner in E.C.A.No.16 of 2016 against the judgment and award dated 21.10.2017 passed by the Senior Civil Judge and JMFC, MACT, Holalkere awarding total compensation of Rs.47,575/- and Rs.45,210/- respectively seeking enhancement of compensation.
2. It is the case of the claimants that both of them were working under second respondent as Hamalis in lorry bearing Registration No.KA-20-7686. On 21.05.2004 at about 3.00 a.m., when they were working as loader and un- loader in the said vehicle and when the said vehicle was moving near Bheemasamudra Cross to go to Holalkere carrying vegetables from Chitradurga to Holalkere, the driver of the said vehicle drove the same in a rash and negligent manner with high speed and dashed against the road side tree on NH-13. Due to which, the appellant in M.F.A. No.7845 of 2018 sustained fractures, i.e., 3rd, 4th, 5th, 6th and 7th ribs and other multiple injuries. Immediately, he was taken to District Hospital, Chitradurga, where he took treatment as an inpatient for 10 days. Due to accidental injuries, he has suffered permanent physical disability partially. He was aged about 30 years at the time of accident. Earlier to the accident, he was hale and healthy and working as loader and un-loader and earning Rs.150/- to Rs.200/- per day.
3. As a result of the accident occurred on 25.01.2004, the appellant in M.F.A.No.7847 of 2018 sustained fractures i.e., fracture of left ulna and other injuries. Immediately, the appellant was taken to District Hospital, Chitradurga, where he took treatment as an inpatient for 15 days. Due to accidental injuries, he has suffered permanent physical disability partially. He was aged about 25 years at the time of accident. Earlier to the accident, he was hale and healthy and working as loader and un-loader and earning Rs.130/- and Rs.50/- per day as bata. Inspite of long and better treatment, the appellants were unable to recover from the accidental injuries and suffered permanent physical disability which affects the total earning capacity in future life. Therefore, the appellants filed claim petition before the M.A.C.T. seeking compensation.
4. Both the respondents appeared through their respective counsels and filed their separate objection statements.
5. Respondent No.1/Insurance Company denied the accident including age, occupation, income and injuries sustained by the appellants and also denied the relationship of employee and employer between appellants and Respondent No.2. Further, it is contended that the appellants were traveling in the said vehicle as paid passengers and driver of the said lorry had no valid and effective driving license to drive such type of vehicle and sought for dismissal of the claim petition.
6. Respondent No.2/Owner of the vehicle pleaded ignorance about age, occupation, income and injuries as stated in the claim petitions. He admitted that petitioners were working as Hamalis in his lorry and they loaded vegetables and were proceeding in the said lorry for unloading at Holalkere. He admitted that the accident occurred due to rash and negligent driving of driver of the said lorry. He also admitted payment of wages to petitioners as contended by them in the claim petitions. He also contended that being owner of the lorry, was insured with Respondent No.1. The policy was in force at the time of accident and driver of the lorry had effective driving license and sought for dismissal of the petition against him.
7. Based on the aforesaid pleadings, the Tribunal framed the following issues for consideration:
1. Whether petitioners prove that they were working as Hamalis (loader and un-loader) under the respondent No.1 in TATA-407 Mini Lorry bearing Reg.No.KA-20- 7686?
2. Whether the petitioners prove that on 25.01.2004 at a bout 3.00 a.m. as per the instructions and guidelines of the Respondent No.1 they were working as Hamalis in the said Mini Lorry, during that time near Bheemasamudra Cross road, the said Mini Lorry met with an accident and said accident occurred during the course of employment?
3. Whether the petitioners prove that they sustained injuries on account of allege incident?
4. Whether the Respondent No.2proves that there is a violation of terms and conditions of the insurance policy by the Respondent No.1:
5. Whether the petitioners are entitled for compensation? If so, how much and from whom?
6. What order or award?
8. The claimants in order to establish their case, examined themselves as PW-1 and PW-2 and got examined Dr.Venkatashivareddy as PW-3 and PW-4 and got marked the documents at Exs.P1 to P16. Respondent No.2 herein/Owner got examined as RW-1 and Respondent No.1 herein/Insurance Company did not choose to adduce any evidence.
9. The Tribunal after considering both oral and documentary evidence available on record, recorded a finding that the claimants proved that they were working as Hamalis under the Respondent No.1 therein in lorry bearing Reg.No.KA-20-7686 and proved when they were working as loader and un-loader in the said vehicle, they sustained injuries arising out of the accident occurred during the course of employment. They also proved the injuries sustained by them and second respondent therein failed to prove that there is violation of terms and conditions of the policy, and the claimants are entitled to pay compensation. Accordingly, the Tribunal by the impugned judgment and award proceeded to award total compensation of Rs.47,575/- to the claimant in E.C.A.No.15 of 2016 and Rs.45,210/- to the claimant in E.C.A.No.16 of 2016 with 12% interest per annum from the date of accident till date of deposit. Being aggrieved by the said award, the claimants are in appeal seeking enhancement of compensation.
