Bangalore District Court
And His Sisters Did Not Choose To Take Any ... vs In Doing So As Above. Hence on 19 January, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 19th day of January, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com., LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore
E.C.A.No.13/2014
Sri. P.Raju @ Raja, ..... PETITIONER
S/o Late Pillappa,
Aged about 25 years,
Residing at No.133,
C/o Nagarajappa,
Ananthapura,
Singanayakanahalli Post,
Yelahanka Hobli,
Bangalore North Taluk,
Bangalore-560 064.
(By Sri. K.Murthy, Adv.,)
V/s
Sri.N.Krishnappa, .....RESPONDENTS
S/o Narayanappa,
Akkayamma Building,
Hindu,
Aged about 36 years,
Builders,
Nagondahalli Colony,
White Field Post,
Krishnarajapura Hobli,
Bangalore East,
Bangalore.
2 ECA.NO.13/2014
(SCCH-7)
Also at:
Immadihalli Post,
2nd Cross,
Behind Anjaneya Temple,
White Field Road,
Krishnarajapura Hobli,
Bangalore East,
Bangalore.
(By Sri. M. P. Basavaraju, Adv.,)
JUDGMENT
The Petitioner has filed the present petition as against the Respondent under Section 22 of the Employee's Compensation Act, 1923, praying to grant compensation of Rupees 50,00,000/- with interest at the rate of 12% per annum.
2. The brief averments of the Petitioner's case are as follows;
a) He was a workman employed by the Respondent as a Carpenter with the Respondent past from 10 years. The Respondent used to construct residential and commercial buildings in and around Bangalore City, under whom, he was working as a Carpenter under the respondent, wherever the Respondent undertakes construction works. He used to work along with the co-workers of the Respondent.
3 ECA.NO.13/2014(SCCH-7)
b) On 15.11.2013 at about 12.45 p.m., he was doing frame work to the windows in 5th floor outside of the said building at Immadihalli, Bangalore, which is being newly constricting. He was doing the said work by tying rope at the outside of the said building, while working along with other workers, at the time, the said rope tarred and he fallen down from 5th floor of the said building, which belongs to the Respondent. Due to which, he sustained grievous injuries to his both legs, i.e., ankle portions and also backbone and he also sustained other injuries to his body, thereby, sustaining grievous injuries as mentioned in the Wound Certificate.
c) Immediately after the incident, he was shifted to Vydehi Hospital, White Field Road, Bangalore, with the assistance of his co-workers, namely, Suresh and Munikrishna in a Tempo for treatment, wherein, he was treated as an inpatient from 15.11.2013 to 06.12.2013. The duty Doctors took X-rays and examined him clinically and radiologically and revealed fracture of both bones at ankles for his two legs and fracture of lower edge of the back bone. Further found that, right Tibia Pelon's and Right comminuted calcaneal, etc., He underwent operation with internal fixation and got discharged from the Hospital on 06.12.2013 with an advise to take bed rest, continue medicines and to take follow-up treatment as an outpatient. During the course of investigation, the following injuries are found in his body;
4 ECA.NO.13/2014(SCCH-7)
i) Pain and swelling back and left ankle, lower back ache redistricted of movements back and left ankle. Developed swelling and lower back pain Acute, slender and progressed in severity and redness with swelling acute.
ii) Lacerated 8 X 3 on right foot, swelling back and left ankle, tenderness back and left ankle, abhorred mobility back and left ankle. Crepinis left and right, ROM restricted- redistricted ankle joint movements B/L. W/U right tibia philon's with compound comminuted calcaneal with left calcaneal, with left compression with.
d) After treatment, he got discharged on 06.12.2013 and again due to heavy pain in his back bone and also for removal of rod, he admitted to the very same Hospital on 16.05.2014 and was treated him as inpatient from 16.05.2014 to 26.05.2014 as inpatient. At that time, rod was removed. Further, due to heavy pain in his back bone and also for formation of pus in his portion, the Doctor advised/suggested to Petitioner to undergo major operation for the same. But, he and his sisters did not have money and hence, approached the Respondent to help for treatment. But, he refused and warned not come and again with the same demand and threatened.
5 ECA.NO.13/2014(SCCH-7)
e) When he was under treatment in the Hospital as an patient, the Respondent assured and promised to bear all medical, Hospital and other expenses for his treatment by telling that, he fallen down from his working place. Based on the assurances and promises given by the Respondent, the Petitioner and his sisters did not choose to take any legal action against the Respondent and he was under the impression that the Respondent would look after the Petitioner in all respect and would meet the medical and Hospital expenses etc., Due to the injuries sustained in the said incident/accident, he throughout under treatment both in the Hospital and in the house even to this day.
f) He has spent Rupees 2,00,000/-, when he was in Hospital from 15.11.2013 to 06.12.2013. Since his two sisters, namely, Lakshmi and Anju were/are looking after the day to day affairs of him by spending all medical, Hospital, medicine and daily dressing, conveyance expenses. Therefore, he was unable to bear the expenses. Hence, he got discharged from the Hospital, even though he required undergoing further treatment and major surgery in the Hospital as an inpatient.
g) While under treatment and after discharge from the Hospital, he had lodged the Police complaint before the White Field Police Station on 24.12.2013 and based on the same, the said Police registered a case punishable under 6 ECA.NO.13/2014 (SCCH-7) Section 337 and 338 of IPC as against the Respondent under Crime No.0364/2013. After enquiry, the White Filed Police have filed a charge sheet as against the Respondent punishable under Section 337 and 338 of IPC and the case is also registered in C.C.No.1302/2014 before the Hon'ble ACJM Court, Bangalore and it is pending.
h) He again admitted to the same Hospital for 2nd time on 16.05.2014 to 26.05.2014 due to infection in the injuries part of his body, i.e., right leg ankle and he underwent corrective surgery and after necessary treatment, he was discharged on 26.05.2014. Further, due to infection and severe pain in the back bone, he required to undergo urgent operation, for which, he has to spend Rupees 2,00,000/- and after necessary treatment, he was discharged as above with an advise to take completed bed rest for 2 years and continue medicines and to take following treatment. Accordingly, till today, he is under continuous follow-up treatment as an outpatient.
