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.9511/2018 (WC) BETWEEN:
Sri. K. Kumar S/o. Kempanaik Aged about 32 years R/o. VaddarahalliVillage KasabaHobli Belagumba Post – 572 101 Tumakuru Taluk & District ... Appellant (By Sri. V.B. Siddaramaiah, Advocate) AND:
1. The United India Insurance Co. Ltd., Branch Office 1st Floor, Jayadeva Complex B.H.Road, Tumakur Town – 572 102. By its Branch Manager 2. Sri. B.N. Prasannakumar S/o. B.C.Nanjundaiah Aged about 54 years Class-I, P.W.D Contractor R/o. Garden House, Garden Road Tumakuru Town-572 102. … Respondents (By Sri P.B. Raju, Advocate for R1;
Notice to R2 is dispensed with v/o dated 03.07.2019) This MFA is filed under Section 30(1) of the Workmen’s Compensation Act, 1923, against the judgment and decree dated 30.11.2017 passed in ECA No.57/2014 on the file of the Principal Senior Civil Judge, MACT-X, Tumakuru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Orders this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the parties to the lis, the matter is taken up for Admission.
2. The present appeal is filed by the appellant for enhancement of compensation against the judgment and award dated 30.11.2017 made in E.C.A.No.57/2014 on the file of Principal Senior Civil Judge and MACT-X, Tumakuru, awarding the total compensation of Rs.5,28,385/- with interest of 12% p.a. from one month after the date of accident till payment.
3. It is the case of the appellant that he was working as a driver under 1st respondent in the lorry bearing Reg. No.KA-06-A-9203 since 10 years and he was earning monthly wages of Rs.6,000/- and Rs.50/- per day as batta. On 05.03.2009, when the appellant was engaged in the lorry and went to bring jelly load from Maidala Village and parked his vehicle for the purpose of loading the jelly and when the JCB was loading the lorry with the jelly, during that point of time, the vehicle all of a sudden started to move back and the workers there shouted, thereby, the appellant who was very nearby tried to stop the vehicle by getting into the cabin. But, unfortuanately the door of the cabin broke and he fell down and the front wheel of the lorry run away over his both legs and he sustained crush injuries and injuries over his body, thereby, he was immediately shifted to Adithya Orthopaedic and Trauma Centre and there he was treated and necessary operations were conducted. The appellant had incurred expenses to an extent of Rs.50,000/- towards hospital charges and due to the accident, the appellant sustained permanent disability to an extent of 100%. The appellant was aged about 28 years and lost the hope of future income to him due to the injuries and accident occurred during the course of the employment. The entire family members are depending upon the earnings of the appellant. Respondent No.1 who is the owner of the vehicle insured the vehicle with the respondent No.2, thereby, both respondents are jointly and severally liable to pay the compensation to the appellant.
4. After notice to the respondents, respondent No.1 had admitted that the claimant is working under him and also admitted that insurance policy was imposed as on date of the accident. Respondent No.2-Insurance Company filed objections and contended that the incident happened only due to the negligence of the claimant himself and therefore, respondent No.1 and the claimant violated the terms and conditions of the policy and is not liable to pay any compensation to the claimant and sought for dismissal of the claim petition.
5. On the basis of the aforesaid pleadings, the Tribunal framed the following issues at paragraph-4 of the claim petition which reads as under:-
“1. Whether the petitioner proves that he is working as employee under respondent No.1 as per Employees Compensation Act?
2. If so, on 05.03.2009 when he was working under respondent No.1 accident occurred and he sustained injuries in the said accident?
3. If so, what is the percentage of loss of income sustained by him?
4. Whether the petitioner proves his age and income on the date of accident?
5. Whether the petitioner is entitled for the compensation? If so, how much and from whom?
6. To what Order or Award the parties are entitled for?”
6. In order to substantiate this case, the claimant examined himself as PW1 and Doctor as PW2 and marked the documents as Exs. P1 to P11, the assistant of respondent No.2 examined himself as RW 1 and produced one document and got it marked as Ex.R1.
7. The Tribunal considering both the documents and evidence has recorded findings that the claimant has proved that he was working as an employee under 1st respondent and accident occurred on 05.03.2009 arising out of and during the course of the employment and he has sustained injuries and accordingly proceeded to award compensation of Rs.5,28,385/- with interest of 12% p.a. to the claimant from the respondents. Hence, the present appeal is filed.
8. The Insurance Company has not filed any appeal against the judgment and award passed by the Tribunal.
9. I have heard learned counsel for the parties to the lis.
10. Sri V.B.Siddaramaiah, learned counsel for the appellant vehemently contended that the Tribunal erred in taking 50% as disability, even though the claimant has sustained facture of both the legs and lost complete working capacity to the extent of 100%. He would further contend that the Tribunal was not justified in taking monthly wages of the claimant as Rs.6,000/- per month and Rs.50/- per day as batta instead of taking consideration of monthly wages as Rs.8,000/- per month. Therefore, he sought to allow the appeal.
11. Per contra, Sri P.B.Raju, learned counsel for respondent No.1 sought to justify the impugned order and contended that admittedly the accident occurred on 05.03.2009, as on that date the wages fixed by the Central Government was Rs.4,000/- and he submits that the Tribunal has taken excess monthly wages. Therefore, he sought to dismiss the appeal.
12. Having heard the learned counsel for the parties, it is an undisputed fact that the claimant has sustained fracture of left Tibia and fracture of right Tibial Candyle as per the wound certificate-Ex.P4 on account of accident occurred on 05.03.2009 arising out of and during the course of the employment, the same is evident from the material documents Exs.P1 to P4. The claimant has stated on oath that he was earning Rs.6,000/- as monthly wages and Rs.50/- per day as batta. The Tribunal considering the entire material on record has proceeded to take monthly wages as Rs.7,500/- per month. In support of the case of the claimant, the Doctor who is examined as PW2 has stated on oath that assessment disability of the claimant as 45% on right leg and 45% on left leg and permanent disability to the extent of 30%, but the Tribunal has taken into consideration the entire material on record and proceeded to take earning capacity of disability as 50%.
13. A careful perusal of the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923(the ‘Act’ for short), it is stated that 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, has taken into consideration. Admittedly, in the present case the Doctor-PW2 who is a qualified doctor has stated on oath that the claimant sustained assessment disability of 45% on right leg, 45% on left leg and permanent disability of 30%. Admittedly, the Tribunal has taken 50% which is well within the provisions of the said Act stated supra.
14. Insofar the contentions of learned counsel for the appellant that the Tribunal ought to have taken the monthly wages of Rs.8,000/- per month cannot be accepted. Admittedly, as on the date of the accident occurred on 05.03.2009, the Central Government exercising powers under sub-section (1)(b) of Section 4 has specified monthly wages of Rs.4,000/-, the Tribunal in the present case has taken Rs.7,500/- and the Insurance Company has not filed any appeal against the income and percentage fixed by the Tribunal.
15. The impugned judgment and award passed by the Tribunal considering the entire material on record is just and proper, the appellant has not made any substantial question of law to interfere with the impugned judgment and award passed by the Tribunal.
Accordingly, Miscellaneous First Appeal is dismissed at the stage of Admission.
Sd/- JUDGE KPS