IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A.No.2372/2017 (WC) BETWEEN SRI. M. SIDDARAJU, SON OF MARIYAPPA, AGED ABOUT 27 YEARS, R/O 376/E, SHARADANAGARA, VASANTHAPURA, SUBRAMANYAPURA, BANGALORE SOUTH-61.
AS PER DL ADDRESS:
VASANTHAPURA, SUBRAMANYAPURA ROAD, ISRO LAYOUT, BANGALORE-78.
... APPELLANT (BY SRI. SHRIPAD V SHASTRI, ADVOCATE) AND 1. K.MANJU, SON OF KRISHNAPPA, NO.445/A, YADALAMNAGARA, SUBRAMANYAPURA POST, BANGALORE-61.
(OWNER OF MARUTHI OMNI KA.05/MH.0821) 2. THE MANAGER, THE UNITED INDIA INS. CO. LTD., MOTOR T.P. HUB, 5TH AND 6TH FLOOR, KRISHI BHAVANA, NRUPATHUNGA ROAD, BANGALORE-01.
... RESPONDENTS (BY SRI. K.P.THRIMURTHY, ADVOCATE FOR SRI. R. RAJAGOPALAN, ADVOCATE FOR R2 V/O DATED 02.04.2018 NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 30(1) OF THE WORKMEN’S COMPENSATION ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 07.10.2016 PASSED IN ECA NO.156/2015 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES (SCCH-16) BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant filed the present appeal before this Court against the judgment and award dated 07.10.2016 made in ECA.No.156/2015 on the file of the X Additional Judge, Court of Small Causes (SCCH-16), Bengaluru, allowing the petition in part by awarding a total compensation of Rs.5,51,540/- with interest at the rate of 12% p.a from the date of accident i.e., 01.03.2015 till its realization.
2. The claimant filed ECA.No.156/2015 under Section 22 of the Workmen’s Compensation Act, 1923, claiming compensation on account of injuries sustained during the course of employment with respondent No.1. On 01.03.2015 at about 5.30 a.m., the claimant was driving a Omni Car bearing No.KA.05/MH.0821 in a rash and negligent manner, because of which, he hit the Car to the road side tree. Due to the said reason, one person died, inmates of the Car and others sustained grievous injuries. The claimant was immediately shifted to the General Hospital, Tharikere by the public, there he took first-aid-treatment and then, shifted to Sahyadri Narayana Multispeciality Hospital, Shimoga. On two occasions, for more than 15 days claimant underwent surgeries for fixation of external fixator as well as steel rods and skin grafting and required two more surgeries in the near future for the removal of the same. It is further case of the appellant that he was earning monthly wages Rs.15,000/- and Rs.100/- as bata per day, totally the income of the appellant is Rs.18,000/- per month. Due to subsisting disability, the appellant is incapable to continue his avocation as driver or manual labor. As on the date of the accident, the appellant was aged about 27 years. Therefore, he is seeking for enhanced compensation.
3. As per the ranking of the parties before the Court below, notice was issued to respondent No.1. Respondent No.1 remained absent, hence he was placed ex-parte.
4. Respondent No.2-Insurance Company filed its objections denying the age, monthly wages/income, avocation of all the petitioners, deceased and also manner in which the accident took place. It is further contended that the accident occurred on account of rash and negligent driving of driver of offending vehicle and contended that it had issued policy in respect of Omni Car, but their liability is subject to terms and conditions of the policy. Respondent No.2 further stated that the compensation claimed by the appellant is exorbitant and baseless. Therefore, sought to dismiss the appeal.
5. Based on the pleadings, the Tribunal framed the following issues, which reads as under:
“ISSUES IN ECA NO.156/2015 1. Whether the petitioner proves that he comes within the purview of the word ‘Employees’ under the provisions of the Employee’s Compensation Act, 1923?
2. Whether the Petitioner proves that the injuries caused to him was during the course of his employment under the respondent No.1?
3. Whether the petitioner proves his age and income?
4. Whether the petitioner proves that the alleged injuries caused to him in the accident dated 1-3- 2015 at about 5.30 a.m. on NH-206 near Belenahalli Village, Tharikere Tq?
5. Whether the petitioner is entitled for compensation? If so, how much and from whom?
6. What order?
6. The claimant was examined as PW-5 and the Doctor was examined as PW-6. The documents got marked at Ex.P.1 to Ex.P.49 in respect of the cases arising out of the same accident. The Insurance Company-respondent No.2 has not led any evidence or produced any documents.
7. The Tribunal considering the entire material on record has recorded a finding that the claimant proved that the accident occurred during the course of the employment under respondent No.1. He also proved his age and monthly wages and also proved that the accident occurred on 01.03.2015 at about 5.30 a.m., at Belenahalli Village near Tarikere Taluk and he is entitled for the compensation. Accordingly, the Tribunal awarded a total compensation of Rs.5,51,540/- with interest at the rate of 12% per annum from the date of accident. Hence, the present appeal filed by the claimant for further enhancement. The Insurance Company has not filed any appeal against the judgment and award passed by the Tribunal.
