IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A.NO.1296/2017 (WC) C/W M.F.A.NO.1297/2017 (WC), M.F.A.NO.716/2017 (WC) AND M.F.A.NO.717/2017 (WC) IN M.F.A.NO.1296/2017:
BETWEEN:
Sri Jayanna S/o Kamaiah Aged about 35 years R/o Kasavigondanahalli Village Challakere Taluk – 577522 Chitradurga District. ... Appellant (By Sri. V.B Siddaramaiah, Advocate) AND:
1. The New India Assurance Co. Ltd., Branch office Opposite to Nanjundeshwara Petrol Bunk, Davanagere Road Chitradurga – 577501 Represented by its Branch Manager.
2. R.K. Associates Electrical Engineers No.8/1, 1st Main Road Sulthanapalya, R.T. Nagar Road Bangalore – 560 032 Represented by its Proprietor.
3. Assistant Executive Engineer KPTCL, Sub-Division, Molakalmuru – 577 535 Chitradurga District.
4. Executive Engineer KPTCL, O & M Division BESCOM, Hiriyur – 572143.
Chitradurga District. … Respondents (By Sri. C R Ravishankar – Advocate for R-1; Sri K. T. Gurudeva Prasad – Advocate for R-2; Sri H. V. Devaraju – Advocate for R-3 and R-4) This MFA is filed under Section 30(1) of the Workmen Compensation Act, against the judgment and award dated 19.10.2016 passed on ECA No. 65/14 on the file of the Senior Civil Judge, JMFC & Commissioner for Employees Compensation, Challakere, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A.NO.1297/2017:
BETWEEN:
Sri Manjunatha @ Manjanna S/o Palaiah 28 years R/o Kasavigondanahalli Village Challakere Taluk – 577522 Chitradurga District. ... Appellant (By Sri. V.B Siddaramaiah, Advocate) AND:
1. The New India Assurance Co. Ltd., Branch office Opposite to Nanjundeshwara Petrol Bunk, Davanagere Road Chitradurga – 577501 Represented by its Branch Manager.
2. R.K. Associates Electrical Engineers No.8/1, 1st Main Road Sulthanapalya, R.T. Nagar Road Bangalore – 560 032 Represented by its proprietor.
3. Assistant Executive Engineer KPTCL, Sub-Division Molakalmuru – 577 535 Chitradurga District.
4. Executive Engineer KPTCL, O & M Division BESCOM, Hiriyur – 572 143.
Chitradurga District. … Respondents (By Sri. C R Ravishankar – Advocate for R-1; Sri K. T. Gurudeva Prasad – Advocate for R-2; Sri H. V. Devaraju – Advocate for R-3 and R-4) This MFA is filed under Section 30(1) of the Workmen Compensation Act, against the judgment and award dated 19.10.2016 passed on ECA No. 56/14 on the file of the Senior Civil Judge, JMFC & Commissioner for Employees Compensation, Challakere, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A.NO.716/2017:
BETWEEN:
The New India Assurance Co. Ltd., Branch office Opposite to Nanjundeshwara Petrol Bunk, Davanagere Road Chitradurga.
Represented by Regional Office Motor Third Party Claims Hub Mahalakshmi Chambers, No.9 2nd Floor, Mahatma Gandhi Road Bangalore – 560 001 By its duly Constituted Attorney. ... Appellant (By Sri. C R Ravishankar, Advocate) AND:
1. Sri Manjunatha @ Manjanna Aged about 30 years S/o Sri Palaiah R/o Kasavigondnahalli Village Challakere Taluk Chitradurga District - 577522.
2. M/s R.K. Associates Electrical Contractors No.9/1, 1st Main Road Sulthanapalya, R.T. Nagar Road Bangalore – 560 032 Represented by its Proprietor.
