Karnataka High Court
The Divisional Manager vs Shri. Ajjappa on 3 January, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 03RD DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.22773/2009 (WC)
C/W M.F.A. NOS.22774 & 22775 OF 2009 (WC)
M.F.A. NO.22773/2009 (WC):
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO.LTD.,
ENKAY COMPLEX, KESHWAPUR, HUBLI,
NOW REP BY ITS THE REGIONAL MANAGER
SUMANGAL COMPLEX, OPP. CORPORATION
LAMINGTON ROAD HUBLI DIST DHARWAD
...APPELLANT
[BY SHRI K L PATIL, ADVOCATE]
AND:
1. SHRI. AJJAPPA
S/O BASAPPA HUBLI,
R/O IBRAHIMPUR
TQ:SHIGGAVA DIST HAVERI
2. TIPPESWAMY
S/O RAMKRISHNAPPA MIRJAKAR
R/O YALAKKI ONI
TQ & DIST HAVERI
...RESPONDENTS
[BY SHRI V.S.KALASURMATH AND
SHRI M.V. HIREMATH, ADVOCATES FOR R1,
R2 DISPENSED WITH]
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THIS MFA FILED U/S 30(1)(a)OF THE WORKMEN
COMPENSATION ACT,1923 AGAINST THE JUDGMENT AND
ORDER DATED:17/06/2009 PASSED IN WCA/NF-
154/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN'S COMPENSATION,
HAVERI, AWARDING THE COMPENSATION OF
RS.1,89,753/- ALONG WITH INTEREST AT THE RATE OF
12% P.A.FROM THE DATE OF PETITION TILL DEPOSIT.
M.F.A. NO.22774/2009 (WC):
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO.LTD.,
ENKAY COMPLEX, KESHWAPUR, HUBLI,
NOW REP BY ITS THE REGIONAL MANAGER
SUMANGAL COMPLEX, OPP. CORPORATION
LAMINGTON ROAD HUBLI DIST DHARWAD
...APPELLANT
[BY SHRI K L PATIL, ADVOCATE]
AND:
1. SHRI. FAKIRAPPA
S/O BASAVANEPPA TALWAR,
R/O IBRAHIMPUR
TQ:SHIGGAVA DIST HAVERI
2. TIPPESWAMY
S/O RAMKRISHNAPPA MIRJAKAR
R/O YALAKKI ONI
TQ & DIST HAVERI
...RESPONDENTS
[BY SHRI V.S.KALASURMATH AND
SHRI M.V. HIREMATH, ADVOCATES FOR R1,
R2 DISPENSED WITH]
THIS MFA FILED U/S 30(1)(a)OF THE WORKMEN
COMPENSATION ACT,1923 AGAINST THE JUDGMENT AND
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ORDER DATED:17/06/2009 PASSED IN WCA/NF-
155/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN'S COMPENSATION,
HAVERI, AWARDING THE COMPENSATION OF
RS.1,94,070/- ALONG WITH INTEREST AT THE RATE OF
12% P.A.FROM THE DATE OF PETITION TILL DEPOSIT.
M.F.A. NO.22775/2009 (WC):
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO.LTD.,
ENKAY COMPLEX, KESHWAPUR, HUBLI,
NOW REP BY ITS THE REGIONAL MANAGER
SUMANGAL COMPLEX, OPP. CORPORATION
LAMINGTON ROAD HUBLI DIST DHARWAD
...APPELLANT
[BY SHRI K L PATIL, ADVOCATE]
AND:
1. SHRI. HAJRESAB
S/O HASSANSAB,
R/O IBRAHIMPUR
TQ:SHIGGAVA DIST HAVERI
2. TIPPESWAMY
S/O RAMKRISHNAPPA MIRJAKAR
R/O YALAKKI ONI
TQ & DIST HAVERI
...RESPONDENTS
[BY SHRI V.S.KALASURMATH AND
SHRI M.V. HIREMATH, ADVOCATES FOR R1,
R2 DISPENSED WITH]
THIS MFA FILED U/S 30(1)(a)OF THE WORKMEN
COMPENSATION ACT,1923 AGAINST THE JUDGMENT AND
ORDER DATED:17/06/2009 PASSED IN WCA/NF-
156/2008 ON THE FILE OF THE LABOUR OFFICER AND
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COMMISSIONER FOR WORKMEN'S COMPENSATION,
HAVERI, AWARDING THE COMPENSATION OF
RS.1,47,402/- ALONG WITH INTEREST AT THE RATE OF
12% P.A.FROM THE DATE OF PETITION TILL DEPOSIT.