i) He is suffering from permanent disability due to the fracture of both ankles and lower side back bone. The fracture of legs and back bones, he is not able to walk or stand and sit without support, cannot climb stairs, cannot use Indian type of toilet, cannot squat and cannot sit with cross legged, cannot bear minimum weight on his legs. In toto, he has lost his normal life and his disability is coming in 7 ECA.NO.13/2014 (SCCH-7) the way of his day to day activities and avocation and consequently, he is undergoing great pecuniary loss.
j) At the time of accident, he was 24 years old, hale and healthy and he was working under Respondent deputed to the works of Respondent units and getting the salary of Rupees 15,000/- per month plus other perks including O.T.
k) Due to injuries and permanent disability, he is not able to do any manual work in future and lost his earnings permanently for the rest of his life, thereby, he and his family members are undergoing great mental shock, agony and financial hardship as he is the only earning member of the family.
l) Always he will be sleeping on a bed and in the same place and all his day to day activities, like, bath, eating, drinking, sleeping and medicine, etc., are to be done in one place. He cannot move even single step from one place to another place. He has to take bed rest for 2 years as per the Doctor's advise.
m) He has spent more than Rupees 4,00,000/- so far towards medicines, treatment, conveyances and other incidental charges. He is still under treatment and the expenses towards treatment and other incidental expenses yet to ascertain.
8 ECA.NO.13/2014(SCCH-7)
n) The Respondent is fully aware of the accident and also the facts that, he has suffered grievous injuries resulted in disablement. If the Respondent would have taken precautionary measures to his employees, while doing building works at his working place by putting net, wearing helmet and tying belt and using proper and quality rope, etc., such incident could not have been occurred if any such precautionary measures was taken at that time. Hence, the said incident occurred due to sole negligent attitude of the Respondent in doing so as above. Hence, he is responsible for the said incident. The said accident is well within the knowledge of the Respondent. Hence, no notice is issued to the Respondent. However a criminal case is also registered. Further, negotiations also did not yield any fruits except by paying Rupees 30,000/- towards medicine expenses.
o) He along with his sisters have approached the Respondent on several occasions and requested to pay compensation and settle the issue by paying compensation. But, the Respondent failed to settle the dispute and not paid any compensation to him. He has lost his bright future in all respect including his marital and enjoyable life. Hence, he is entitled for compensation of Rupees 50,00,000/- with interest at 12% per annum from the Respondent.
p) He has not filed any application or petition before any other Forum or Court claiming compensation as against 9 ECA.NO.13/2014 (SCCH-7) the Respondent in respect of the accident. Hence, this petition.
3. In response to the notice, the Respondent has appeared before this Tribunal through his Learned Counsel. But, initially, inspite of giving sufficient opportunities, the Respondent had not filed the written statement. Later, as per the Order dated 04.12.2014 passed on I.A.No.I, the written statement filed by the Respondent is taken on file.
4. The Respondent inter-alia denying the entire case of the Petitioner, has further contended as follows;
a) The Petition filed by the Petitioner is false, vexatious and frivolous, so also, it is contrary to law and facts of the case.
b) The Petitioner has come out with the present petition with an ill-intention of making un lawful gain.
c) He got constructed residential building at Immadihalli. The entire construction work was entrusted under contract to different contractors. The complete Carpenter work was entrusted to one Mr.Narendra under contract. He does not know the Petitioner and hence, he does not admit and denies the entire allegation made in the petition and the Petitioner is put to strict proof of all the allegations.
10 ECA.NO.13/2014(SCCH-7)
d) The Petitioner has filed a false criminal case as stated the petition as against him with an intention to make unlawful gain.
ii) He is not aware of the averments stated the petition and the same are made to make unlawful gain.
iii) Without prejudice to the above contentions, the amount of compensation claimed is highly excessive, exaggerated, arbitrary and speculative. Hence, prayed to dismiss the petition with costs.
5. Based on the above said pleadings, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that, during the course of employment under the Respondent, i.e., when he was doing frame work by tying rope at the outside the building while working along with other workers, at that time, the said rope tarred and he fallen down from 5th floor of the said building, which belongs to Respondent and due to which, he sustained grievous injuries?
2. Whether the Petitioner is entitled for compensation? If so, how much and from whom?
11 ECA.NO.13/2014(SCCH-7)
3. What Order?
6. In order to prove his case, the Petitioner himself has been examined as P.W.1 through Court Commissioner and has also examined one witness as P.W.2 by filing the affidavits as their examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.56. On the other hand, the Respondent himself has been examined as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1 and Ex.R.2. Ex.R.1 is marked through P.W.1 during the course of cross-examination, by confrontation.
7. Heard the arguments.
8. In support of the submission, the Learned Counsel appearing for the Petitioner Sri.K.Murthy has placed reliance upon the decision reported in, 2014(1) T.A.C. 369 (S.C.) (Syed Sadiq, etc., V/s Divisional Manager, United India Insurance Co.), wherein, it is observed that,
(i) Motor Vehicles Act, 1988, Sections 168 and 173 - Quantum of Compensation - Appeal for enhancement
- injured a vegetable vendor aged 24 years - sustained injuries to lower end of right femur - Right leg amputated - Also sustained injuries over his left upper arm
- Doctor stated disability of 24% to upper 12 ECA.NO.13/2014 (SCCH-7) limb and 85% to lower limb - Tribunal assessed disability at 30% of whole body
- High Court determined disability at 65% without assigning proper reason -
Error committed by High Court -
Occupation of vegetable vending often involves selling vegetables in cart which requires 100% mobility - Disability determined at 85% to determine loss of income - Considering present state of economy and rising prices reasonable income fixed at Rupees 6,500/- p.m., claimant was self - employed and was aged 24 years, 50% increase allowed towards future prospects of income -
Multiplier of 18 applied - Compensation towards loss of future income awarded at Rupees 17,90,100/- plus Rupees 50,000/- towards loss of marriage prospects, Rupees 75,000/- towards loss of amenities, Rupees 1,00,000/- towards medical and incidental cost and Rupees 25,000/- towards cost of litigation -
Claimant held entitled to Rupees 21,65,100/- with interest at 9% p.a.
