IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA MISCELLANEOUS FIRST APPEAL NO.3207/2016 (WC) BETWEEN:
SRI SHANKAR @ SHANKARAPPA S/O SRI NARASIMHAPPA AGED 25 YEARS, OCC: CLEANER IN A LORRY R/AT. SIRIVARA LAYPAKSHI MANDALAM HINDUPUR TALUK ANANTHPUR DISTRICT ANDHRA PRADESH STATE – 515001 (BY SRI SURESH M. LATUR, ADV.) AND:
1. MR. MOHAMMED SHAFI S/O. BASHU SAB NO.47, 4TH CROSS K.P.N. EXTENSION BENGALURU – 560 002 ... APPELLANT 2. THE REGIONAL MANAGER THE UNITED INDIA INSURANCE CO LTD KRISHI BHAVAN BUILDING HUDSON CIRCLE BENGALURU – 560 002 ... RESPONDENTS (BY SRI K. SURESH, ADV. FOR R2 VIDE COURT ORDER DATED 05.04.2019, NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION U/S.30(1)(A) OF THE EMPLOYEES’ COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DT.14.08.2015 PASSED IN ECA NO.27/2014 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, MEMBER, MACT-4, COURT OF SMALL CAUSES, BANGALORE, 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 parties, it is taken up for final disposal.
2. The appellant – claimant has filed the present miscellaneous first appeal against the judgment and award dated 14.08.2015 made in ECA.No.27/2014 on the file of the MACT, Court of Small Causes, Bengaluru, SCCH-4, (hereinafter referred to as ‘the Tribunal’ for brevity) awarding total compensation of Rs.87,501/- with interest at 12% per annum from the date of accident till realisation.
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 – claimant that he was working as a cleaner in a Lorry bearing registration No.KA-01-D-9009 under the employment of respondent No.1 – owner of the said Lorry. He has contended that he was earning Rs.4,000/- per month and Rs.50/- as Batta per day. He further contended that on 20.02.2010, at about 04.00 p.m., when he was traveling in the said Lorry on duty as a cleaner on NH-207, Soolibele Road, Near Giriyamma Circle, Devanahalli, at that particular point of time, the driver of the said vehicle drove the same with high speed in a rash and negligent manner and dashed against unknown Lorry, which was parked. Due to the said accident, the appellant – claimant sustained fracture of left leg, pelvis fracture right side and other grievous injuries all over the body. Immediately, he was shifted to Devanahalli Government Hospital and from there, he was shifted to Bowring and Lady Curzon Hospital, Bengaluru, wherein he was under treatment even on the date of filing the petition.
5. He would further contend that he has spent Rs.10,000/- towards medical expenses and jurisdictional police have also registered a criminal case against the driver of the Lorry in Cr.No.12/2010 for the offences punishable under Sections 279, 337 and 338 of IPC. He contends that the accident has occurred arising out of and during the course of his employment. Due to the said accident, he is suffering from permanent disability. Respondent Nos.1 and 2 are the owner and insurer respectively, and hence, he sought for compensation as prayed for.
6. In response to the notice, respondent No.1 remained absent and he was placed exparte. Respondent No.2 – insurance company filed objections denying the averments made in the claim petition and contended that, the respondent No.1 has entrusted the said Lorry i.e., Heavy Transport Vehicle to drive to his driver who has not possessed effective driving license to drive HTV from competent authority and therefore, the liability cannot be fastened on the insurance company.
The insurer further contended that the claimant was neither working as a cleaner nor getting monthly wages of Rs.4,000/- p.m. and Rs.50/- as batta as alleged by the claimant. It is contended that the claimant was travelling in the goods Lorry as an unauthorized passenger and whose risk is not covered as per the terms and conditions of the policy. Hence, he sought for dismissal of the claim petition.
7. Based on the pleadings, the Tribunal framed the following issues:
“1. Whether the petitioner proves that he was the cleaner of the Lorry bearing Reg.No.KA-01-D- 9009 and has sustained injuries as mentioned in Wound Certificate, in a road traffic accident on 20-02-2010 at about 4.00 a.m., which was dashed against unknown parked lorry, near NH- 207, Soolibele road, near Giriyamma circle, Devanahalli?
2. Whether the petitioner proves that he was the employee of the respondent No.1 as on the date of alleged incident?
3. Whether the petitioner is entitled for any compensation? If so, to what extent and from whom?
4. What Order?
8. In order to establish the case, the claimant got examined himself as PW.1, the doctor who treated him as PW.2 and marked documents as Exs.P.1 to P.10. On the other side, the insurance company neither examined any witness nor marked any documents.
9. The Tribunal after considering both oral and documentary evidence on record has recorded the finding that the claimant has proved that the road traffic accident has occurred on 20.02.2010, due to rash and negligent driving by the driver of the Lorry bearing registration No.KA-01-D-9009, arising out of and during the course of employment under respondent No.1 and thus, the claimant is entitled for compensation. Accordingly, the tribunal by the impugned judgment and award dated 14.08.2015 awarded total compensation of Rs.87,501/- with 12% interest per annum from the date of the accident till realisation. Being aggrieved by the same, the claimant – appellant has filed the present appeal seeking enhancement of compensation.
10. The Insurance Company has not filed any appeal against the impugned judgment and award passed by the tribunal.
11. I have heard the learned counsel for the parties to the lis.
12. Sri Suresh M. Latur, learned counsel for the appellant – claimant contended that the tribunal is not justified in taking the monthly wages of Rs.4,000/-, when the claimant was also getting Rs.50/- as batta per day and hence, the total income ought to have taken is Rs.5,500/-. The tribunal has also erred in not considering the evidence of the doctor – PW.2, who has stated on oath that the claimant has sustained 38% of the disability to both lower limbs and permanent residual physical disability of about 19% to the whole body. In view of the said disability, the claimant is unable to work as a cleaner and cannot do any manual work also. In the cross-examination nothing has been elicited from the mouth of PW.2.