10. I have heard learned counsel for both the parties to the lis.
11. Sri Spoorthy Hegde, learned counsel for the appellants contended that the compensation awarded by the Tribunal is inadequate and contrary on record and liable to be modified. He further contended that the Tribunal erred in taking Rs.3,500/- monthly wages of the claimants though both the claimants PWs-1 and 2 stated on oath that they are earning Rs.4,500/- to Rs.5,000/- per month and Rs.3,900/- and Rs.5,400/- per month, ignoring the fact that the accident occurred on 25.01.2004, as per Section 4 Explanation II, the Central Government specified the monthly wages at Rs.4,000/-. He further contended that the Tribunal erred in taking loss of earning capacity as 11% ignoring the evidence of PWs- 3 and 4 who stated on oath that the claimant in E.C.A.No.15 of 2016 sustained 35% of physical disability in respect of left side chest and left shoulder and the claimant in E.C.A.No.16 of 2016 sustained 30% of physical disability in respect of left forearm. Therefore, he sought to allow the appeals.
12. Per contra, Sri P.S.Jagadish, learned counsel appearing on behalf of Sri P.B.Raju for Respondent No.1- Insurance Company sought to justify the impugned award and contended that in the absence of any documents produced by the claimants, the Tribunal is justified in taking monthly wages at Rs.3,500/-. Since the Doctor examined as PWs-3 and 4 did not state physical disability of the whole body but only stated that the claimant in E.C.A.No.15 of 2016 sustained 35% of physical disability in respect of left side chest and left shoulder and the claimant in E.C.A.No.16 of 2016 sustained 30% of physical disability in respect of left forearm. Therefore, the Tribunal is justified in taking 1/3rd towards loss of earning capacity and sought for dismissal of the appeals.
13. Having heard the learned counsel for the parties, the following substantial questions of law that would arise for consideration are:
i) Whether the Tribunal is justified in taking monthly wages of the injured claimants at Rs.3,500/- per month in view of the provisions of Section 4 Explanation II as the accident occurred on 25.01.2004.
ii) Whether the Tribunal is justified in taking earning capacity of the injured at 11%, when PW-3, Doctor stated on oath that the claimant has suffered 35% of physical disability in respect of left side chest and left shoulder, in view of provisions of Section 4(1)(c)(ii) of the Employees Compensation Act, 1923?
14. It is an undisputed fact that both the claimants were working under second respondent as Hamalis in lorry bearing Registration No.KA-20-7686 and due to the accident occurred on 21.05.2004 at about 3.00 a.m., during the course of employment, both the claimants sustained grievous injuries as per the charge-sheet issued by the jurisdictional competent authorities, which is at Ex.P6. It is the specific case of the claimants in both the appeals that they were working as loader and un-loader and used to earn Rs.4,500 to Rs.5,000/- and Rs.3,900/- to Rs.5,400/- respectively per month. It is also not in dispute that the second respondent/owner who filed objections before the Tribunal has not disputed the fact that both the claimants were working under him as Hamalis and also not denied the payment of wages and contended that the policy was in force at the time of accident and driver of the lorry had effective driving license.
15. The Tribunal proceeded to take monthly wages of the claimants by notionally assessing as Rs.3,500/- per month. Admittedly, when the accident occurred on 25.01.2004 as on that date, the Central Government specified the wages at Rs.4,000/- in view of the provisions of Section 4 Explanation II of the Employees Compensation Act, 1923, therefore, the Tribunal ought to have taken at Rs.4,000/- per month instead of Rs.3,500/- per month. The Tribunal proceeded to fix the physical disability of the claimants at 11% ignoring the Doctor’s evidence who stated on oath that both the claimants have suffered physical disability of 30% and 35% respectively. The Tribunal in all fairness ought to have taken 16% towards loss of earning capacity due to physical disability.
16. It is also not in dispute that the accident occurred due to rash and negligent driving of the driver of the lorry. The jurisdictional police registered a criminal case against the lorry driver. For the reasons stated above, the substantial questions of law have to be held in negative holding that the Tribunal is not justified in taking monthly wages at Rs.3,500/-, in view of the provisions of Section 4 Explanation II of the Employees Compensation Act, 1923 and also not justified in taking 11% physical disability towards loss of earning capacity, in view of the oral evidence of PW-3 Doctor.
17. Taking into consideration the entire material on record and in view of the provisions of Section 4 Explanation II of the Employee’s Compensation Act, 1923 the monthly wages of both the claimants is taken at Rs.4,000/- each instead of Rs.3,500/- as fixed by the Tribunal. In view of the evidence of the Doctors examined as PWs-3 and 4 and in view of the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923, 16% is fixed towards loss of earning capacity due to physical disability instead of 11% as fixed by the Tribunal.
18. If we calculate compensation to each of the claimants under the provisions of Section 4(1)(b) of the Employee’s Compensation Act, 1923, it comes as follows:
Compensation to Appellant in M.F.A.No.7845 of 2018 (E.C.A.No.15 of 2016):
Rs.4,000/- X 60% X 205.95X16%= Rs.79,084/-
Compensation to Appellant in M.F.A.No.7847 of 2018 (E.C.A.No.16 of 2016):
Rs.4,000/- X 60% X215.28X16%= Rs.82,667/-.
19. In view of the aforesaid reasons, I pass the following:
JUDGMENT i) The appeals filed by the claimants are allowed in part.
ii) The impugned judgment and award dated 21st October, 2017 passed by the Senior Civil Judge and M.A.C.T. Holalkere in E.C.A.No.15 of 2016 and E.C.A.No.16 of 2016 are hereby modified.
iii) The claimants are entitled to a total compensation of Rs.79,084/- and Rs.82,667/- respectively with 12% interest, after one month from the date of accident till the date of realization.
iv) It is made clear that the claimants are not entitled for any interest for the delay in filing the appeals as per the order dated 18.09.2019 and 30.10.2019 passed by this Court.
Ordered accordingly.
Sd/- JUDGE DH