IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA M.F.A. NO.1473 OF 2016 (WC) BETWEEN:
SRI S. RAGHAVENDRA S/O LATE SHANKARAPPA AGED ABOUT 26 YEARS S.R.E. BUS CLEANER RESIDING AT HIREHALLY VILLAGE CHALLAKERE TALUK – 577 522 CHITRADURGA DISTRICT. ... APPELLANT (BY SRI. SHIVAKUMARAPPA T.C. FOR SRI. B.M. SIDDAPPA, ADVOCATE) AND 1. SMT. B.C. MEGHA BANDLA D/O B S CHIDANANDAREDDY AGE: MAJOR OWNER OF SRE BUS BEARING NO.KA-16/B-134 RESIDING AT H.P.O. ROAD CHITRADURGA TOWN – 577 501.
2. THE BRANCH MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD. 3RD FLOOR, VAISHNAVAI PLAZA CAST END ROAD, J P NAGAR RICHMOND ROAD, BENGALURU – 560 002. ... RESPONDENTS (BY SRI. B. PRADEEP, ADVOCATE FOR R2 R1 IS SERVED BUT UNREPRESENTED) THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED:25.8.2015 PASSED IN ECA.NO.6/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, CHALLAKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND FURTHER SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant/claimant has filed the present Miscellaneous First Appeal for enhancement against the judgment and award dated 25.08.2015 made in E.C.A.No.6/2015 on the file of Senior Civil Judge and Additional MACT, Challakere awarding total compensation of Rs.47,295/- with 9% interest from the date of the petition till realization.
2. It is the case of the claimant that he was working as a cleaner of the bus bearing registration No.KA- 16-B-134 under the first respondent. On 23.06.2010 at about 9.00 p.m. when he was discharging his duty as a cleaner in the bus and when he was putting the luggage on the top of the bus, the driver of the bus rashly and negligently started the bus and caused the accident. Due to the said accident, he sustained injuries and taken treatment at Government Hospital, Bhadravathi as an inpatient for about 3 days. Thereafter, he was shifted to Basaveshwara Hospital, Chitradurga. In spite of better treatment from the expert, he was not recovered from severe pain and still he is taking the follow-up treatment as an inpatient and outpatient as per the advice of the doctor and spent an amount of Rs.50,000/- towards medical expenses. Further, it has been asserted that due to severe injuries and fractures, he is having severe uncontrollable pain in the fracture portion and it caused permanent disablement from discharging any kind of his avocation independently.
3. He further contended that he has lost his physical capacity and also earning capacity and there are restrictions to sit, stand, move, walk, climb steps, movement of left leg is completely restricted, unable to walk few meters and he is limping and etc. He further contended that he was an employee of the respondent No.1 with monthly wages of Rs.6,000/- with Rs.100/- per day as batta. He further contended that he sustained injuries while he was discharging his duty during the course of the employment. Hence, the 1st respondent being the owner of the lorry and 2nd respondent being the insurer of the lorry are liable to pay the compensation.
4. In response to the notice issued, 1st respondent appeared but did not filed the objections. 2nd respondent appeared through its counsel and filed its written statement and denied the averments made in the claim petition. It is specifically pleaded that the status of the policy is under verification. Therefore, 2nd respondent has not admitted the insurance policy and liability is subject to terms and conditions of the policy. Further, it is contended that the driver of the offending vehicle was not possessing the valid driving licence. Therefore, he cannot be held liable to pay the compensation. Further, it is contended that at the time of accident, the offending vehicle was not possessing valid route permit and it is further contended that the driver of the offending vehicle was not impleaded as a party who is a necessary and proper party to the proceedings and denied other averments made in the claim petition.
5. Based on the aforesaid pleadings, the Commissioner of Workmen’s Compensation (hereinafter referred to as ‘Tribunal’) framed the following issues:
“1.Whether the petitioner proves that he has sustained injuries in the road accident that was occurred on 23.06.2010 at about 9.00 p.m., inside the private Bus Stand of Shimoga, while he was discharging his duty as a cleaner in the bus bearing No.KA-16-B- 134 of respondent No.1 during the course of his employment under respondent No.1?
2. Whether the respondent No.2 proves that at the time of accident, driver was not possess effective driving licence?
3. Whether the petitioner is entitled for compensation? If so, how much? From whom?
4. What order or award?
6. In order to establish the case, the claimant examined himself as PW-1 and doctor was examined as PW-2 and got marked documents as Exs.P1 to P18. No oral and documentary evidence was adduced on behalf of Insurance Company.
