IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA MISCELLANEOUS FIRST APPEAL NO.8813/2018 (WC) BETWEEN:
SRI. ALIUR RAHAMAN S/O ANWAR BASHA AGED ABOUT 32 YEARS, R/O 1ST CROSS, DARJI COLONY GOPAL PURA ROAD, CHITRDURGA-577501.
(BY SRI N. KRISHNOJI RAO FOR SRI B. PRAMOD, ADV.) AND:
1. MANAGER ... APPELLANT M/S TRUCK FIRST SERVICES PVT. LTD. NO.436, A TOWER, B3 SPAZE 1 TECH PARK SHOHNA ROAD SEC 49, GURGAON-122018 2. THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD, BRANCH OFFICE JAGALUR MAHALINGAPPA TOWERS, 1ST FLOOR, ABOVE HDFC BANK B D ROAD, CHITRADURGA-577501.
... RESPONDENTS (BY SRI E I SANMATHI, ADV. FOR R2 VIDE COURT ORDER DATED 07.08.2019, NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION U/S 30(1) OF THE ECA ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED:07.07.2018 PASSED IN ECA NO.37/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & CFEC, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION ETC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for admission, with the consent of learned counsel for both the parties, it is taken up for final disposal.
2. The claimant filed the present miscellaneous first appeal against the judgment and award dated 07.07.2018 reviewed judgment pronounced on 21.08.2018 made in ECA.No.37/2016 on the file of the II Additional Senior Civil Judge and CFEC, Chitradurga, (hereinafter referred to as ‘the Tribunal’ for brevity) awarding total compensation of Rs.4,35,900/- with interest at 9% per annum from the date of petition till deposit.
3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.
4. It is the case of the appellant, who is the claimant has filed the petition under the provisions of Section 22 of the Employee’s Compensation Act, 1923, seeking compensation for the injuries sustained by him arising out of and during the course of his employment, contending that he along with respondent No.1 – owner of the Lorry bearing No.HR-55V-6608 were coming from Bengaluru to Chitradurga, when the said vehicle was proceeding near Bengaluru – Tumakuru NH-4 road, near Joss Tool Gate, HMS IT College, Ordigere Hobli, Tumkur Taluk and District. At that time the claimant lost control over the Lorry and dashed to the hind portion of the KSRTC bus bearing registration No.KA-42-F-1615. Due to this, the accident occurred and the claimant suffered severe grievous injuries such as, fractures of left and right legs etc. Immediately, after the accident, the claimant was shifted to Aditya Orthopedic and Trauma Center, Tumkur for treatment by spending huge amount of Rs.5,00,000/- towards medical expenses. He has further contended that he was aged about 30 years and was hale and healthy prior to the incident. He was getting monthly wages of Rs.10,000/- per month and batta of Rs.200/- per day under the respondent No.1 – owner of the vehicle and the accident has arisen out of and during the course of the employment. Respondent No.1 is the owner and the respondent No.2 is the insurer of the offending vehicle and both are liable to pay the compensation jointly and severally.
5. After issuance of the notice, respondent No.1 remained absent and he is placed exparte by the tribunal. Respondent No.2 filed objections denying the averments made in the claim petition and the injuries sustained by the claimant. They also denied the relationship of employer and employee between the claimant and respondent No.1 – owner of the Lorry. The claimant in collusion with the doctor has created a false medical document to get compensation. As on the date of the accident, the driver of the Lorry was not holding valid and effective driving license and respondent No.1, the owner of the Lorry has violated the terms and conditions of the policy. Even if the liability has to be fastened, it has to be subject to the terms and conditions of the policy. On these grounds, insurer sought for dismissal of the claim petition.
6. Based on the pleadings, the Tribunal framed the following issues:
“1. Whether the petitioner proves that, he sustained injuries in the accident that, was occurred on 22/07/2016 at about 6.00 p.m., Bengaluru – Tumakur NH-4 road, near Joss Toll gate, HMS IT College, Ooridiger Hobli, Tumkur Taluk and District. While he was doing driver work under the employment of respondent No.1 who was owner of Lorry bearing Reg.No.HR-55/V-6608?
2. Whether the petitioner is entitled for compensation, if so, how much and from whom?
3. What order or award?”
7. In order to establish the case, the claimant examined himself as PW.1 and got marked documents as Exs.P.1 to P.15. The respondent No.2 examined one Assistant of the Insurance Company as RW.1 and got marked documents as Exs.R.1 to R.13.
8. The Tribunal after considering the oral and documentary evidence on record has recorded the finding that the claimant has proved that he was working under respondent No.1 as driver as on the date of the accident that occurred on 22.07.2016, which has arisen out of and during the course of employment and is entitled for compensation accordingly, the Tribunal by the impugned judgment and award dated 07.07.2018 and reviewed judgment pronounced on 21.08.2018, awarded total compensation of Rs.4,35,900/- with 9% interest per annum from the date of the petition till deposit. Hence, the claimant – appellant has filed the present appeal seeking enhancement of compensation.