(ii) Motor Vehicles Act, 1988, Sections 168 and 173 - Quantum of compensation - Appeal for enhancement
- Claimant vegetable vendor - Sustained type 3 compound fracture of right femur, fractures of tibia, middle shaft tibia and fibula - Disability certificate showing permanent disability of 69% to lower limb
- High Court took functional disability at 25% - Error committed by High Court -
Functional disability taken at 35% -
Income of claimant taken at Rupees 6,500/- p.m., - 50% increase added towards future income - Multiplier of 18 13 ECA.NO.13/2014 (SCCH-7) applied - Loss of future income allowed at Rupees 7,37,100/- plus Rupees 60,000/- towards pain and suffering, Rupees 1,00,000/- towards medical and incidental charges, Rupees 40,000/-
towards loss of amenities, Rupees 15,000/- towards future medical expenses and Rupees 25,000/- towards cost of litigation added - Claimant held entitled to Rupees 9,77,100/- with interest at 9% p.a.
(iii) Motor Vehicles Act, 1988, Sections 168 and 173 - Quantum of compensation - Appeal for enhancement
- Claimant aged 22 years - Cleaner of lorries - Sustained fracture on middle 1/3rd of right humerous and comminuted fracture at junction of upper 1/3rd and middle 1/3rd of right tibia - medical certificate showing permanent disability at 22% to upper limb and 29% to lower limb - High Court took functional disability to 13% - Error committed by High Court - Functional disability taken to extent of 85% - Tribunal assessed monthly income at Rupees 3,000/- and High Court assessed it as Rupees 3,500/- - In view of Karnataka State Minimum wages Rules, 2012-2013, monthly income taken as Rupees 5,000/-
- 50% of increase allowed - compensation towards future loss of income worked out at Rupees 13,77,000/- plus Rupees 60,000/- towards pain and suffering, Rupees 50,000/- towards medical and incidental expenses, Rupees 50,000/-
towards loss of amenities, Rupees 5,000/- towards future expenses and Rupees 25,000/- towards cost of 14 ECA.NO.13/2014 (SCCH-7) litigation added - claimant held entitled to Rupees 15,67,000/- with interest at 9% p.a.
iv) Motor Vehicles Act, 1988, Section 168-Negligence-Contributory negligence-Contribution of claimants in accident not proved by Respondents by producing evidence-Findings of Tribunal regarding contributory negligence and upheld by High Court set aside.
9. In support of the submission, the Learned Counsel appearing for the Respondent Sri.M.P.Basavaraju has placed reliance upon the decision reported in, ILR 2011 KAR 3214 (United India Insurance Company Ltd., V/s Palanna and Another), wherein, it is observed that, WORKMAN COMPENSATION ACT, 1923 - Employment injury- claim petition
- Award - Liability fastened on the owner and the insurer jointly and severally -
Appeal by the Insurance Company -
Challenge to the findings regarding relationship of employer and employee - Proof of disability certificate - Re -
appreciation of evidence on record.
Collusive attempt made by the Doctor and the Claimant to create false and frivolous claims alleging accident -
HELD, from the records, it is clear that, it is a set pattern or method innovated and adopted by Doctor to create documents for the sake of creating false and frivolous claim alleging accident, which has 15 ECA.NO.13/2014 (SCCH-7) neither taken place nor resulted in injuries to claimant. The present claim petition is yet another attempt on the part of said Doctor in connivance with claimant and commissioner for Workmen compensation. On going through the documentary evidence on record, it is clearly seen that, entire exercise is a futile and pathetic exercise on the part of claimant with the support of P.W.2 Dr. Ganathe Madhukar - ON FACTS, HELD, though the documents clearly disclose that, entire claim appears to be fraudulent, commissioner for Workmen's Compensation has conveniently ignored the same. He is not even bothered to ascertain what has happened to X-ray referred to in Ex.P.6, which has come into existence on 05.11.2004. He does not bother to enquire about radiologist's report for X-ray at Ex.P.8. Though the disability certificate does not appear to be a acceptable evidence in support of the alleged injury suffered by claimant, the Commissioner has conveniently accepted the same ignoring all the short comings in the said document and has allowed the claim petition which cannot be sustained in the eye of law. - In view of the accident not being proved, relationship between claimant and Respondent No.1 not being proved, the impugned award fastening liability on the Insurance Company is liable to be set aside - WORKMEN 'S COMPENSATION ACT, 1923 - SECTION 30(1) -
DISMISSED.
16 ECA.NO.13/2014(SCCH-7)
10. My answers to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : Partly in the Affirmative,
The Petitioner is
entitled for
compensation of Rupees
3,30,243/- with interest
at the rate of 12% p.a.
from 15.12.2013 till the
date of payment, from
the Respondent.
Issue No.3 : As per the final Order,
for the following;
REASONS
11. ISSUE NO.1 :- The P.W.1, who the Petitioner has stated in his examination-in-chief that, he was a workman employed by the Respondent as Carpenter with him past from 10 years and the Respondent being used to construct residential and commercial buildings in and around Bangalore City, under whom, he was working as a carpenter. He has further stated that, on 15.11.2013 at about 12.45 p.m., he was doing frame work to the windows in 5th floor outside of the said building at Immadihalli, Bangalore, which is being newly constricting by the Respondent and he was doing the said work by tying rope at the outside of the said building and while working along with other workers, at that 17 ECA.NO.13/2014 (SCCH-7) time, the said rope tarred and he fallen down from 5th floor of the said building, which belongs to the Respondent. He has further stated that, due to which, he sustained grievous injuries to his both legs, i.e., ankle portions and also backbone, further he also sustained other injuries to his body, thereby, sustaining grievous injuries. He has further stated that, after the accident, immediately, he was shifted to Vydehi Hospital, White Field Road, Bangalore, with the assistance of his co-workers, namely, Suresh and Munikrishna, in a Tempo for treatment, wherein, he was treated as an inpatient from 15.11.2013 to 06.12.2013. He has further stated that, the duty Doctors took X-rays and examined him clinically and radiologically and revealed fracture of both bones at ankles for his two legs and fracture of lower edge of the back bone and right Tibia Pelon's and Right comminuted calcaneal, etc., He has further stated that, while under treatment and after discharge from the Hospital, he had lodged a Police complaint before the White Field Police Station on 24.12.2013 and based on the same, the said Police have registered a case punishable under Section 337 and 338 of IPC as against the Respondent under Crime No.364/2013 and after enquiry, the Whitefield Police have filed a Charge Sheet as against the Respondent punishable under Sections 337 and 338 of IPC and the case is also registered in C.C.No.1302/2014 before the Hon'ble A.C.J.M. Court, Bangalore and it is pending. He has further stated that, at the time of incident, he was working under the Respondent 18 ECA.NO.13/2014 (SCCH-7) deputed to the works of his units and getting the salary of Rupees 15,000/- p.m., plus other perks including O.T. tune of Rupees 10,000/- in addition to salary.