3. Assistant Executive Engineer KPTCL, Sub-Division Molakalmuru – 577535.
4. Executive Engineer KPTCL, O & M Division BESCOM, Hiriyur – 572143. … Respondents (By Sri. V.B Siddaramaiah – Advocate for R-1; Sri K. T. Gurudeva Prasad – Advocate for R-2; Sri H. V. Devaraju – Advocate for R-3 and R-4) This MFA is filed under Section 30(1) of the Employees Compensation Act, against the judgment and award dated 19.10.2016 passed on ECA No. 56/2014 on the file of the Senior Civil Judge, JMFC & Commissioner for Employees Compensation, Challakere, awarding compensation of Rs.3,95,910/- with interest @ 9% p.a. from the date of incident till deposit.
IN M.F.A.NO.717/2017:
BETWEEN:
The New India Assurance Co. Ltd., Branch office Opposite to Nanjundeshwara Petrol Bunk, Davanagere Road Chitradurga.
Represented by Regional Office Motor Third Party Claims Hub Mahalakshmi Chambers, No.9 2nd Floor, Mahatma Gandhi Road Bangalore – 560 001 By its duly Constituted Attorney. ... Appellant (By Sri. C. R. Ravishankar, Advocate) AND:
1. Sri Jayanna Aged about 37 years S/o Sri Kamaiah R/o Kasavigondanahalli Village Challakere Taluk Chitradurga District - 577522.
2. M/s R.K. Associates Electrical Contractors No.9/1, 1st Main Road Sulthanapalya, R.T. Nagar Road Bangalore – 560 32 Represented by its Manager.
3. Assistant Executive Engineer KPTCL, Sub-Division Molakalmuru – 577535.
4. Executive Engineer KPTCL, O & M Division BESCOM, Hiriyur – 572143. … Respondents (By Sri. V.B Siddaramaiah – Advocate for R-1; Sri K. T. Gurudeva Prasad – Advocate for R-2; Sri H. V. Devaraju – Advocate for R-3 and R-4) This MFA is filed under Section 30(1) of the Employees Compensation Act, against the judgment and award dated 19.10.2016 passed on ECA No. 65/2014 on the file of the Senior Civil Judge, JMFC & Commissioner for Employees Compensation, Challakere, awarding compensation of Rs.2,36,472/- with interest @ 9% p.a. from the date of incident till deposit.
These MFAs’ coming on for admission this day, the Court delivered the following:
J U D G M E N T M.F.A.No.1296/2017 and M.F.A.No.1297/2017 are filed by the claimants in ECA.No.65/2014 and ECA.No.56/2014 respectively, for enhancement of compensation and Insurance Company filed appeals in M.F.A.No.716/2017 and M.F.A.No.717/2017 seeking waiver of paying of interest and for fastening the liability of paying the interest on the owner, against the judgment and award dated 19.10.2016 passed by the Senior Civil Judge, JMFC & Commissioner for Employees Compensation, Challakere in ECA.Nos.56/2014 and 65/2014.
2. The claimants in both ECA.Nos.56/2014 and 65/2014 filed claim petition claiming compensation contending that on 6.6.2010 about 6.00 p.m. as the per instructions of the first respondent both the claimants while tightening the electric wires after replacement, which were connected to the electric poles in front of garden land of Sharanappa of Konasagar Village, Molakalmuru Taluk, due to the negligence of respondent Nos. 2 and 3 and their employees who are in charge of charging of line, have negligently charged the electric line without verifying on-going repair work by both the claimants and due to their negligent act of charging of electric line, both the claimants fell down from the electric poles and sustained severe burnt injuries. Immediately both were shifted to Government Hospital, Molakalmuru.
3. The claimant in ECA.No.56/2014 pleaded that as per the advice of the Doctor, he was shifted to S.S.Hospital, Davanagere, wherein he has taken treatment as inpatient for about 3 to 4 months during which period he underwent surgery by debridement and skin grafting. In the above incident, he has sustained bone deep burnt injuries on the back side, chest and on the entire left hand up to shoulder from left side shoulder to the waist region etc. He has spent about Rs.1,50,000/- for treatment and other expenses.
