Karnataka High Court
M/S Kirloskar Electric Company Ltd vs Sri Narayan K on 30 August, 2012
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.8904/2010 (WC)
BETWEEN:
M/s.Kirloskar Electric Company Ltd.
Sy. No.16, Govinahally
Thyamagondlu Hobli
Nelamangala Taluk
Bangalore Rural District - 562 123
Rep. by its Vice President (Legal)
and Company Secretary
Mr.P.Y.Mahajan. ... Appellant
(By Sriyuths Somashekar & Harish R., Advocates for
M/s.S.N.Murthy Associates, Advocates)
AND:
1. Sri Narayan K.
Aged about 40 Years
Token No.3536
2. Sri Shivamadaiah B.K.
Aged about 49 Years
Token No.4330.
3. Sri Ramamurthy M.
Aged about 40 Years
Token No.3218.
4. Sri Gunashekar. M
Aged about 47 Years
Token No.3236.
2
R1 to R4 addresses are
C/o General Secretary
Kirloskar Electric Company
Naukarara Sangha
No.212, 1st Main Road
18th Phase, Subramanya Nagar
Bangalore - 560 021. ...Respondents
(By Sriyuths M.S.Nagaraja & H.C.Ramaswamy, Advocates)
This appeal is filed under section 30(1)(a) of Workmen's
Compensation Act, against the judgment/award dated
09.08.2010, passed in WCA/NFC/CR-26A, 26B, 26C &
26D/2010, on the file of the Labour Officer and Commissioner for
Workmen's Compensation, Sub Division-1, Bangalore, awarding
compensation and etc.
This appeal coming on for orders this day, the court
delivered the following:
JUDGMENT
In this appeal, appellant has raised following substantial questions of law:-
"a) Whether the impugned order is contrary to the Division Bench judgment reported in 1976(2) KLJ 396 as there is no loss of earning capacity?
b) Whether the impugned order is contrary to the full bench judgment reported in ILR 2004 Kar. 193 - Para 25(iii) as the respondents have not established that they are not able to do any other work after the alleged accident?3
c) Whether compensation payable is proportionate to loss of earning capacity under section 4(1)(c)(ii) when the injury complained by the respondents are not specified in Schedule - I of W.C.Act?"
2. I have heard Sri Somashekhar, learned counsel for appellant and Sri H.C.Ramaswamy, learned counsel for claimants.
3. The learned counsel for appellant relying on a judgment of this court, reported in 1976 (2) Kar.L.J. 396 (in the case of Divisional Manager, KSRTC Vs. Bhimaiah) would submit that claimants continue to work in the establishment of appellant and their salary is being periodically increased. Therefore, there is no loss of earning capacity and the Commissioner for Workmen's Compensation was not justified in awarding compensation for loss of earning capacity. However, learned counsel for appellant would make an exception to the case of one of claimants namely 4 Gunashekar.M, whose left ring finger was amputed as a result of accident.
4. The learned counsel for appellant would submit that loss of earning capacity for amputation of left ring finger in terms of Schedule-I would be 7%.
5. The learned counsel for appellant has also relied on the judgment of Full Bench of this court, reported in ILR 2004 KAR 193 (in the case of Shivalinga Shivanagowda Patil & others Vs. Erappa Basappa Bhavihala and others) to contend that determination of loss of earning capacity has to be not only with reference to the work which the workman was performing at the time of accident but also with reference to his capacity to do any other work after the accident.
In the case on hand, the Commissioner for Workmen's Compensation has assessed permanent physical disability vis-à-vis loss of earning capacity of claimants namely Sri 5 K.Narayan at 3%, Sri B.K.Shivamadaiah at 10%, Sri M.Ramamurthy at 10% and Sri M.Gunashekar at 20%.
It is not in dispute that claimants had suffered injuries in the course of employment.
As per the impugned award;- claimant namely K.Narayan had suffered cut injury extending from left thumb to upper 1/3rd of left forearm.
Claimant namely B.K.Shivamadaiah had suffered crush injuries of left middle and ring fingers.
Claimant namely M.Ramamurthy has suffered crush injury of left thumb with comminuted fracture of underlying bones.
As per medical evidence of Dr.Priyadarshan claimants have suffered permanent disabilities, consequent to above injuries.
Claimant namely K.Narayan has stiffness of left thumb. Claimant namely B.K.Shivamadaiah has lost sensation of left middle and ring fingers. 6
Claimant namely M.Ramamurthy has restricted movements and stiffness of left thumb.
6. In a decision reported in 2010 ACJ 487 (in the case of S.Suresh Vs. Oriental Insurance Company Ltd. & another), the Supreme Court has held that loss of earning capacity has to be determined having regard to nature of disability with reference to work, which the workman was performing at the time of accident. Therefore, submission of learned counsel for appellant cannot be accepted.
7. The claimants are working in the establishment of appellant.
8. In a decision reported in 1976 (2) Kar.L.J. 396 (in the case of Divisional Manager, KSRTC Vs. Bhimaiah), a Division Bench of this court has absolved KSRTC of its liability, subject to condition that the workman shall be continued in KSRTC till he attains the age of superannuation. If there were breach of this condition, the liability of appellant would revive.
7
In the case on hand, the tenure of claimants in the establishment of appellant is not ensured, it is dependent on several contingencies. There is no evidence on record that claimants have assured tenure in the establishment of appellant till they attain the age of superannuation. Therefore, what has been held by a Full Bench of this court, reported in ILR 2004 KAR 193 (in the case of Shivalinga Shivanagowda Patil & others Vs. Erappa Basappa Bhavihala and others) and a Division Bench judgment of this court, reported in 1976 (2) Kar.L.J. 396 (in the case of Divisional Manager, KSRTC Vs. Bhimaiah) is not applicable to the facts of the instant case.
9. Therefore, the substantial questions of law are answered against appellant.
10. In the result, I pass the following:-
ORDER The appeal is dismissed. The amount deposited by appellant shall be transferred to the Commissioner for 8 Workmen's Compensation, Bangalore Sub Division-1 at Bangalore.
Sd/-
JUDGE SNN