Karnataka High Court
The Divisional Controller K S R T C vs Sri T G Shivakumar Murthy on 11 July, 2011
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11 DAY OF JULY, 2011 . BEFORE THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA MISCELLANEOUS FIRST APPEAL NO.3028 OF 2009 AWC): ; BETWEEN: The Divisional Controller, K.S.R.T.C., - Chikmagalur. Represented by its Chief Law Officer; KSRTC, 7 Central Office,. a Bangalore. Be . APPELLANT (By Sri K.S.Bharath Kumar, Adv.) | AND: Sri 7.G. Shi vaki umar Mut thy, S/o. T.S. Gurtsiddaiah, Aged abut 49 years, -.Shankarapura New Layout, | Chi kmagalur Ci ty. ET .. RESPONDENT (By Sri L.Smekar, Adv.) This MFA is filed under Section 30(1) of W.C. Act against. the judgment dated 13.2.2009 passed in WCA/NF- 56/2004" on the file of the Labour Officer and Of Commissioner for Workmen's Compensation, Sub-Division- - 1, Chikmagalur, awarding compensation of 71,98,903/- with interest at 12% p.a. i This appeal coming on for hearing this day, the Court delivered the following: ; JUDGMENT
The respondent was employed as a bus driver in, the:
appellant Corporation. On 12.7.2000, the. vehicle. being :
driven by the respondent met. with an accident in which he : sustained grievous injuries. 3 passengers sustained fatal injuries and succumbed and 30 other passengers sustained grievous injuries and there was damage caused to the bus. A medical officer wno exarnined the: respondent came to the conclusion' that, had had _ suffered 45% _ bodily disability. The Cominissioner for Workmen's Compensation before whom a claim petition was filed by the respondent against the 'appellant, has taken the permanent disability . sand loss-of earning Capacity at 45% and passed an award . fot 21,98,903/- with interest at 12% p.a. Aggrieved, the Cotporation has filed this appeal.
_ 2. Indisputably, disciplinary proceedings were _- initiated against the respondent and an order was passed Nd as a measure of punishment, whereby, the salary of the respondent was reduced to minimum of the time scale of office assistant and was also imposed the punishment of directed to remit %7,760/- being the cost of damages to- the vehicle which was sought to be recovered in wages i.e., in 20 equal instalments.
3. The respondent had sustained ifjury to his left hip joint. Since he was unable to drive the bus, his cadre was changed frem driver to that-of a Helper-B. However, the pay scale of the respondent was protected. At the time of change of cadre" from "Driver to Helper-B i.e., on 10.7.2002, the respandenit was drawing a basic pay of . . 84,689/- and 'the sare pay scale was retained after a change of cadre. The annual increments to the driver being @100/-, on account of change of cadre i.e., Helper-B, "applicable to Helper-B. \ . the annual increment has changed and is being paid as
- : | ooo s i. The appellant Corporation contends that, the Commissioner is not justified in ignoring the alternate employment provided to the workman and the "finding.
recorded that such employment has no relevance for the mo claim made before him and as a result of 'passing' the award to pay %1,98,903/- with-interést is wholly: irrational and illegal. Reliance was placed on the' decision of the Apex Court in the case of PAL RAI VS. NEK. R.T.C (2010) 10 SCC 347 and it was. contencled that, the impugned award calls for interference, .Sriek isc learned counsel for the respondent, on the 'other hand contended 'that, the Commissioner is justified in "passing the impugned award since there is not . - only toss ef earning capacity but there is also permanent * disability "which. has even reduced the mobility of the respondent: Learned counsel submits that, there is not
- only loss of earning capacity, the workman has to suffer . "throughout life on account of permanent disability suffered a arid hence, no interference in the matter i is called for. a &@, In the case of PAL RAJ (supra) the appellant was employed as a driver in NEKRTC and while on auty. a0 accident occurred and he sustained grievous iniurie The. i medical officer opined that there is 65%: total. "body. disability and 20% functional disability. However >the Commissioner for Workmen's: Compénsation:in the claim petition filed, took the functional disability at 85% and quantified the compen Sati sion payable. ~The Corporation which admitted that the clairnant on account 'of the injuries sustained is unabie to drive the vehicle and appointed him as a peon in the Corporation; questioned the quantum compensation was reduced from %1,75,970/- with interest to 41,4 404.80 with interest, The workman questioned the "udament i Award "passed in appeal. Noticing the employment ofthe workman as a peon in the Corporation Apex, Court. has held that the loss of earning capacity has "to be computed keeping in mind the alternate employment _ given: to the appellant on the same salary as he was _ enjoying while performing the duty of a bus driver which 4 SS cannot be ignored in computing the amount of compensation which the appellant was entitled to. While agreeing with the order passed in appeal put in ehalienge before the Apex Court, it was held that, the. percentage of functional disability has to be modified from, 20% LO at . least 35% having regard to. the appeliant's rmebility on account of the medical treatment re received aft er the accident and also because: of the appellant's loss of future earnings and also promotions. The appeal w was accordingly disposed of. | 7: The cese un hand is identical. The respondent is unable to perforta the duty. of a driver. He has been provided with alternate jab in the cadre of Helper-B. The
-_punisnment imposed as a disciplinary measure cannot be a subject matt ter « of consideration in this appeal and the resultant Io oss. "of increments which has attained finality ~ cannot, be 'ignored. Keeping in view the evidence on . record, in my opinion, the percentage of functional oe di sability has to be modified from 45% to 25%, in which event compensation payable stands determined = at %1,10,502/- as against €1,98,903.60 determined by:.the Commissioner.
compensation payable by the appellant to the respondent stands determined at %1,10,502/~.with interest. as. ordered by the Commissioner inthe impugned award. ee Out of the amount.in deposit, the cornpensation and interest determined supra be sent tothe office of the Commissioner and. the balance amount be refunded to the Commissioner. No. costs. > Draw tmodified award.
Sd/-
JUDGE we -Ksi/- . | '