12. No doubt, the Petitioner has not produced any authenticated documents to show that, at the time of incident, he was working as a Carpenter under the Respondent deputed to the works of his units and getting the salary of Rupees 15,000/- p.m., plus other perks including O.T. tune of Rupees 10,000/- in addition to salary. In this regard, the P.W.1 has clearly stated in his cross-examination that, he is not having any documents to show that, he was receiving salary from Krishnappa, i.e., Respondent. Further, the R.W.1, who is the Respondent has stated in his examination-in-chief that, he got constructed a residential building at Immadihalli and the entire construction work was entrusted under contract to different contractors and the complete carpenter work was entrusted to one Mr. Narendra under contract and he does not know the Petitioner. The Respondent has produced Ex.R.2 Original Account lives containing Page No.1 to 14. It is pertinent note here that, during the course of cross-examination of P.W.1, Ex.R.1, which is a part and parcel of Ex.R.2 is marked only in respect of the 'signature of Narendra'. In respect of the said signature of the said Narendra, which is found on Ex.R.1, the P.W.1 has only identified the name Narendra. Further, in Ex.R.2, the signature of the person are found and in this regard, the 19 ECA.NO.13/2014 (SCCH-7) R.W.1 in his cross-examination has stated that, Narendra, Murthy and other workers have put their signatures on Ex.R.2. He has further stated that, Murthy, Painter Narayanaswamy, Carpenter Narendra, Plumber Raju, Electrician Ravi are put their signatures in Ex.R.2 and the said Plumber Raju is a different person to the present petition and the signature of plumber Raju is found on Page No.3 of Ex.R.2 and the said persons were received payments from him in respect of their respective nature of work. He has further stated that, nobody was fell down in his building, which was constructing at Immadihalli and he does not know that, in respect of the said incident, the criminal case is registered as against him at Whitefield Police Station and they have filed a Charge Sheet as against him.
13. But, based on the said non-production of the material documents by the Petitioner to prove his employment with the Respondent at the time of incident and the evidence of R.W.1 and the contents of Ex.R.1 and Ex.R.2, it cannot be believed and accept the defence taken by the Respondent that, the Respondent though got constructed the residential building at Immadihalli, the entire construction work was entrusted under the contract of different contractors and the complete Carpenter work was entrusted to one Mr. Narendra under contract and the Petitioner is no way related to the Respondent and he was working under the Respondent under the Carpenter while construction of the residential building at 20 ECA.NO.13/2014 (SCCH-7) Immadihalli, as, to consider his specific defence, the Respondent has not examined the said Narendra, to whom entrusted the Carpenter work. Further, from the said evidence of R.W.1, one thing is clear that, at the time of incident, the Respondent got constructed residential building at Immadihalli, wherein, the alleged incident was taken place to the Petitioner. Further, the said Ex.R.1 and Ex.R.2 are not the authenticated documents to consider the specific defence of the Respondent. Further, the R.W.1 in his cross- examination has clearly stated that, the property, wherein, the construction of building was going on is belonging to him. Further, though he has stated that, the construction of building was made by him by contract and the name of the contractor is Murthy, to consider the same, no scrap of paper has been produced by him and even he has not examined the said Murthy. Further, he has clearly stated that, for construction of the building, no agreement came into existence in between him and the said contractor Murthy and he has not made any payment in respect of construction of his building to the said contractor Murthy by way of cash. Even, the Respondent did not care to produce his Bank Statement or any authenticated document to show that, in what mode, he has made payment to the said contractor Murthy in respect of his construction of the building. He has further stated that, since 3 - 4 years, he was doing construction of building and its sale business and except the said profession, he has no other business at all. From the 21 ECA.NO.13/2014 (SCCH-7) said evidence of R.W.1, it is further made crystal clear that, the main business of the Respondent is to construct a building and to sell it. He has further stated that, the building construction was started at Immadihalli in the year 2013 and it was completed in the year 2014. The date of incident is on 15.11.2013. From this, it appears that, at the time of incident, the Respondent was constructing a residential building at Immadihalli, wherein, the incident was taken place to the Petitioner. The R.W.1 has further stated in his cross-examination that, now he cannot say the name of the workers, who have constructed the said building and he has only maintained the paper relating to payment of the amount to the workers for the construction of the said house and he has not maintained any book or register to show that, who were all worked and what nature of work done by them. As this Tribunal has already observed that, the main profession of the Respondent is the construction of building and to sell it. When the nature of profession of the Respondent is to construct a building and to sell it, he had to maintain the books of account or registers relating to the construction work and its workers in respect of the cost of the construction and cost of expenditure for the construction of the building. From this, it is made crystal clear that, only to avoid his liability, which is involved in the present petition, the Respondent has taken such defence, without any basis. Further, the R.W.1 has clearly stated that, Ex.R.1 and Ex.R.2 are prepared and maintained by him itself, which is not in a 22 ECA.NO.13/2014 (SCCH-7) proper and regular manner. Further, the signature of the Respondent is also not found in Ex.R.1 and Ex.R.2. The same has also been clearly admitted by the R.W.1 in his cross- examination. Though he has stated that, the Plumber Raju, whose signature is found in Ex.R.2, who is a different person to the present petition and his signature is found on page No.3 of Ex.R.2 and the said persons were received payment from him in respect of their respective nature of work, to consider the same, the Respondent did not care to examine the said workers namely, Murthy, Painter Narayanaswamy, Carpenter Narendra, Plumber