13. He further contended that the claimant suffered grievous injuries, which are as under:
a. Fracture of Tibia and Fibula of Left leg b. Fracture of Superior and Inferior Pubic Rami of Right Hemi Pelvis.
c. Fracture of Acet Abulum Left.
He also relied upon the judgment of the Division Bench of this Court in MFA.No.2855/2006 D.D. on 06.02.2012, between The Oriental Insurance Company Limited and Sri Shivashankar wherein, this Court at para No.7 has held as under:
“7. As rightly pointed out by the learned Counsel appearing for the insurer, the Commissioner for Workmen’s Compensation has erred in holding that the first respondent – claimant has suffered 100% disability, for calculating compensation payable towards loss of earning capacity and it is disproportionate to the nature of injuries sustained, for the reason that the doctor who was examined has assessed the disability of 38% to the left lower limb and 20% to the whole body. Having regard to the age, avocation and nature of injuries sustained, we can safely hold that the 1st respondent claimant has suffered 60% disability towards loss of future earning capacity, instead of 100% held by the Commissioner for Workmen’s Compensation. However, the Commissioner for Workmen’s Compensation is justified in assessing the income of the 1st respondent – claimant. He was aged about 22 years and he was hale and healthy being a skilled laborer working as a loader. We can safely take 60% as the loss of earning capacity. Accordingly, 60% of Rs.3,000/- would come to Rs.1,800/-. The appropriate factor as rightly adopted by the Commissioner for Workmen’s Compensation is 221.37 and the same is accepted.”
Hence, he sought to allow the appeal filed by the claimant by enhancing the compensation as prayed for.
14. Per contra, Sri K. Suresh, learned counsel for respondent No.2 - insurer sought to justify the impugned judgment and award and contended that as on the date of the accident, under Section 4(1) Explanation II of the Workmens’ Compensation Act, 1923, has specified only Rs.4,000/- as monthly wages and the tribunal has considered the same while calculating the compensation. Admittedly, the doctor – PW.2, who has treated the claimant has opined that the claimant is suffering from 19% permanent disability to the whole body and therefore, the tribunal has rightly taken the disability as 15% to the whole body. Hence, he sought to dismiss the appeal.
15. This Court while admitting the appeal framed the following substantial question for its consideration:
“1. Whether the Tribunal is justified in taking the disability of the claimant at 15% in view of categorical evidence of PW.2 – doctor and in view of the provisions of Section 4(1)(c)(ii) of the Employees’ Compensation Act, 1923?”
16. Having heard the learned counsel for the parties, it is undisputed fact that the claimant who was working under respondent No.1 as cleaner in the Lorry bearing registration No.KA-01-D-9009 sustained following injuries, arising out of and during the course of employment:
a. Fracture of Tibia and Fibula of Left leg b. Fracture of Superior and Inferior Pubic Rami of Right Hemi Pelvis.
c. Fracture of Acet Abulum Left.
The accident which occurred on 20.02.2010 is evidenced from the material documents - Exs.P.2 to P.6. It is the specific case of the claimant – PW.1 that he was earning total monthly wages of Rs.5,500/- p.m. i.e., Rs.4,000/- as monthly wages and Rs.50/- as batta. But he has not produced any material document to prove his income before the tribunal. Therefore, the tribunal was justified in taking Rs.4,000/- as monthly wages. Though the doctor – PW.2 has stated in his evidence that the claimant has suffered three fractures, 19% permanent disability and he cannot walk and do manual work, the tribunal has proceeded to take the disability only at 15%, which is contrary to 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;
17. Considering the dictum of the Division Bench of this Court in the case of The Oriental Insurance Company Limited Vs. Sri Shivashankar in M.F.A.No.2855/2006 D.D. on 06.02.2012, at para No.7, which is already extracted above and taking into consideration the peculiar facts and circumstances of the case and the evidence of the doctor – PW.2, the tribunal ought to have taken atleast 50% as permanent disability due to the accident. The insurance company has not laid any strong evidence to disbelieve the same. Hence, the permanent disability can be assessed at 50%. If the income of the claimant is taken as Rs.4,000/- and after considering 60% as contemplated under the provisions of Section 4(1)(b) of the Act, the net income comes to Rs.2,400/-. Taking into account the age of the claimant as 26 years, the relevant factor would be Rs.2,400 x 215.28 x 50%, the amount of compensation would come to Rs.2,58,336/-.
18. The tribunal has awarded Rs.10,000/- towards medical expenses, which is just and proper and interference is uncalled for.
19. For the reasons stated above, the substantial question of law framed in the present appeal has to be answered in the negative, holding that the tribunal is not justified in taking the disability only at 15% as stated supra but is entitled for 50% disability. Accordingly, the judgment and award of the tribunal in ECA.No.27/2014 dated 14.08.2015 passed by the MACT, Court of Small Causes, Bengaluru is modified and the claimant is entitled for the compensation is as under:
Compensation as per Section 4(1)(b) Rs.2,58,336/- (Rs.2,400/- x 215.28 x 50%) Medical expenses Rs. 10,000/-
Total Rs.2,58,336/-
In total, the claimant is entitled to Rs.2,58,336/- as against Rs.87,501/- awarded by the Tribunal, with interest at the rate of 12% per annum after one month from the date of accident till realization.
20. The enhanced compensation shall be disbursed to the claimants in terms of the judgment and award passed by the tribunal.
Sd/- JUDGE nvj