9. The Insurance Company has not filed any appeal against the impugned judgment and award passed by the tribunal.
10. I have heard the learned counsel for the parties to the lis.
11. Sri N. Krishnoji Rao, learned counsel for Sri B. Pramod, learned counsel for the appellant – claimant contended that the tribunal has erred in taking the disability at 15%, when the disability certificate – Ex.P.8 issued by the medical practitioner clearly indicates that the claimant has suffered 30% over the whole body. He contended that the claimant has sustained left femur supra condylar fractures, left leg both bone fractures, right femur comminuted M/3 fracture and right leg fracture of both bone (tibia segmental) which are grievous in nature, but the tribunal has not considered the same. He would further contend that admittedly, the accident occurred on 22.07.2016 and the claimant is entitled to 12% interest on the compensation amount in view of the provisions of Section 4A(3)(a) of the Act and not 9% as awarded by the tribunal. He would submit that as on the date of the accident, the minimum wages payable as per the notification dated 31.05.2010, issued by the Central Government by exercising powers under Section 4(1B) of the Employee’s Compensation Act, 1923, has fixed the monthly wages at Rs.8,000/-. Hence, he sought to allow the appeal filed by the claimant.
12. Per contra, Sri E.I.Sanmathi, learned counsel for the respondent No.2 - insurer sought to justify the impugned judgment and award and contended that the claimant has examined the doctor and has rightly taken the disability at 15% to the whole body. Admittedly, the accident occurred on 22.07.2016 and the tribunal has lost sight of the notification issued by the Central Government by exercising the powers under Section 4(1B) of the Employee’s Compensation Act, 1923, has fixed the monthly wages at Rs.11,000/-. The tribunal ought to have taken only Rs.8,000/- in view of the said provision. Hence, he sought to dismiss the appeal.
13. This Court while admitting the appeal framed the following substantial questions for its consideration:
“1. Whether the Tribunal is justified in taking the disability of the claimant at 15% in view of the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923?
2. Whether the Tribunal is justified in awarding 9% interest on the compensation awarded in view of the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, 1923?”
14. Having heard the learned counsel for the parties, it is undisputed fact that the claimant was working under respondent No.1 as driver on 22.07.2016, the date on which the accident occurred while driving the Lorry bearing registration No.HR-55V-6608, arising out of and during the course of his employment. The same is evidenced by the material document Exs.P.1 to P.6. It is the specific case of the claimant that he was earning Rs.10,000/- as monthly wages and Rs.200/- as Batta per day under the employment of respondent No.1. Respondent No.1 has entered appearance and remained absent, hence, the tribunal has placed him exparte. The claimant has examined the doctor who has stated on oath that the claimant is suffering from disability of 30% to the whole body and has issued disability certificate at Ex.P.8. the doctor further opined that as per the wound certificate Ex.P.5, the injury Nos.1 to 4 i.e., left femur supra condylar fractures, left leg both bone fractures, right femur comminuted M/3 fracture and right leg fracture of both bone (tibia segmental), which are grievous in nature.
15. The Tribunal though recorded the finding that the doctor certificate indicates 30% disability to the whole body, when compared to the entire body of the claimant it is just and proper to consider the loss of earning capacity at 15%, which is against the provisions of Section 4(1)(c)(ii) of the Act, which reads as under:
(c) where permanent partial disablement result from the injury (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I. Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had result from the injuries.
Explanation II. In assessing the loss of earning capacity for the purpose of sub- clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
The tribunal ought to have taken atleast 25% disability to the whole body by considering the fact that earlier, the claimant suffered injuries and also filed application under the Motor Vehicles Act. To that extent, the tribunal is not justified in taking 15% disability.
16. The tribunal while awarding compensation has proceeded to award interest at 9% p.a., which is contrary to the provisions of Section 4A(3)(a) of the Act. Therefore, the claimant is entitled to 12% after one month from the date of the accident. The tribunal proceeded to take the monthly wages of the claimant at Rs.11,000/- after deducting 60% and proceeded to award compensation of Rs.2,05,900/-. In view of the notification dated 31.05.2010, issued by the Central Government by exercising the powers under Section 4(1B) of the Employee’s Compensation Act, 1923, the minimum wages has to be taken at Rs.8,000/- p.m. If we take Rs.8,000/-, since the case on the hand pertains to injuries, we have to consider 60% of Rs.8,000/- as per the provision of Section 4(1b) of the Act. Then, the net amount comes to Rs.4,800/- p.m. and taking into consideration the age of the claimant, the suitable relevant factor would be 207.98. Hence, the total amount of loss of earning capacity would come to Rs.2,49,576/- (Rs.4,800/- x 207.98 x 25%) 17. For the reasons stated above, the substantial questions of law framed in the present appeal is to be answered in the negative holding that the tribunal has not justified in assessing the disability at 15% against the evidence of the PW.2 – the doctor who issued Ex.P.8 – disability certificate and the tribunal is not justified in taking 9% interest and the claimant is entitled for 12% interest after one month from the date of accident till realisation.
18. The tribunal has awarded Rs.2,30,000/- towards medical expenses is just and proper and does not require interference of this Court. The claimant is entitled for the compensation is as under:
Loss of earning capacity Rs.2,49,576/- (Rs.8,000/- x 60% x 25% x 207.98) Medical expenses Rs.2,30,000/-
Total Rs.4,79,576/-
19. In total, the claimant is entitled to Rs.4,79,576/- as against Rs.4,35,900/- awarded by the Tribunal, with interest at the rate of 12% per annum after one month from the date of accident till realization.
20. Accordingly, the appeal filed by the claimant is allowed-in-part. The impugned judgment and award dated 07.07.2018 reviewed judgment pronounced on 21.08.2018, in ECA.No.37 of 2016 is hereby modified and the claimant is entitled for Rs.4,79,576/- with 12% interest per annum after one month from the date of accident till realization.
Ordered accordingly.
Sd/- JUDGE nvj