Raju and Electrician Ravi. Even, the Respondent has shown his ignorance about the identification of the Petitioner, who has filed the present petition as against him. Even, he has gone to the extent of saying that, he has not a party to the present proceeding. Further, he has shown his ignorance about the relief claimed by the Petitioner in the present petition as against him. Form this, it appears that, only to avoid his liability, which involved in the present petition, the Respondent has taken such defence without any basis. Even, the Respondent has shown his ignorance in respect of the registration of the criminal case as against him at Whitefield Police Station as well as filing of the Charge Sheet by the said Police as against him in the said criminal case. However, he has further stated that, he has appeared in C.C.No.1302/2014, which is pending before the Hon'ble Additional Chief Metropolitan Magistrate, Bangalore, which is still pending for consideration. If really, 23 ECA.NO.13/2014 (SCCH-7) there are no merits in the case made out by the Petitioner and even a false criminal case is registered as against him by the Petitioner in respect of the alleged incident, the Respondent could have been definitely challenged the very registration of the said criminal case by the said Whitefield Police, before the Hon'ble Appellate Court by preferring an appeal or revision. But, no such attempt has been made by the Respondent. In this regard, the R.W.1 has clearly stated in his cross- examination that, he has not challenged the very registration of the criminal case as against him by the said Police, before the Hon'ble Appellate Court. He has further shown his ignorance that, the said Narendra is also one of the witnesses in the criminal case, even though, he has identified the said Narendra. Further, it is not a defence taken by the Respondent that, the Petitioner had sustained such nature of injuries at different place under different persons, when he was working. In this regard, he has further stated in his cross-examination that, he is not trying to know about the reasons for causing injuries to the Petitioner and in which place and under what circumstances, the Petitioner had sustained such nature of injuries. From the said discussion, it is made crystal clear that, there are no merits in the defence taken by the Respondent in respect of the present petition filed by the Petitioner as against him and whatever the defence taken by the Respondent is false and for way from the truth and also without any basis. On the other hand, the P.W.1 by stating in his cross-examination that, since 2004, he 24 ECA.NO.13/2014 (SCCH-7) has been doing Carpenter work and earlier he was working under deceased Lokesh and Keshav and by receiving wages of Rupees 350/- per day and after their death in 2011, he was working under the Respondent and Siddanna on piece work basis and the Respondent usually pay wages to him on every Saturday. Though it is elicited from the mouth of P.W.1 by the Respondent in his cross-examination that, the Respondent has entrusted the Carpenter work relating to his building work to Narendra, it is not established by the Respondent that, at the time of incident, the Petitioner was working under the said Narendra, under whom he has entrusted the Carpenter work and not under him. Furthermore, to consider his case, the Petitioner has produced Ex.P.1 Statement, Ex.P.2 FIR, Ex.P.3 Charge Sheet, Ex.P.4 Mahazar, Ex.P.5 Wound Certificate, Ex.P.4 Photographs 3 in numbers and Ex.P.7 and Ex.P.8 X-ray Films 2 in numbers, which clearly disclosed that, on 15.11.2013 at 12.45 p.m., when the Petitioner was doing frame work to the window in 5th Floor outside of the building, which was constructed by the Respondent at Immadihalli, Bangalore, i.e., when the Petitioner was doing the Carpenter work by tying rope at the outside of the said building along with other workers, at that time, the said rope tarred and he fell down from 5th Floor of the said building and due to which, he had sustained five grievous injuries, i.e., on his both legs, ankle portion and back bone and by admitting as an inpatient from 15.11.2013 to 06.12.2013, i.e., for 22 days and again 16.05.2014 to 25 ECA.NO.13/2014 (SCCH-7) 26.05.2014, i.e., for 11 days, he took treatment to the said accidental injuries at Vydehi Institute of Medial Science and Research Centre. The contents of the said material documents clearly corroborated with the case made out by the Petitioner as against the Respondent. It is also clear from the contents of Ex.P.3 Charge Sheet that, after thorough investigation, the Investigation Officer has filed a Charge Sheet as against the Respondent under Crime No.364/2013 by alleging that, on 15.11.2013 at 12.45 p.m., when the Petitioner was working as a Carpenter in the new building constructing by the Respondent at Immadihalli Village, the Respondent had not given any safety measures, like rope, safely chain, helmet and net and due to the negligence of the Respondent in not providing the safety measures to the Petitioner while doing a Carpenter work in his building, the Petitioner fell down from 5th Floor, when he was fixing frames to the window due to broken of the rope and due to the said incident, he had sustained grievous injuries on his hip and both legs. As this Tribunal has already observed that, the Respondent has not challenged the very registration of the criminal case by the said Police as against him. The very pendency of the criminal case is clearly admitted by the Respondent in his cross-examination. No question or suggestions put by the Respondent to the P.W.1 in respect of the said material Police and medical documents.
26 ECA.NO.13/2014(SCCH-7)
14. Further, though the incident was taken place on 15.11.2013 at 12.45 p.m., the complaint is lodged in respect of the said alleged incident on 24.12.2013 at 1.30 p.m., which disclosed that, there is 40 days delay in lodging the complaint before the Police in respect of the said incident. But, it no way affects to consider the case of the Petitioner, as, the above said medical documents clearly disclosed that, immediately after the accident, he was admitted in Vydehi Institute of Medical Science and Research Centre by admitting as an inpatient from 15.11.2013 to 06.12.2013, he was regularly taking treatment to the accidental injuries and thereafter also, he has continued follow-up treatment. Therefore, the said delay is no way affects to consider the case of the Petitioner. Furthermore, after thorough investigation, the Police have filed a Charge Sheet as against the Respondent, which has been clearly admitted by the R.W.1, who is the Respondent in his cross-examination.