THESE MISCELLANEOUS FIRST APPEALS
COMING ON FOR ADMISSION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING: -
JUDGMENT
These appeals are by the insurer questioning the correctness and legality of the order and award passed by the Labour Officer and Commissioner for Workmen's Compensation, Haveri, in W.C. Nos.154, 155 and 156 of 2008 dated 17.06.2009, whereunder, claim petitions have been allowed in part and compensation has been awarded.
2. Heard. Though the matter is listed for admission, by consent of learned Advocates appearing for the parties, they are taken up for final disposal.
3. Learned counsel appearing for the appellant - Insurance Company has also made available the exhibits and deposition of the parties tendered before the Commissioner for Workmen's Compensation. It is the :5: contention of Shri Bethurmath appearing on behalf of Shri K.L.Patil for appellant that order and awards in question passed by the Tribunal are erroneous on the ground that disability as assessed by the Doctor has been marginally reduced by the Commissioner and it has been held to be the same as whole body disability and also to be the proportionate loss of earning capacity of claimants and this finding of the Commissioner is erroneous and liable to be set aside. He also submits that Doctor who was examined on behalf of claimants is not the Doctor who treated the petitioners and as such, his evidence cannot be accepted. In view of these facts, he contends that substantial questions of law formulated in the appeal memorandum would arise for being formulated and adjudicated.
4. Per contra, Shri Kalasurmath, learned counsel appearing on behalf of claimants would contend that compensation awarded by the Tribunal is just and proper and does not call for interference.
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5. Having heard the learned Advocates appearing for the parties and on perusal of evidence tendered by the Doctor who has issued disability certificates, I am of the considered view that following substantial questions of law would arise for my consideration.
"1. Whether the Commissioner was justified in assessing the compensation payable to the claimants by taking into consideration the percentage of disability assessed by the Doctor to be the total disablement and same is proportionate to their loss of earning capacity?
2. Whether Commissioner for Workmen's Compensation was justified in awarding interest payable after one month from the date of award and, if not, from what period interest becomes payable?"
6. In order to answer the above formulated substantial question of law, it would be necessary to extract the relevant provision of the Workmen's Compensation Act, 1923, namely Section 4 which reads as under: -
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4. Amount of Compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: -
(a) xxxxx
(b) xxxxx Explanation I. - xxx Explanation II.- Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only;
(c) Where permanent partial disablement result from the injury
(i) xxx
(ii) in the case of an injury 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 caused (as assessed by the qualified medical practitioner) permanently caused by the injury;
xxxxx :8:
7. Claimants filed claim petitions before the Workmen's Compensation Commissioner seeking compensation under the W.C. Act on account of injuries sustained and consequential disabilities suffered by them in a road traffic accident that occurred on 19.08.2008 which was said to be in the course of employment and arising out of the employment, namely while travelling in the lorry bearing No.KA-27/A-4959 as 'hamals', after loading rice bags at Narayanapura for being unloaded at Hulgur Society and during transit, the accident in question is said to have occurred. On account of said accident, claimants are said to have been treated with first aid at Shiggaon Government Hospital and later on shifted to Chidanand Nursing Home at Haveri and were treated as inpatient at the said hospital. To establish the accident, injuries sustained, consequential disabilities suffered by them and nature of treatment obtained, claimants not only produced the wound certificates, disability certificates, but also examined the Doctor who treated them and issued the said certificates as P.W.2 :9: namely Dr.G.Shivappa, the Orthopedic Surgeon of Chidanand Nursing Home. As per the wound certificates of the respective claimants which came to be marked as Exs.P-5, Ex.P-8 and Ex.P-11, they have suffered following injuries.