4. The claimant in ECA.No.65/2014 has contended that the medical officer advised him to take effective treatment, accordingly he was shifted to S.S. Hospital, Davanagere, wherein he was treated as inpatient for 4-5 months and during which period he underwent surgery by debridement and skin grafting. He has sustained bone deep burnt injuries on the back side chest, left femur, right femur and burnt injuries on the entire left side hand up to shoulder to the waist region etc. He has spent about Rs.2,00,000/- for treatment and other expenses.
5. The claimants pleaded that since they sustained injuries during the course of employment under respondent No.1 as workmen and became permanently disabled, respondent Nos. 2 and 3 are vicariously liable for negligent act which caused the accident and hence they are jointly and severally liable to pay compensation. They further contended respondent No.4 who has issued the policy in favour of respondent No.1 covering the liability of workers, which included both skilled and unskilled workers under respondent No.1 whose wages is more than Rs.4,000/-, as on the date of the accident. On the above grounds the claimants sought for enhancement of compensation.
6. The first respondent filed objections in both the petitions admitting the case of the claimants with regard to the narration of the accident, sustaining of injuries by the claimants and shifting them to Hospital. He further admits that both the claimants were working as daily wagers and being paid Rs.200/- per day as wages, under him to carry out the work of erection of electric poles and laying electric wire. He also admitted that respondent Nos. 2 and 3 and their employees who were working at the centre and in charge of charging line and without noticing that the claimants are at work, they have negligently charged the electric line. It is further admitted that both the claimants as per the instructions are working on electric poles on 6.6.2010 and sustained injuries in the said incident as stated supra.
7. The Insurance Company filed objections, denied the averments and contended that the policy covered the risk of employees and that the Insurance Company is liable to pay compensation and at any stretch of imagination it is not liable to pay interest on the compensation awarded by the Tribunal and further contended that the claim petitions have to be dismissed for non-joinder of necessary parties etc. He also denied the wages paid to the claimants and the occurrence of the accident as alleged, and sought for dismissal of claim petitions.
8. Based on the aforesaid pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that, he has sustained injuries in the accident, that was occurred on 16.6.2010 at about 6 p.m. while he was tightening the electric wires to the electric poles in front of the garden land of one Sharanappa of Konasagara village of Molakalmuru Taluk, due to negligent act of employee of respondent Nos. 2 and 3, while he was discharging his duty in the course of employment under respondent No.1?
2. Whether the petitioner is entitled for the compensation? If so, how much and from whom?
3. What order or Award? Additional issue:
(i) Whether the petitioner proves that he was the workmen under the employment of respondent No.1 and was getting Rs.300/- per day as wages from respondent No.1?
(ii) Whether the respondent No.1 proves that petition is bad for non-joinder of necessary party?
(iii) Whether the petitioner proves that respondent No.4, issued insurance policy in favour of respondent No.1 covering the liability as on the date of accident? (sic) 9. In order to prove the case of claimants, the claimants examined themselves as PWs.1 and 2, respectively and also examined Dr.Venkatasivareddy, as PW.3 and marked documents Exs.P.1 to P.23. To rebut the same the first respondent examined his Head of Projects as RW.1 and got marked a document at Ex.R.1. Respondent No.2 examined Assistant Executive Engineer, Molakalmuru as RW.2 and got marked 14 documents at Exs.R.3 to R.17; respondent No.4 examined his Assistant (Administration) as RW.3 and got marked the Policy at Ex.R.19.
