Karnataka High Court
Ramesh G vs M/S Swastik Road Lines Pvt. Ltd., on 3 July, 2019
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2019
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
MISCELLANEOUS FIRST APPEAL NO.6791/2016(WC)
BETWEEN:
RAMESH G.,
S/O GOVINDASAMI,
AGED 30 YEARS,
RESIDING AT C/O SHANKAR
NO.25, 2ND CROSS,
ANJINAPPA GARDEN,
MYSORE ROAD,
BENGALURU-560 018.
... APPELLANT
(BY SRI SRIDHAR D. S., ADVOCATE)
AND:
1. M/S SWASTIK ROAD LINES PVT. LTD.,
18B, CMDA TRUCK TERMINAL,
MADHAVARAM, CHENNAI,
TAMILNADU-600 110
REPRESENTED BY ITS MANAGER
2. M/S UNITED INDIA INSURANCE CO. LTD.,
5TH AND 6TH FLOOR,
2
KRUSHI BHAVAN BUILDING,
HUDSON CIRCLE,
BENGALURU-560 001.
REPRESENTED BY ITS MANAGER,
... RESPONDENTS
(BY SRI RAVISH BENNI, ADVOCATE FOR R2;
R1 IS SERVED, BUT UNREPRESENTED)
****
THIS MFA IS FILED UNDER SECTION 30(1) OF THE
EMPLOYEES COMPENSATION ACT, AGAINST THE
JUDGMENT AND AWARD DATED: 26.07.2016 PASSED IN
ECA NO.244/14 ON THE FILE OF THE 7TH ADDITIONAL
JUDGE & 32ND ACMM, BENGALURU, PARTLY ALLOWING
THE PETITION FILED UNDER SECTION 22 OF EMPLOYEE'S
COMPENSATION ACT.
THIS MFA COMING UP FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
JUDGMENT
The appellant - claimant filed the present appeal for enhancement of compensation against the Judgment & Award dated 26.7.2016 made in ECA No.244/2014 on the file of the Commissioner for Employee's Compensation/ Tribunal awarding the total compensation of Rs.1,52,489/- 3 with interest at the rate of 12% per annum from the date of the accident till its realization.
2. The claimant filed the claim petition under the provisions of Section 22 of the Employee's Compensation Act, 1923 ('the Act' for short) seeking compensation contending that he was working as a driver under the 1st respondent in the canter bearing Regn. No.TN-18-F-5960 which was duly insured with the 2nd respondent - Insurance Company. On 23.4.2013 at about 10.00 p.m., when the claimant was driving the Canter on the NICE road, near Andrahalli Bridge, one lorry bearing No.KA-01-A 8723 was proceeding in front of his vehicle and the lorry driver suddenly applied brake and in view of the above, Canter hit against the lorry and due to the said accident, the vehicle was badly damaged and the claimant sustained compound fracture of left leg both bones, injuries over the right leg and forehead, head injury and other injuries all over the body. Immediately after the accident, the claimant was 4 shifted to Victoria hospital, wherein he was treated as an in-patient and necessary examination was done and thereafter was shifted to Minto hospital and again shifted to Jipmer hospital, Pudichery for treatment. It is further contended that he was drawing monthly wages of Rs.10,000/-. Due to the accidental injuries, he became permanently disabled. Therefore, he has filed the claim petition seeking compensation.
3. Inspite of service of notice, the 1st respondent has failed to appear before the Court and he was placed exparte. The 2nd respondent - Insurance Company has filed objections and denied the averments made in the claim petition, but admitted that the insurance policy was in force as on the date of the accident and contended that the accident occurred due to the rash and negligent driving of the claimant who was driving the Canter and as such he is not entitled to any compensation. The 2nd respondent also denied the relationship of employer and employee between 5 the respondent No.1 and the claimant and sought for dismissal of the claim petition.
4. Based on the pleadings, the Commissioner for Employee's Compensation/Tribunal has framed the following issues;
1 Whether the petitioner proves that he was the driver of Canter bearing Reg. No. TN-18-F- 5960 and has sustained injuries in road traffic accident occurred on 23-04-2013 at about 10-00 p.m. as alleged in the petition?
2. Whether the petitioner proves that he was the employee of the respondent No.1 as on the date of alleged incident and sustained injuries during the course of employment?
3. Whether the petitioner is entitled for any compensation? If so, to what extent and from whom?
5. In order to prove his case, the petitioner examined himself as PW.1 and doctor as PW.2 and Medical Record 6 Technician as PW.3 and got marked the documents - Ex.P1 to Ex.P12. The respondents did not adduce any evidence, but got marked one document i.e, Ex.R1, which was in force as on the date of the accident.
6. The Commissioner for Employee's Compensation/ Tribunal after considering the entire material on record, recorded a finding that the claimant proved that he was the driver of the Canter bearing Regn. No.TN 18-F 5960 and has sustained the injuries in the road traffic accident occurred on 23.4.2013 at about 10 p.m. during the course of his employment and accordingly the claimant is entitled to compensation and awarded total compensation of Rs.1,52,489/- with interest at 12% per annum. Hence the present appeal is filed for enhancement of compensation.