Re: Ajjappa:-
i) Tenderness in the right shoulder
ii) Tenderness in the right knee
iii) Tenderness in the left leg Re: Pakkiresh/Fakirappa:-
i) Tenderness in the right forehead region
ii) Tenderness in the right knee region
iii) Tenderness in the right knee region
iv) Tenderness in the left elbow region Re: Hazre Sab:-
i) A lacerated wound of 2 cm X 2 cm at
left forehead region
ii) Tenderness in the lower back region
iii) Tenderness in the right thigh region
8. The Doctor who has examined all the three claimants both clinically and radiologically has opined that the claimants 1 to 3 have permanent physical : 10 : disability of about 55 to 60%, 60 to 65% and 45 to 50% respectively. What was required to be considered by the Commissioner while awarding compensation under the Workmen's Compensation Act was proportionate loss of earning capacity on account of the injuries sustained and disability suffered on account of such injuries. In other words, claimants had to establish that on account of the injuries sustained by them and consequential disabilities suffered their earning capacity to the said extent of total permanent disability has also got reduced. It is this clinching evidence which would form the basis or foundation for assessing the compensation under Workmen's Compensation Act. This fact is not at all noticed by the Commissioner for Workmen's Compensation while awarding compensation under the awards in question which are perused by this Court.
Even the Doctor who was examined on behalf of the claimants does not state as to what is the loss of earning capacity of the claimants on account of the injuries sustained by them or in other words he has not : 11 : stated to what extent the injuries sustained has caused proportionate loss of earning capacity and in the awards in question neither the Doctor who has been examined on behalf of claimants has stated as to what is the proportionate loss of earning capacity of the claimants with reference to the total permanent disablement or as to what extent the earning capacity of the injured persons have got reduced on account of such disability suffered by them nor the Commissioner has assessed the said loss of earning capacity of claimants on this basis.
9. At this juncture, it would be appropriate to extract the cross examination in chief of the Doctor in WC(NF)154/08 in M.F.A. No.22773/2009, whereunder, it is stated by the Doctor as follows: -
"Considering the history, clinical and radiological examination, I am of the opinion that, the patient is having total permanent physical disability is about 55% to 60%".: 12 :
10. This evidence does not indicate as to what is the proportionate loss of earning capacity which was required to be assessed by the said Doctor, as contemplated under Section 4(1)(c)(ii) of Workmen's Compensation Act. The Commissioner for Workmen's Compensation having scrutinized the evidence of the said Doctor, jumps to a conclusion that said disability cannot be accepted and proceeds to assess disability of each claimant at 45%, 48% and 40% i.e., 1st respondent in each appeal herein respectively. As to the basis on which this percentage of disability is assessed by the Commissioner, neither there is discussion nor there is any basis for the same. In fact the Insurance Company did not tender any contra evidence to discredit the testimony of the Doctor who was examined on behalf of claimants. It requires to be noticed that said Doctor has been cross-examined in extenso by the learned Advocate appearing for the Insurance Company. He admits in his cross-examination dated 01.06.2009 that he has not assessed the disability as per guidelines : 13 : issued in ALIMNCO book. He also admits that disability assessed by him relates to the particular limb. He further admits that disability as assessed by him, if considered for the whole body, it would get reduced. But denies the suggestion that it would get reduced to an extent of 50% as suggested.