10. The Tribunal considering both oral and documentary evidence on record, has recorded a finding that both the claimants have proved that they have sustained injuries in the incident occurred on 6.6.2010 at about 6.00 p.m. As the per instructions of the first respondent both the claimants while tightening the electric wires after replacement, which were connected to the electric poles, due to the negligence of respondent Nos. 2 and 3 and their employees, the accident occurred during the course of the employment and claimants are entitled for compensation and also proved that they were getting Rs.200/- as daily wages. The Tribunal also held that additional issue No.2 does not survive for consideration. Accordingly, by the impugned judgment and award the Tribunal proceeded to award compensation of Rs.2,36,472/- with interest at 9% per annum to the claimant in ECA.No.65/2014 and awarded a compensation of Rs.3,95,910/- with interest at 9% p.a. to the claimant in ECA.No.56/2014. Hence the present appeals are filed by the claimants for enhancement of compensation and Insurance Company has filed the appeals in so far as fixing liability of payment of interest is concerned.
11. I have heard the learned counsel for the parties to the lis.
12. The appeals filed by the claimants are admitted to consider the following substantial questions of law:-
i) Whether the Tribunal is justified in taking monthly wages of the injured at Rs.6,000/- per month when the accident occurred on 06.06.2010, in view of the notification issued by the Central Government on 31.05.2010 exercising powers under sub-section 1(B) of Section 4 of Employee’s Compensation Act, 1923 ?
ii) Whether the Tribunal is justified in taking 20% of the disability of the claimants, when the doctor-PW3 stated on oath that both the claimants have suffered 40% and 45% respectively ?
13. The appeals filed by the Insurance Company is admitted to consider the following substantial question of law:-
“Whether the Tribunal is justified in fastening the liability to pay interest by the insurance company, when Ex.R2-insurance policy does not cover the interest, in the facts and circumstances of the case?
14. Sri.V.B.Siddaramaiah, learned counsel for the appellants / claimants vehemently contended that the Tribunal has proceeded to take monthly wages at Rs.6,000/-. Admittedly, the accident occurred on 6.6.2010, ignoring the notification dated 31.5.2010 issued by the Central Government exercising powers under sub-section (1)(B) of Section 4 of the Employee’s Compensation Act (‘the Act’ for brevity) specified the monthly wages at Rs.8,000/-. He further contended that the Tribunal proceeded to take the disability of the claimants at 20% and 30% respectively, ignoring the provisions of Section 4(1)(c)(ii) of the Act. Therefore, he sought for allowing the petitions filed by the claimants for enhancement of compensation and dismiss the appeals filed by the Insurance Company.
15. Per contra Ravishankar, learned counsel for the Insurance Company i.e., the appellants in M.F.A.Nos.716/2017 and 717/2017 contended that as per the contractual policy Ex.R-2, though the Insurance Company is liable to pay compensation it is not liable to pay interest, but the Tribunal proceeded to fasten the liability of paying the interest on the Insurance Company which cannot be sustained. He further contended that the Tribunal taking into consideration, the nature of the accident and injuries sustained by the claimants, has rightly taken the monthly wages of the claimants at Rs.6,000/- per month and the same is justified. It is further contended that the Doctor who has examined the claimants is facing several charges.
Therefore, the Tribunal was justified in taking the percentage of disability at 20% and 30%, respectively. Therefore, he sought for dismiss the appeal filed by the claimants and allow the appeals filed by the Insurance Company.
16. Learned counsel for respondent No.2 in both the matters has fairly submitted that, in view of the policy, the interest has to be paid by respondent No.1 and not the Insurance Company. The said submission is placed on record.