7. The Tribunal after considering the oral and documentary evidence on record has recorded a finding that the claimant has proved that he has sustained injuries in a road traffic accident that occurred on 23.06.2010 due to rash and negligent driving of the driver of the bus bearing Registration No.KA-16-B-134 arising out of and during the course of employment. It is further held that 2nd respondent failed to prove that at the time of the accident, the driver was not possessing the effective driving licence. Accordingly, the Tribunal by the impugned judgment and award has awarded a compensation of Rs.47,295/- along with interest @ 9% p.a. from the date of petition till its realization. Aggrieved by the same, the present appeal is filed by the claimant seeking further enhancement.
8. The Insurance Company has not filed any appeal against the impugned judgment and award.
9. This Court while admitting the appeal has framed the following issues:
“1. Whether the Commissioner of Workmen’s Compensation/Tribunal is justified in taking the income of the injured/claimant at Rs.4,000/- in view of provisions of Section 4(1B) of the Employee’s Compensation Act, 1923?
2. Whether the Commissioner of Workmen’s Compensation/Tribunal is justified in awarding interest @ 9% on the compensation amount in view of provisions of Section 4A(3)(a) of the Employees Compensation Act, 1923?”
10. I have heard the learned counsel for the parties to the lis and perused the material evidence on record carefully.
11. Learned Counsel for the appellant contended that the impugned judgment and award passed by the Tribunal awarding compensation of Rs.47,295/- along with interest @ 9% p.a. from the date of petition till its realization cannot be sustained and liable to be set aside. He would further contended that when the accident occurred on 23.06.2010 after amendment of the provision of sub-Section 1(B) of Section 4 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘Act’), the Tribunal is erred in taking the monthly income of the claimant at Rs.4,000/- instead of Rs.8,000/- as notified by the Central Government by a Notification dated 31.05.2010 specifying the monthly wages of Rs.8,000/-. He would further contended that the Tribunal has erred in awarding interest @ 9% p.a. on the compensation amount which is against to the provisions of Section 4A(3)(a) of the Act. Therefore, he sought to allow the appeal.
12. Per contra, learned Counsel for the Insurance Company sought to justify the impugned judgment and award passed by the Tribunal and contended that it is the specific case of the claimant that he was working as a cleaner and 1st respondent used to pay Rs.6,000/- p.m. Therefore, the Tribunal was justified in taking the monthly wages of the claimant at Rs.4,000/- and further contended that the Tribunal on considering the entire material evidence on record justified in awarding interest @ 9% p.a. and sought for dismissal of the appeal.
13. Having heard the learned counsel for the parties, it is undisputed fact that the claimant was working as a cleaner and sustained grievous injuries in a road traffic accident that occurred on 23.06.2010 arising out of and during the course of employment under the 1st respondent. The same is evidenced from the material documents placed on record i.e., Exs.P1 to P6. It is the specific case of the claimant that he was working as a cleaner under the 1st respondent and 1st respondent used to pay Rs.6,000/- as monthly wages and Rs.100/- per day as batta. Admittedly, the accident occurred on 23.06.2010. The Central Government by a notification dated 31.05.2010 specified the monthly wages at Rs.8,000/-. Therefore, the Tribunal was not justified in taking the monthly wages at Rs.4,000/- and it ought to have taken Rs.8,000/- as monthly wages.
14. The Tribunal proceeded to award interest @ 9% on the compensation amount which is against to the provisions of Section 4A(3)(a) of the Act.
15. For the reasons stated supra, the substantial questions of law framed in the present appeal are to be answered in the negative holding that the Tribunal is not justified in taking the monthly wages of the claimant at Rs.4,000/- and it should have taken the monthly wages at Rs.8,000/- and in view of the facts and circumstances of the present case, claimant is entitled for 12% interest.
16. If we take the monthly wages of the claimant at Rs.8,000/- in view of the provisions of Section 4(1)(b) of the Act, 60% has to be considered as disability which comes to Rs.4,800/- p.m. Taking into consideration the age of the claimant, the relevant factor would be 197.06. The amount of compensation under the Act would comes to Rs.94,588.80/- (Rs.8,000/- x 60% = Rs.4,800 x 197.06 x 40/100). The same is rounded off to Rs.94,590/- and the claimant is entitled for 12% interest after one month from the date of the accident.
17. Accordingly, the appeal filed by the appellant/claimant is allowed in part. The impugned judgment and award dated 25.08.2015 made in E.C.A.No.6/2015 on the file of Senior Civil Judge and Additional MACT, Challakere is hereby modified and the claimant is entitled for compensation of Rs.94,590/- along with 12% interest per annum after one month from the date of accident till realization instead of Rs.47,295/- along with 9% interest awarded by the Tribunal.
18. The Insurance Company is liable to pay the compensation with 12% interest after one month from the date of accident till realization after deducting the compensation if already paid.
Sd/- JUDGE Prs*