IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A.NO.860 OF 2016 (WC) BETWEEN:
THIPPESWAMY S/O. SIDDAIAH AGED ABOUT 30 YEARS R/O. CHELUGUDDAS CHITRADURGA CHITRADURGA TQ & DIST – 577 501 (BY SRI. M.G. KANTHARAJAPPA, ADV.,) AND:
1. H.R. SURESH S/O LATE H.K. REVANASIDDAPPA AGE MAJOR OWNER OF LORRY BEARING NO.KA-16/A-5377 R/O. NO.7, TARALABALU NAGAR TAMATAKAL ROAD CHITRADURGA TQ & DIST CHITRADURGA – 577 501 2. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE ENKAY COMPLEX KESHAVAPUR HUBLI – 580 020 (BY SRI. M.V. POONACHA, ADV., FOR R-2;
... APPELLANT …RESPONDENTS R-1 IS SERVED BUT UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 03.07.2015 PASSED IN ECA NO.224/2014 ON THE FILE OF THE II ADDITIONAL CEFC-III, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING :
J U D G M E N T The claimant filed the present appeal against the judgment and award dated 03.07.2015 made in ECA No.224/2014 on the file of the II Additional Senior Civil Judge and Additional CFEC-III, Chitradurga (hereinafter referred to as ‘Tribunal’) awarding the total compensation of `1,14,700/- with 9% interest per annum from the date of petition till the date of deposit.
2. It is the case of the claimant that he was working as cleaner under the first respondent who is the owner of the lorry bearing No.KA 16/A-5377 and getting monthly wages at `4,000/- and `100/- bata per day. On 23.06.2008, as per the instructions of the first respondent, the claimant and another were moving in the lorry after loading empty bags from Bengaluru in order to reach Chitradurga. When the said lorry was proceeding on Nandihalli Bridge at about 5.00 pm., driver of the said lorry drove the same in a rash and negligent manner and toppled down on left side of the road. As a result, the claimant and others sustained grievous injuries ie., fracture of neck of right tochantral wedge, fracture of 2nd Metacarpal and other grievous injuries. Immediately, he was shifted to Primary Health Centre, Kyathasandra for First Aid Treatment. Thereafter, he was shifted to Major Hospital, Davanagere as an inpatient for a period of 12 days. X-ray confirms fractures and treated by applying POP. Inspite of best treatment, the claimant has suffered permanent disability and loss of earning capacity.
3. It is the further case of the claimant that the accident has occurred due to the negligent driving of the driver and it was during the course of employment. The first respondent RC owner and the second respondent – insurer are jointly and severally liable to pay compensation to the claimant.
4. First respondent failed to appear before the Tribunal and placed exparte. Second respondent – insurance company filed objections denying the averments made in the claim petition, also accidental injuries sustained by the petitioner and his employment under the first respondent. It is further contended that the first respondent has violated terms and conditions of the insurance policy. Claimant has not at all suffered any disability due to accident. Compensation claimed by the claimant is exorbitant. Further, denied the monthly wages as alleged by the claimant and has sought for dismissal of the claim petition.
5. Based on the aforesaid pleadings, Tribunal has framed the following points for consideration:
1. Whether the petitioners prove that, they have sustained injuries in the R.T.A occurred on 23.06.2008 at about 5.00 pm., near Nandhihalli bridge, during the course of their employment under respondent No.1 while working as hamali and cleaner of lorry bearing Reg.No.KA-16/A-5377?
2. Whether the petitioners are entitled for compensation, If so, how much and from whom?
3. What order or award?
6. In order to prove his case, claimant was examined as PW2 along with a doctor as PW3 and marked the documents as Exs.P1 to P4 and P7 to P9. Respondents have not adduced any oral or documentary evidence to disprove the claim of the claimant.