17. Having heard the learned counsel for the parties, it is not in dispute that both the claimants sustained grievous injuries on account of accident occurred on 6.6.2010 at 6.00 p.m. while they were attending electric wires on account of negligence of respondent Nos. 2 and 3, arising out of and during the course of employment under the first respondent. The finding of fact recorded by the Tribunal that accident occurred arising out of and during the course of employment is not challenged by the Insurance Company or the owner. The same is evidenced from the oral evidence of PWs.1 and 2 and material documents Exs.P.1 to P.5. It is the specific case of both the claimants that they were under the employment of respondent Nos.1 and 3 earning Rs.300/- per day i.e., 9,000/- for month. The Tribunal proceeded to consider the monthly wages of claimants at Rs.200/- per day instead of Rs.300/-. It is also not in dispute that both the claimants were examined by the Doctor-P.W.3 who has stated on oath that claimant in ECA.No.65/2014 suffered disability of 40% and claimant in ECA.No.56/2014 suffered 45%, whereas the Tribunal proceeded to take the disability at 20% and 30% contrary to the provisions of Section 4(1)(c)(ii) of the Act, which reads as under:
“4.(1)(c)(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. x x x Explanation II. In assessing the loss of earning capacity for the purposes 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;”
18. Though the learned counsel for the Insurance Company tried to persuade this Court that there are allegations against the Doctor who examined the claimants and therefore his evidence cannot be taken as gospel truth, the said argument cannot be accepted as the Insurance Company has not produced any material documents to support his argument that the doctor is suspended or removed from the Board of Doctors. Therefore, the evidence cannot be accepted in the absence of any penalty imposed by the Disciplinary Authority. As long as the Insurance Company allows the Doctor to adduce evidence and cross examines the Doctor, this Court is bound by provision of Section 4(1)(c)(ii) of the Act.
19. In so far as contention of the learned counsel for the claimants that the claimants who are getting daily wages of Rs.300/- that is Rs.9,000/- per month the Tribunal proceeded to take daily wages at Rs.200/- and thereby taking Rs.6,000/- per month. Admittedly, the accident occurred on 6.6.2010. The Central Government by a notification dated 31.5.2010 exercising provisions under Section 4(1)(B) of the Act specified the wages at Rs.8,000/- per month. Therefore, in all fairness the Tribunal ought to have taken monthly wages of the claimants at Rs.8,000/- and after considering 60% in view of provisions of Section 4(1)(B) of the Act.
20. If monthly income of the claimants is taken at Rs.8,000/- the compensation works out to as under:
(i) In respect of claimant in ECA.No.65/2014:
8000 x 60% = 4800 x 197.06 x 40 = Rs.3,78,355.20.
(ii) in respect of claimant in ECA.No.56/2014: 8000 x 60% = 4800 x 219.95 x 45 = Rs.4,75,092/-.
21. For the reasons stated above, the substantial questions of law framed in the appeals filed by the claimants has to be held in the negative by holding that the Tribunal was not justified in taking monthly wages of claimants at Rs.6,000/- and disability 20% and 30%, respectively, contrary to the provisions of the Act as stated supra and as per the evidence of Doctor-PW.3.
22. In view of the aforesaid reasons and in view of the specific and fair submissions made by respondent No.2, this Court is of the opinion that the Tribunal was not justified fastening the liability to pay interest on the Insurance Company since as per the contractual policy, the Insurance Company is not included payment of interest. Therefore, the substantial questions of law framed in the appeals filed by the Insurance Company in M.F.A.Nos.716/2017 and 717/2017 has to be held in the negative holding that the Tribunal is not justified in fastening the liability to pay interest by the Insurance Company, in view of terms of the policy and as fair submission made by the learned counsel for respondent No.2.
23. For the reasons stated above, the appeals filed by the Insurance Company and the appeals filed by the claimants are allowed-in-part.
(i) the appellant in M.F.A.No.1297/2017 arising out of ECA.No.56/2014 is entitled total compensation of Rs.4,75,092/- as against Rs.3,95,910/- awarded by the Tribunal.
(ii) the appellant in M.F.A.No.1296/2017 arising out of ECA.No.65/2014 is entitled to total compensation of Rs.3,78,355.20 as against Rs.2,36,472/- awarded by the Tribunal.
(iii) The amount in deposit made by the Insurance Company before this Court with accrued interest, if any, shall be transferred to the jurisdictional Tribunal, forthwith.
(iv) In view of the aforesaid discussions, both the Insurance Company and the insured are jointly and severally liable to pay the compensation. But the Insurance Company is not liable to pay interest on the compensation awarded and only respondent No.2 is liable to pay interest at the rate of 12% per annum from 30th day of the accident, till the realisation.
Sd/- JUDGE RS/* Ct:b