15. Under the above said facts and circumstances as well as the reasons given, this Tribunal has come to the conclusion that, the Petitioner by producing material evidence, both oral and documentary, has positively established that, during the course of employment under the Respondent, i.e., when he was doing frame work by tying rope at the outside the building while working along with other workers, at that time, the said rope tarred and he fallen down from 5th Floor of the said building, which belongs to the 27 ECA.NO.13/2014 (SCCH-7) Respondent and due to which, he sustained grievous injuries and the relationship in between the Petitioner and the Respondent is that off employee and employer. Accordingly, I answered Issue No.1 in the Affirmative.
16. ISSUE NO.2 :- The P.W.1 has stated that, at the time of accident, he was 24 years old. But, no authenticated document is produced by the Petitioner to show his actual age at the time of accident. However, the above said Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 25 years old. Hence, the age of the Petitioner is considered as 25 years at the time of accident.
17. The P.W.1 has stated that, he was hale and healthy and he was working under Respondent deputed to the works of Respondent units and getting the salary of Rupees 15,000/- per month plus other perks including O.T. tune of Rupees 10,000/- in addition to salary. No doubt, while answering Issue No.1, this Tribunal has already come to the conclusion that, at the time of accident, the Petitioner was a Carpenter under the Respondent and the relationship in between the Petitioner and the Respondent is that off employee and employer. But, to consider his actual income, at the time of accident, the Petitioner has not produced any authenticated documents.
28 ECA.NO.13/2014(SCCH-7)
18. But, based on the same, it cannot be said that, the income of the Petitioner was not earning any income at the time of accident, as, as per the Gazette Notification dated 31.05.2010, the monthly wages of the workers is specified as of Rupees 8,000/- with effect from the date of publication of the said Notification in the Gazette, i.e., on 31.05.2010, which reads thus, "MINISTRY OF LABOUR AND EMPLOYMENT NOTIFICATION New Delhi, the 31st May, 2010 S.O. 1258(E) - In exercise of the powers conferred by sub-section (1B) of Section 4 of the Employee's Compensation Act, 1923 (8 of 1923), the Central Government hereby specifies, for the purposes of Sub-section (1) of the said Section, the following amount as monthly wages, with effect from the date of publication of this Notification in the Official Gazette, namely :-
"Eight thousand rupees"
19. The date of accident is on 15.11.2013. Therefore, the amount of Rupees 8000/- as monthly wages as per the said Gazette Notification is aptly applicable to the present case. Hence, without much discussion, the monthly earnings of the Petitioner is considered as Rupees 8,000/- p.m. at the time of incident.
29 ECA.NO.13/2014(SCCH-7)
20. The P.W.1 has stated that, he was treated as an inpatient from 15.11.2013 to 06.12.2013 and the duty Doctors took X-rays and examined him clinically and radiologically and revealed fracture of both bones at ankles for his two legs and fracture of lower edge of the back bone and further found that, right Tibia Pelon's and Right comminuted calcaneal, etc., He has further stated that, he underwent operation with internal fixation got discharged from the Hospital on 06.12.2013 with an advise to take bed rest, continue medicines and to take follow-up treatment as an outpatient and during the course of investigation, the injuries are found in his body, i.e., pain and swelling back and left ankle, lower back ach redistricted of movements back and left ankle, developed swelling and lower back pain Acute, slender and progressed in severity and redness with swelling acute, Lacerated 8 X 3 on right foot, swelling back and left ankle, tenderness back and left ankle, abhorred mobility back and left ankle, crepinis left and right, ROM restricted- redistricted ankle joint movements B/L, W/U right tibia philon's with compound comminuted calcaneal with left calcaneal, with left compression with and after treatment, he got discharged on 06.12.2013 and again due to heavy pain in his back bone and also for removal of rod, he got admitted to the very same Hospital on 16.05.2014 and the Doctor treated him as an inpatient from 16.05.2014 to 26.05.2014 and at that time, the rod was removed. He has further stated that, due to heavy pain in his back bone and also for formation of 30 ECA.NO.13/2014 (SCCH-7) pus in the said portion, the Doctor advised/suggested him to undergo major operation for the same, however rod fixed in his legs are still continued. He has further stated that, he again admitted to the same Hospital for 2nd time from 16.05.2014 to 26.05.2014 due to infection in the injures part of his body, i.e., right leg ankle and he underwent corrective surgery and after necessary treatment, he was discharged on 26.05.2014. He has further stated that, after necessary treatment, he was discharged with an advise to take complete bed rest for 2 years and continue medicines and to take follow-up treatment and accordingly, till today, he is under continuous follow-up treatment as an outpatient and since, he cannot go to Hospital undergo further operations due to financial problem. He has further stated that, he is suffering from permanent disability due to the fracture of both ankles and lower side back bone and the fracture of legs and back bones, he is not able to walk or stand and sit without support, cannot climb stairs, cannot use Indian type of toilet, cannot squat and cannot sit with cross legged, cannot bear minimum weight on his legs and in toto, he has lost his normal life and his disability is coming in the way of his day to day activities and avocation and consequently, he is undergoing great pecuniary loss. He has further stated that, due to injuries and permanent disability, he is not able to do any manual work in future and lost his earnings permanently for the rest of his life thereby he and his family members are undergoing great mental shock, agony and financial hardship 31 ECA.NO.13/2014 (SCCH-7) as he is the only earning member of the family. He has further stated that, always he will be sleeping on a bed and in the same place and all his day to day activities, like, bath, eating, drinking, sleeping and medicine, etc., are to be done in one place and he cannot move even single step from one place to another place and he has to take bed rest for 2 years as per the Doctor's advise. He has further stated that, he has lost his bright future in all respect including his marital and enjoyment life.
