IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.7981/2015 C/W M.F.A.No.9115/2015(WC) IN M.F.A.No.7981/2015:
BETWEEN:
SHABU @ SHABAJ S/O MOHAMMED CHASM, AGED ABOUT 30 YEARS, R/O CHOLAGUDD, AGASANAKALLUK, CHITRADURGA-577501. ..APPELLANT (BY SRI KRISHNOJI RAO, ADVOCATE FOR SRI B PRAMOD, ADVOCATE) AND:
1. MOHAMMED JABIULLA S/O ABDUL RAHEEM SAB, MAJOR, OWNER OF LORRY BEARING REGN. NO KA-16-A-8300 R/O AJADNAGAR, I MAIN, HORAPET, CHITRADURGA-577501.
2. THE MANAGER SHRI. RAM GENERAL INSURANCE CO LTD., E/8, IPIP, RILCO, INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN-302022. ..RESPONDENTS (BY SRI H N KESHAVA PRASHANTH, ADVOCATE FOR R2) THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND ORDER DATED:28.08.2015 PASSED IN ECA.NO.175/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CJM, COMMISSIONER FOR EMPLOYEES COMPENSATION, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING FURTHER ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.9115/2015:
BETWEEN:
THE MANAGER SHRIRAM GENERAL INSURANCE COMPANY LTD.
E/8 EPIP RIICO INDUSTRIAL AREA SITAPURA, JAIPUR RAJASTHAN - 302022 NOW REPRESENTED BY ITS MANAGER M/s.SHRIRAM GENERAL INSURANCE COMPANY LTD., NO.5/4, 3RD FLOOR, S V ARCADE BILAKAHALLI MAIN ROAD OFF BG ROAD IIM POST BANGALORE – 560076 ..APPELLANT (BY SRI H N KESHAVA PRASHANTH, ADVOCATE) AND:
1. SHABU @ SHABAJ S/O MOHAMMED NOW AGED ABOUT 26 YEARS R/O CHITRADURGA AGASANAKALLU CHITRADURGA -577 501 2. MOHAMMED JABIULLA S/O ABDUL RAHEEM SAB MAJOR R/O AJADNAGAR, 1ST MAIN, HORAPET CHITRADURGA-577 501 ..RESPONDENTS (BY SRI KRISHNOJI RAO, ADVOCATE FOR SRI B PRAMOD, ADVOCATE FOR R1, R-2 -SERVED) THIS MFA IS FILED U/S 30(1) OF THE WORKMEN'S COMPENSATION ACT, AGAINST THE JUDGMENT AND ORDER DATED:28.08.2015 PASSED IN ECA NO.175/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, C.J.M AND COMMISSIONER FOR EMPLOYEES COMPENSATION, CHITRADURGA, AWARDING COMPENSATION OF RS.2,92,829/- WITH INTEREST @ 12% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeals are listed for `Admission’ with the consent of the learned counsel appearing for the parties, they are taken up for final disposal.
2. These are the two appeals directed against the Judgment and award dated 28.08.2015 passed in ECA No.175/2014 on the file of the Principal Senior Civil Judge, CJM, and Commissioner for Employees Compensation, Chitradurga. MFA No.7981/2015 is preferred by petitioner seeking modification of impugned judgment and award and MFA No.9115/2015 is by the insurance company for setting aside.
3. In order to avoid confusion and overlapping, the parties are hereinafter referred with reference to their status and rankings as it stood before the Commissioner.
4. It pertains to accident dated 05.07.2010 wherein claimant said to be an employee of respondent No.1 sought compensation in respect of injuries suffered by him in a road traffic accident that occurred out of and in the course of employment and said to have occurred on 05.07.2010 at about 3 a.m. when the petitioner was proceeding in a lorry bearing registration No.KA-16-A-8300 as a cleaner under the employment of respondent No.1. When the vehicle was moving at Hirehalli of Challakere Taluk, the driver was rash and negligent in driving the lorry because of which it dashed to the rear portion of another lorry bearing registration No.KA-32-A-4453 due to which the petitioner suffered injuries all over the body and he had to undergo surgery because of the fracture that was sustained by him by virtue of the accident. He was also forced to undergo follow up treatment because of which he incurred medical expenditure of Rs.1,00,000/-. According to him he has lost earning capacity, deprived of future amenities and apprehension of medical expenditure. The insurance company, second respondent contested the matter and sought for dismissal of the claim petition.
5. Learned Commissioner considered the matter relating to accident dated 05.07.2010 and the injuries sustained by the claimant out of and in the course of employment and found the injuries as reflected in Exhibit P-4 –wound certificate as under:
1. Lacerated wound over the right forehead, bleeding present.
2. Multiple abrasion over the forehead.
3. Deformity of lower 1/3rd of thigh 4. Abrasion over left leg.
And found the disability certificate Exhibit P-7 wherein permanent disability is said to be at 40% with respect to his right lower limb and the learned Commissioner also observed a finding regarding the oral evidence of doctor when compared to whole body it may be reduced to 5%. In this connection I find consideration of salary at Rs.4,500/- appears to be on the lower side. It ought to have been considered at Rs.6,000/- and total disability is considered at 30% which apparently appears that the Commissioner has over assessed compensation by taking unreasonably higher disability. He was a cleaner earning Bhata along with wages. Considering the facts and circumstances of the accident, nature of work, physical discomfort to work, the total disability could be considered at 15% to the entire body. 30% disability considered by the learned Member has no rationale and is contrary to his observation in paragraph 13 of the Judgment. Thus, compensation under loss of income is as under:
Rs.6,000+60% -3,600x15x216.91 =Rs.1,17,131.40 6. In the circumstances, considering the material available on record, I find compensation granted to the claimant at Rs.2,92,829/- is unreasonably on the higher side. The just and fair compensation as per the calculation made above stands at Rs.1,17,131.40 and interest awarded @ 12% p.a. from the date of petition till date of deposit ought to have been from the 31st day of accident.
7. In the result, Judgment and award dated 28.08.2015 passed in ECA No.175/2014 requires to be modified to reduce the compensation amount from Rs.2,92,829 to Rs.1,17,131/-.
8. I proceed to pass the following:
ORDER 1. M.F.A.No.7981/2015 preferred by claimant is rejected.
2. M.F.A.No.9115/2015 filed by the insurance company is partly allowed.
3. Judgment and award dated 28.08.2015 passed in ECA No.175/2014 by the Principal Senior Civil Judge, CJM and Commissioner for Employees Compensation, Chitradurga, is modified by awarding compensation amount of Rs.1,17,131/- instead of Rs.2,92,829/- (Reduction of Rs.1,75,698/-) together with interest @ 12% p.a. from the 31st day of accident till the date of payment in full.
4. Excess amount if any deposited by the insurance company to be refunded.
5. Claimant is entitled to withdraw what is entitled by virtue of the order passed under this appeal.
Sd/- JUDGE SBN