11. It is not in dispute that from the evidence of the doctor, it can be seen that what has been assessed by the doctor relates to particular limb disability and, as such, the whole body disability necessarily has to be 1/3rd of it as also the proportionate loss of earning capacity. In that view of the matter, I am of the considered view that percentage of disability as assessed by the doctor has to be taken into consideration as particular limb disability and the whole body disability is to be assessed at 1/3rd of it which would also be proportionate to the loss of earning capacity and same is tabulated in the following column: : 14 :
Sl. Percentage of disability as
1/3rd of it
No. assessed by the doctor
1 55% 18.33%
2 60-65% 20%
3 45% 15%
Thus, by taking into consideration, the percentage of disability to be the proportionate loss of earning capacity, the compensation that is payable to each of the claimants is recomputed herein below: Re. MFA No.22773/2009
The income of the claimant is taken at Rs.3,240/-
per month as assessed by the Commissioner and considering the age of the claimant as 25 years as reflected in the wound certificate, the disability and loss of earning capacity is taken at 18.33% and the relevant factor as contemplated under Workmen's Compensation Act is adopted and compensation is determined as under: -
60% of Rs.3,240/- = Rs.1,944/- x 18.33% = 356 x 216.91 = Rs.77,290/-.: 15 :
Re. MFA No.22774/2009
The income of the claimant is taken at Rs.3,240/- as assessed by the Commissioner and considering the age of the claimant as 30 years as reflected in the wound certificate-Ex.P.8, the disability and loss of earning capacity is taken at 20% and the relevant factor as contemplated under the Workmen's Compensation Act is adopted and compensation is determined as under:
60% of Rs.3,240/- = Rs.1,944/- x 20% = 388 x 207.98 = Rs.80,862/-.Re. MFA No.22775/2009
The income of the claimant is taken at Rs.3,240/-
as assessed by the Commissioner and considering the age of the claimant as 38 years as reflected in the wound certificate-Ex.P.8, the disability and loss of earning capacity is taken at 15% and the relevant factor as contemplated under the Workmen's Compensation Act is adopted and compensation is determined as under:: 16 :
60% of Rs.3,240/- = Rs.1,944/- x 15% = 291.60 x 189.56 = Rs.55,275/-.
Thus, excess compensation awarded by the Commissioner to the claimants/petitioners to an extent of Rs.1,12,463/-, Rs.1,13,208/- and Rs.92,127/- is reduced.
In view of the discussion made herein above, point No.1 is partly answered in favour of the appellant- insurance company and against 1st respondent- claimant.
Re. Point No.2 It is seen from the award that interest that has been awarded is payable 30 days after the date of the order and same is contrary to the judgment of the Apex Court in the case of Oriental Insurance Company Limited Vs. Siby George & Others reported in 2012 ACJ 2126. Hence, point No.2 is to be answered in favour of the claimants and against the appellants. For reasons aforesaid following order:
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ORDER
(i) Appeals are allowed in part.
(ii) The order and awards passed by the
Commissioner for Workmen's
Compensation, Haveri, in WCA/NF
Nos.154, 155 and 156 of 2008 dated
17.06.2009 are hereby modified and it is ordered that each of the claimants would be entitled to a compensation of Rs.77,290, Rs.80,862/- and Rs.55,275/- only as discussed herein above which is in substitution to the compensation awarded by the Commissioner for Workmen's Compensation.
(iii) Claimants would be entitled to interest at the rate of 12% per annum after 30 days from date of accident till date of payment or deposit whichever is earlier.
Registry is directed to refund the excess amount after calculating interest payable and transmit the amounts payable to the claimant with interest to the jurisdictional Commissioner for Workmen's : 18 : Compensation for being disbursed in accordance with this order.
In view of the appeals having been disposed of Misc. Civil No.106084/2009 in MFA No.22773/2009 and Misc. Civil No.106092.2009 in MFA No.22775/2009 do not survive for consideration and they stand rejected.
SD/-
JUDGE Rsh/Kms