7. The Insurance Company has not filed any appeal against the impugned Judgment & Award passed by the Tribunal.
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8. This Court admitted the appeal to consider the following substantial question of law.
"Whether the Commissioner for Employee's Compensation/Tribunal is justified in assessing the disability of the claimant at 15% in view of the evidence of doctor - PW.2 who has stated on oath that the claimant is suffering from 29% disability towards whole body, ignoring the statutory provisions of Section 4(1)(c)(ii) of the Employee's Compensation Act, 1923, in the facts and circumstances of the case ?
9. I have heard the learned counsel for the parties to the lis.
10. Sri D.S. Sridhar, learned counsel for the appellant mainly contended that the Tribunal erred in taking percentage of disability at 15% ignoring the evidence of the doctor - PW.2 who has stated on oath that the claimant is suffering from 29% disability to the whole body. Therefore, he sought to allow the appeal.
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11. Per contra, Sri Ravish Benni, learned counsel for the Respondent No.2 - Insurance company sought to justify the impugned Judgment & Award and contended that the Tribunal was justified in taking disability at 15% on the basis of the evidence of PW.2. He would further contend that the claimant cannot maintain the petition as the accident occurred due to his own rash and negligent driving of the canter. Therefore, he sought to dismiss the appeal.
12. Having heard the learned counsel for the parties, it is the specific case of the claimant who is examined as PW.1 that he was working as driver under the 1st respondent in the Canter bearing No.TL 18F 5960 and the 1st respondent employer used to pay monthly wages of Rs.10,000/- to him. He further contended that due to the accident occurred, he has sustained compound fracture of both bones of left leg, injuries over right leg & forehead and head injuries and other injuries all over the body. 9
13. In support of his case, the claimant examined the doctor - PW.2 who has stated on oath as under:
"Mr. Ramesh (claimant) has restricted ROM in both his Hips and left Knee along with pain in both thighs, left knee and leg. He has moderate difficulty to climb stairs, squat, sit cross legged and kneel. He has 29% (added by combining formula) whole body disability due to permanent physical impairment in his right lower limb (22%) and left lower limb(10%) according to clinical and radiological assessment as per Government of India, Gazette notification guidelines 2001."
14. In the cross-examination, PW.2 has withstood the statement made in the examination-in-chief as under:
"The permanent physical impairment in the left lower limb is 22% and in the right lower limb is 10% and 29% is combined formula towards whole body disability. It is false to suggest that when permanent physical impairment in both left and right lower limb is combined, which becomes 29% and in that 1/3rd of total disability to be calculated. I have assessed the disability to the whole body on the basis of Central government gazette notification."10
15. At this juncture, it is relevant to extract the provisions of Section 4(1)(c) (ii) of the Act, which is as under:
"Section 4(1)(c)(ii): In the case of an injury not 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 (as assessed by the qualified medical practitioner) permanently caused by the injury."
16. The Tribunal erred in taking percentage of disability at 15% ignoring the medical records and the evidence of the qualified doctor - PW.2 who has stated on oath that the claimant is suffering from 29% disability to the whole body. Therefore, the percentage fixed by the Tribunal is contrary to the provisions of Section 4(1(c)(ii) of the Act.
17. For the reasons stated above, the substantial question of law framed in the present appeal is answered in the negative holding that the Tribunal is not justified in 11 assessing the disability of the claimant at 15% in view of the evidence of doctor - PW.2 who has stated on oath that the claimant was suffering from 29% disability towards the whole body and in view of the provisions of Section 4(1)(c)(ii) of the Act. Accordingly, the percentage of disability of the claimant has to be taken at 29% as per the evidence of the doctor - PW.2.
18. The Tribunal has taken the monthly wages of the claimant at Rs.8,000/- and '60% of the wages' i.e., Rs.4,800/- is taken as contemplated under Section 4(1b) of the Act. The age of the claimant as on the date of the accident was 28 years and therefore the Tribunal rightly taken the relevant factor applicable i.e., 211.79. These aspects are not challenged either by the claimant or the Insurance Company. The percentage of disability is 29% as stated supra. Therefore the claimant is entitled for compensation of Rs.2,94,811/- (Rs.4,800 x 211.79 x 29%). 12
19. In view of the aforesaid reasons, the appeal is allowed in part. The impugned Judgment and Award passed by the Commissioner for Employee's Compensation/ Tribunal is modified. The appellant - claimant is entitled to total compensation of Rs.2,94,811/- as against Rs.1,52,489/- awarded by the Tribunal, together with interest at 12% per annum after one month from the date of the accident till its realization Therefore the appellant
- claimant is entitled to enhanced compensation of Rs.1,42,322/- (Rupees one lakh forty-two thousand three hundred and twenty-two only) with interest as stated supra.
Ordered accordingly.
Sd/-
JUDGE Gss/-