Karnataka High Court
Sri. Ramesh V vs Sri.N.T.Rahamathulla Khan on 27 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.No.4853/2018 (WC)
BETWEEN:
SRI. RAMESH V
S/O VENKATACHALAPPA
AGED ABOUT 35 YEARS
R/A NO.91/A, II CROSS
RAJESHWARI NAGAR
LAGGERE
BENGALURU-58
... APPELLANT
(BY SRI SHRIPAD V.SHASTRI, ADVOCATE)
AND:
1. SRI.N.T.RAHAMATHULLA KHAN
ASSOCIATES, NO.13/11
P.M.K.ROAD
SHANKARAPURAM
BENGALURU-04
(RC OWNER OF BUS BEARING
REG NO.KA-01-AA-4533)
2. THE MANAGER
BHARATHI AXA GENERAL INSURANCE CO. LTD.,
SY NO.28, FERNS ICON
IST FLOOR, DODDANEKKUNDI
BENGALURU-37
(I.P NO.FCV/11870063/41/01/003954
VALID FROM 06.01.2015 TO 05.01.2016)
2
... RESPONDENTS
(BY SRI B.PRADEEP, ADV. FOR R2;
V/O DTD.03.08.2022 NOTICE TO R1
IS DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 30(I) OF WC
ACT AGAINST THE JUDGMENT AND AWARD DT.19.12.2017
PASSED ON ECA NO.17/2016 ON THE FILE OF THE COURT OF
SMALL CAUSES & 35TH ACMM & EMPLOYEES COMPENSATION
COMMISSIONER, X ADDITIONAL JUDGE, BENGALURU
(SCCH-16), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant under Section 30(I) of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'WC Act' for short), challenging the judgment and award passed in ECA No.17/2016 dated 19/12/2017 by the Court of Small Causes and XXXV ACMM and Employees Compensation Commissioner, Bengaluru seeking enhancement of the compensation.
2. The undisputed facts are that the claimant during the course of employment as he was working as 3 driver of the bus bearing No.KA-01-AA-4533 met with an accident on 28.09.2015 at about 6.30 p.m. at the place of Vijayanagar as his bus was hit by the lorry bearing No.KA-02-AB-4866 (offending vehicle).
3. Due to the accident, the claimant had suffered amputation of four toes of left leg except big toe and also sustained fracture to the both bones of left leg. It is stated that the fractures were malunited and he was shortened of left leg by 3 cms.
4. The Commissioner for workmen's compensation had considered 28% of permanent physical disability and considering the notional income at Rs.8,000/- p.m., applying relevant factor and calculated 60% of the monthly income and accordingly, granted a compensation of Rs.2,78,000/- including medical expenses of Rs.3,998/-.
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5. Heard the learned counsel for the appellant and learned counsel for respondent No.2. Perused the records.
6. It is the submission of the learned counsel for the claimant that the percentage of the permanent physical disability held at 28% is lesser side since the claimant was a driver of the bus by Profession. Now, he cannot drive the bus and besides he is walking with the help of stretcher. Therefore, he lost his job. Hence, functional disability can be applied still more. Hence, prays for enhancement of compensation.
7. On the other hand, learned counsel for the Insurance Company justified the percentage held by the Tribunal and awarding compensation.
8. In the present case, the Doctor is examined as PW.3. It is the evidence of the Doctor that the claimant had suffered permanent physical disability to the whole body at 28%. It is undisputed fact that the 5 claimant had suffered fracture of four toes of the left leg except the big toe and due to fracture to the tibia of left leg, left leg was shortened by 3 cms. Even though schedule-I of the EC Act regarding nature of injury and percentage of loss of earning capacity is a guideline value but the Court has always discretion to determine the loss of percentage of earning capacity considering the nature of injuries, disability sustained and avocation of the injured. In the present case, not only the four toes of left leg amputation but also due to the fracture of tibia bones of left leg, the left leg was shortened by 3 cms. The claimant is not able to walk independently. The claimant had lost his job as driver. Therefore, under these circumstances, the functional disability suffered by the claimant is to be taken at practical value and the Court deems fit if it may be taken as 40% as functional disability, that would be correct. Doctor always can say only present physical disability. The functional disability is to be assessed by the Court by considering all other 6 factors such as nature of injuries and the profession/avocation/job. Therefore, it is just and proper to hold 40% functional disability. The liability of the Insurance Company is not disputed.
9. The other factors and observations made by the Tribunal is correct. Therefore, the loss of earning capacity is re-assessed to Rs.3,91,392/- (Rs.8000x 60%=Rs.4800x40%=Rs.1920x203.85). Accordingly, a sum of Rs.3,91,392/- is awarded under the head loss of income due to permanent physical disability.
10. The other compensation awarded under the head medical expenses is kept in tact.
11. The Commissioner for Workmen's Compensation has awarded the compensation of Rs.2,78,000/-, but the appellant/claimant is entitled to total compensation of Rs.3,91,392/-. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.1,13,392/- (Rs.3,91,392 - Rs.2,78,000). 7
12. Hence, I proceed to pass the following:
ORDER i. The appeal is allowed-in-part.
ii. The judgment and award passed by the Court of Small Causes and XXXV ACMM and Employees Compensation Commissioner in ECA No.17/2016 is hereby modified that the claimant is entitled for enhanced compensation of Rs.1,13,392/- with interest @ 12% p.a., from the date of accident till its realization.
iii. The claimant is not entitled for interest for the delayed period of 100 days in filing the appeal.
iv. Costs made easy. v. Ordered accordingly. vi. The amount in deposit is ordered to be transmitted
to the Commissioner for Workmen's Compensation, forthwith.
Sd/-
JUDGE KA