21. The P.W.2, who is an Assistant Professor in Department of Orthopedics at Vydehi Institute of Medical Sciences and Research Centre, Bangalore, has stated in his examination-in-chief that, the Petitioner was admitted in their Hospital on 15.11.2013 fall from building while constructing and he had sustained injuries, i.e., lacerated wound 8 x 2 cm +ve over right foot medial aspect, lacerated wound 2.5 x 1 cm +ve over right calcaneum, swelling +ve right and left ankle, grade -3 compound wound right calcaneum and abnormal mobility +ve right ankle and x-ray shows compression fracture L1 vertebra, right distal tibia fracture, right compound calcanium fracture, right inferior pubic rami fracture undisplaced, left calcanium fracture undisplaced and left fibula distal 1/3rd fracture undisplaced. He has further stated that, he underwent surgery on 18.11.2013 for right distal 1/3rd fracture Tibia and compound fracture calcanium with wound debridement closed reduction and external 32 ECA.NO.13/2014 (SCCH-7) fixation and K-wires and 3 cortical screws, post-op posterior slab applied post operatively antibiotics and analgesics given and he was discharged on 06.12.2013 after suture removal with advise of exercise, pin tract care, physiotherapy, spinal care and need for spinal surgery, regular follow-up and X-rays monthly. He has further stated that, the Petitioner was again re-admitted on 16.05.2014 for external fixator removal on 19.05.2014 surgery was done (external fixator and k-wires removed) and discharged on 26.05.2014 with an advise to review after 3 weeks and spinal care and spinal surgery and again the Petitioner took treatment as outpatient. He has further stated that, again the Petitioner lost follow-up on 10.07.2015 for assessment of disability and he complained of, i.e., difficulty in walking, pain in spinal region, right ankle, right foot, left heel, tingling and numbness in both lower limbs and difficulty in sitting, lying on one position for long duration. He has further stated that, on examination, deformity +ve T-L spine, tenderness +ve T-L spine, wasting +ve both lower limbs, power decreased in Hip, knee, and ankle - bilateral, sensation decreased bilateral lower limbs, Petitioner walking with limp, right leg appears shortened and wasted, deformity of right ankle and heal, subtalar joint painful and movements restricted right, deformity of left heel present, right lower limb 2 cm shortened and muscle wasting present, movement of right ankle and X-ray shows old L1 compression fracture, malunited fracture right lower end of tibia with implant in situ and there is evidence of secondary 33 ECA.NO.13/2014 (SCCH-7) osteoarthritis of right ankle and subtalar joint and malunited calcanium fracture - right. He has opined that, the Petitioner is suffering from spine 36%, right lower limb 26%, left lower limb 14% total 76% and the whole body 30%. He has further stated that, the assessment of disability has been done according to the Ministry of Social Justice and Empowerment Notification and his profession experience. The P.W.2 has produced Ex.P.53 Case Sheet, Ex.P.54 Discharge Summary, Ex.P.55 Outpatient Record and Ex.P.56 X-ray Films 15 in numbers.
22. The contents of Ex.P.5 Wound Certificate clearly disclosed that, in the said incident, the Petitioner had sustained 5 grievous injuries, i.e., laceration 8 x 3 cm left foot, laceration wound 2.5 cm x 1 cm over right - right tibia fracture, right calcanium fracture, inf. public ram fracture, right distal tibia fracture. The contents of Ex.P.53 Case Sheet and Ex.P.54 Discharge Summary clearly disclosed that, on 18.11.2013, the Petitioner was underwent surgery and by admitting as an inpatient from 15.11.2013 to 06.12.2013, i.e., for 22 days and again from 16.05.2014 to 26.05.2014, i.e., for 11 days, totally for 33 days, he took treatment to the said accidental injuries at Vydehi Institute of Medical Sciences and Research Centre, Bangalore. It is also clear from the contents of the said medical documents that, during the course of treatment, implants were inserted to the fracture site and also external fixator was inserted and thereafter, on 19.05.2014, 34 ECA.NO.13/2014 (SCCH-7) through surgery it was removed. The contents of Ex.P.55 Outpatient Record and Ex.P.56 X-ray Films further clearly disclosed about the regular follow-up treatment taking by the Petitioner to the said accidental injuries. No question or suggestions put to P.W.1 by the Respondent while cross- examining him in respect of the said medical evidence. But, the P.W.2 in his cross-examination has clearly stated that, at the time of discharge for the first time, the condition of the Petitioner was stable and the Petitioner came to their Hospital to take treatment during the period in between 06.12.2013 to 16.05.2014 and now also the Petitioner is having implants in situ. He has further stated that, based on Ex.P.53 to Ex.P.56 medical documents, he has assessed the disability of the Petitioner. The condition of the Petitioner after the incident is clear from the contents of the medical documents and he has not in a position to do his Carpenter work as he was doing earlier, i.e., at the time of incident. Therefore, the said extent of 30% disability as stated by the P.W.2 is believed and accepts.
23. It is already held by this Tribunal that, at the time of accident, the Petitioner was working under the Respondent as a carpenter when the incident was taken place. The said nature of injuries sustained by the Petitioner comes under Schedule - II of the Employees Compensation Act, 1923. As the Petitioner was a Carpenter at the time of incident and he had sustained the said injuries, due to which, he is definitely 35 ECA.NO.13/2014 (SCCH-7) suffering loss of earning capacity to an extent of 30%. Therefore, this Tribunal has come to the conclusion that, due the incidental injuries, the Petitioner is suffering from 30% disability to the whole body, which caused also functional activities and hence, the Petitioner has lost his earning capacity to an extent of 30%. Hence, the Petitioner is entitled for compensation towards loss of earning capacity due to the disability of 30%.
24. The factors, which determine the amount of compensation, are already decided by this Tribunal in the above said discussion.
25. The salary of the Petitioner is already held at Rupees 8,000/- per month. As per Section 4(1)(b) of the Employees' Compensation Act, 1923, where permanent total disablement results from the injury, an amount equal to 60% of the monthly wages of the injured, i.e., employee, multiplied by the relevant factor or an amount of Rupees 1,40,000/-, whichever is more, shall be considered. Therefore, the income per month comes to Rupees 4,800/- (Rupees 8,000/- x 60%).
26. As this Tribunal has already come to the conclusion that, at the time of accident, the age of the Petitioner was 25 years. The applicable multiplier corresponding to the said age of 25 years as per Schedule IV is 216-91. The disability of the Petitioner is already assessed at 30%. Therefore, the loss arising out of the said 30% 36 ECA.NO.13/2014 (SCCH-7) disability for monthly income of Rupees 4,800/- by applying multiplier 216-91 comes to Rupees 3,12,350-40, i.e., (Rupees 4,800/- x 216-91 x 30%). Hence, the Petitioner is entitled for Rupees 3,12,350-40 towards loss of earning capacity, which is rounded off Rupees 3,12,350/-.