8. This Court while admitting the appeal framed the following substantial questions of law for consideration:
1. Whether the Commissioner for Workmen’s Compensation/Tribunal is justified in considering disability only at 30%, when PW-6-Doctor has stated on oath that the claimant is suffering permanent disability of both the lower limbs at 58%, in view of the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923?
2. Whether the Commissioner for Workmen’s Compensation/Tribunal is justified in not taking functional disability equal to particular limb of disability as held before the Division Bench of this Court in the case of National Insurance Co., Ltd., vs. Mr. Mastan in M.F.A.No.3103/1997 dated 13.11.2008?
9. I have the heard the learned counsels for the parties to the lis.
10. Sri. Shripad V Shastri, learned counsel for the appellant contended that the impugned judgment and order passed by the Tribunal awarding a total compensation of Rs.5,51,540/- with interest at the rate of 12% per annum from the date of accident is contrary to law and require further enhancement. He further contended that the Commissioner for Workmen’s Compensation/Tribunal erred in considering the subsistence disability, functional disability and disability as stated by PW-6-Doctor, in view of the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923 and erred in taking disability only at 30% instead of 58% with regard to subsisting disability/functional disability. He further contended that Commissioner for Workmen’s Compensation/Tribunal has not justified in considering the functional disability in view of the dictum passed by the Division Bench of this Court in the case of National Insurance Co., Ltd., vs. Mr. Mastan in M.F.A.No.3103/1997 dated 13.11.2008. Therefore, sought to allow the appeal.
11. Per contra, Sri. R. Rajagopalan, learned counsel for respondent No.2 sought to justify the impugned judgment and award passed by the Tribunal and contended that in the absence of any proof or evidence, the Commissioner for Workmen’s Compensation/Tribunal has justified in taking the disability at 30% as PW-6-Doctor who not treated the claimant. He further contended that the impugned judgment and award passed by the Tribunal awarding a total compensation of Rs.5,51,540/- with interest at the rate of 12% per annum from the date of accident is just and proper and the appellant is not entitled for further enhancement, in view of the provisions of Section 30(1) of the Employee’s Compensation Act, 1923.
12. Having heard the learned counsels for the parties, it is undisputed fact that the claimant was working under respondent No.1 as a driver and the accident occurred on 01.03.2015 during the course of employment under respondent No.1 and the claimant has sustained following injuries:
Fracture Shaft of Right Femur.
Type 1 Open fracture both bones right leg.
Type 3C Open segmented Fracture both bones left leg.
It is also stated that on clinical examination Doctor has found the following disabilities:
1. Walks with limp with the help of stick.
2. Scar marks over left leg.
3. Tenderness over left ankle.
4. Restriction of joints movements of left ankle plantar, dorsi flexion – 30 0 normal – 0 - 700 Right knee – flexion – extension 250 Normal-0-1250 5. Left toe movements were restricted.
6. Difficulty to squat on floor and climb upstairs.
7. Difficulty to walk on slope, kneel.
8. Difficulty to stand on left lower limb.
13. It is not in dispute that PW-6-Doctor has specifically stated that as per OPD Slip-Ex-P44 and Ex-P45-1 X-ray, the claimant suffers permanent physical disability to the both lower limbs is 58% and to the whole body disability is 29%. However, the Tribunal proceeded to take disability at 30%, contrary to the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923, which reads as under:
“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”
14. This Court while considering, the very provisions of Employee’s Compensation Act, 1923 in the case of National Insurance Co., Ltd., vs. Mr. Mastan in M.F.A.No.3103/1997 dated 13.11.2008, has held that as per medical certificate issued by the Rajeev Gandhi Accident hospital and Research Institute shows the total limb disability is at 36%, the ‘loss of earning capacity” has to be taken at 36% only.
15. Taking into consideration the age of the claimant i.e., 27 years and date of accident and in view of the specific statement categorically made by PW-6-Doctor that the claimant is suffering permanent disability to the both lower limbs at 58% and taking into consideration that due to disability the claimant walks with limp with the help of stick stated supra, in view of provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923, this Court is of considered opinion that 50% of the disability has to be taken instead of 30% held by the Tribunal.
16. Taking into consideration the monthly wages as taken by the Tribunal is at Rs.8,000/- per month but 60% has to be taken in view of the provisions of Section 4(1B) of the Employee’s Compensation Act, 1923, then the actual monthly wages will be Rs.4800/- and taking into consideration the age of the claimant, relevant factor would be 209.92. The total compensation would be 4800x209.92x50%=5,03,808/- towards ‘loss of earning capacity’. The Tribunal has awarded Rs.2,29,255/- towards medical bills. Therefore, in all the claimant is entitled for a sum of Rs.7,33,063/- (5,03,808+2,29,255=7,33,063) as a compensation with 12% interest per annum.
17. For the reasons stated above, the appeal is allowed in part. The impugned judgment and order is modified, the claimant is entitled for a total compensation of Rs.7,33,063/- against Rs.5,51,540/- awarded by the Tribunal. Total enhanced compensation would be Rs.1,81,523/- with 12% interest per annum from the date of accident till its realization.
Sd/- JUDGE SMJ