7. Tribunal based on oral and documentary evidence has recorded a finding that the claimant has proved that he has sustained fracture of grievous injures in road traffic accident occurred on 23.06.2008 during the course of his employment under the first respondent in a lorry bearing No.KA-16/A-5377. Accordingly, the Tribunal has awarded total compensation of `1,14,700/- with 9% interest per annum from the date of petition till the date of deposit. Hence, present appeal is filed by the claimant for enhancement of compensation.
8. Insurance Company has not filed any appeal against the impugned judgment and award passed by the Tribunal.
9. While admitting the appeal, this Court has framed the following substantial questions of law for consideration:
i) Whether the Tribunal is justified in taking the monthly wages of the injured – claimant at `3,500/- per month in the accident occurred on 23.06.2008?
ii) Whether the Tribunal is justified in awarding 9% interest per annum in view of the provisions of Section 4A(3)(a) Employee’s Compensation Act, 1923?
10. Sri.M.G.Kantharajappa, the learned counsel for the claimant contended that the Tribunal erred in taking the monthly wages of `3,500/- per month, even though PW2 has stated on oath that he was earning monthly wages of `3,000/- per month along with `100/- bata every day. He would further contend that the Tribunal has awarded 9% interest per annum instead of 12% p.a. as contemplated under Section 4A(3)(a) of the Employee’s Compensation Act, 1923. Therefore, he sought to allow the appeal.
11. Per contra, the learned counsel for the insurance company has sought to justify the impugned judgment and award and contended that in the absence of any documentary evidence, the Tribunal was justified in taking the monthly income of the claimant at `3,500/- per month and awarded compensation of `1,14,700/- with interest at the rate of 9% per annum from the date of petition till the date of deposit.
12. Having heard the learned counsel for the parties, it is undisputed fact that the claimant was sustained fracture of grievous injuries in the accident occurred on 23.06.2008 due to the rash and negligent driving of the driver of the lorry bearing No.KA-16/A- 5377 arising out of and during the course of employment under the first respondent. The jurisdictional police has registered a criminal case against the driver of the lorry as is evident from the materials placed on record ie., Exs.P1 to P4.
13. It is the specific case of the claimant who has examined as PW2 has stated on oath that he was working as a cleaner under the first respondent who was suppose to pay monthly wages of `4,000/- per month and `100/- per day as bata and the same has not been considered by the Tribunal.
14. Under the provisions of Section 4(1) Explanation-II of Employees Compensation Act, 1923, prior to amendment, monthly wages of the workmen fixed by the Central Government was `4,000/- per month. Admittedly, the accident has occurred prior to the amendment of the old Act. Hence, the Tribunal in all fairness ought to have taken wages of the claimant as `3,500/- per month.
15. It is also not in dispute that the Tribunal, while awarding the compensation on 03.07.2015, has proceeded to award only 9% interest per annum which is contrary to Section 4A(3)(a) of the Employee’s Compensation Act, 1923, the claimant is entitled at 12% interest per annum.
16. Admittedly, the claimant is aged about 24 years. As per the schedule, the relevant factor would be 218.47. In view of the provisions of Section 4(1)(b) of the Act, 60% of the income of the claimant has to be taken out of `4,000/-. The doctor who treated the claimant has stated that the earning capacity of the claimant is 25%.
17. For the reasons stated above, the substantial questions of law framed by this Court have to be held in negative holding that the Tribunal is not justified in taking monthly wages of `3,500/- per month and awarding 9% interest per annum.
`4,000 x 60% x 218.47 x 25% = `1,31,082/- as against the award passed by the Tribunal. The enhancement would be `16,382/-.
18. In view of the above, the Miscellaneous First Appeal filed by the claimant is allowed in part; the impugned judgment and award passed by the Tribunal dated 03.07.2015 is modified. The claimant is entitled for enhanced compensation of `16,382/- (ie., `1,31,082 - `1,14,700) (Rupees sixteen thousand three hundred and eighty two only) with interest at 12% p.a. after one month from the date of accident till the date of realization.
Ordered accordingly.
Sd/-
JUDGE GH