27. The P.W.1 has stated that, he has spent Rupees 2,00,000/-, when he was Hospital from 15.11.2013 to 06.12.2013 towards Hospital expenses and treatment charges. He has further stated that, he has spent more than Rupees 4,00,000/- so far towards medicines, treatment, conveyance and other incidental charges. But, in this regard, the Petitioner has only produced Ex.P.9 to Ex.P.22 Medical Prescriptions and Ex.P.23 to Ex.P.52 Medical Bills, which is amounting of Rupees 17,893/-. The Petitioner took treatment as an inpatient for 33 days in Vydehi Hospital to the said accidental injuries. Considering the nature of the injuries and the line of treatment given to the Petitioner, the possibility of spending the said amount for the medicines cannot be doubted. Therefore, it is necessary to award the said actual medical expenses of Rupees 17,893/- to the Petitioner.
28. The P.W.1 has stated that, he required to undergo urgent operation, for which, he has to spent Rupees 2,00,000/. He has further stated that, he is still under treatment and the expenses towards treatment and other incidental expenses yet to ascertain. The P.W.2 has stated 37 ECA.NO.13/2014 (SCCH-7) that, the Petitioner needs one more surgery for implants removal right tibia and decompression, stabilization and fusion of spine for L1 fracture, for which, he may incur expenditure of Rupees 1,00,000/- in their Hospital and he needs rest for one month. To consider the same, neither the Petitioner nor the P.W.2 produced the estimation to show the actual future medical expenses. Further, there is no provision under the Employees Compensation Act, 1923 to award future medical expenses to the injured. Hence, the Petitioner is not entitled for any compensation towards future medical expenses.
29. In all, the Petitioner is entitled for total compensation of Rupees 3,30,243/- (Rupees 3,12,350/- + Rupees17,893/-).
30. Though the Respondent was aware of the employment of the Petitioner, accident, injuries and treatment and having aware that, the Petitioner has filed the present case, he neither deposited the required compensation within the stipulated time nor intimated the accident to the concerned Authority in accordance with law. Hence, it is just, proper and necessary to award interest at the rate of 12% per annum on the said compensation amount from 15.12.2013 till he deposit the said compensation amount. Therefore, the Petitioner is entitled for total compensation of Rupees 38 ECA.NO.13/2014 (SCCH-7) 3,30,243/- along with interest at the rate of 12% per annum on the above said sum, from 15.12.2013 till payment.
31. The P.W.1 has stated that, he and his sisters did not have money and hence, approached the Respondent to help for treatment, but, he refused and warned not come and again with the same demand and threatened with dire consequences. He has further stated that, when he was under
treatment in the Hospital as in patient, the Respondent assured and promised to bear all medical, hospital and other expenses for his treatment by telling that he fallen down from his working place and based on the assurances and promises given by the Respondent, he and his sisters did not choose to take any legal action as against the Respondent and he was under the impression that, the Respondent would look after him in all respect and would meet the medical and Hospital expenses etc., He has further stated that, since his two sisters, namely, Lakshmi and Anju were looking after the day to day affairs of him by spending all medical, Hospital, medicine and daily dressing, conveyance expenses and therefore, he was unable to bear the expenses. He has further stated that, the said accident is well within the knowledge of the Respondent and hence, no notice is issued to the Respondent. He has further stated that, he along with his sisters have approached the Respondent on several occasions and requested to pay compensation and settle the issue by 39 ECA.NO.13/2014 (SCCH-7) paying compensation, but, the Respondent failed to settle the dispute and not paid any compensation to him.
32. While answering Issue No.1, this Tribunal has already come to the conclusion that, during the course of employment under the Respondent, i.e., when he was doing frame work by tying rope at the outside the building while working along with other workers, at that time, the said rope tarred and he fallen down from 5th Floor of the said building, which belongs to the Respondent and due to which, he sustained grievous injuries and the relationship in between the Petitioner and the Respondent is that off employee and employer. Hence, the Respondent is liable to pay the above said compensation and interest to the Petitioner. In view of the above said reasons and observations, the principles enunciated in the decision cited by the Learned Counsel appearing for the Petitioner are aptly applicable to the present facts and circumstances of the case on hand. On the other hand, the principles enunciated in the decision cited by the Learned Counsel appearing for the Respondent are not applicable to the present facts and circumstances of the case on hand. Hence, Issue No.2 is answered accordingly.
33. ISSUE NO.3 :- For the aforesaid reasons, I proceed to pass the following, 40 ECA.NO.13/2014 (SCCH-7) ORDER The petition filed by the Petitioner under Section 22 of the Employee's Compensation Act, 1923, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 3,30,243/-
with interest at the rate of 12% p.a. from 15.12.2013 till the date of payment, from the Respondent.
The Respondent shall deposit the said compensation and interest in this Tribunal, within one month from the date of this Order.
In the event of deposit of compensation and interest, entire amount shall be released in favour of the Petitioner through account payee cheque, on proper identification.
Advocate's fee is fixed at Rupees 1,000/-.
41 ECA.NO.13/2014(SCCH-7) Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 19th day of January, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Sri. P.Raju
P.W.2 : Dr.Rajesh
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : Certified Copy of the Statement Ex.P.2 : Certified Copy of FIR Ex.P.3 : Certified Copy of Charge Sheet Ex.P.4 : Certified Copy of Mahazar Ex.P.5 : Certified Copy of Wound Certificate Ex.P.6 : Original Outpatient care Record Ex.P.7 : X-ray Ex.P.8 : X-ray Ex.P.9 to : 14 Medical Prescriptions Ex.P.22 Ex.P.23 to : Medical Bills Ex.P.52 Ex.P.53 : Case Sheet Ex.P.54 : Discharge Summary Ex.P.55 : Outpatient Record Ex.P.56 : X-ray Films (15 in nos.) 42 ECA.NO.13/2014 (SCCH-7)
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : Sri.N.Krishnappa
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Job work wages
Ex.R.2 : Original Account leaves containing
Page No.1 to 14 (In Page No.4, the original of Ex.R1 is there) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.