Karnataka High Court
The Oriental Insurance Co Ltd vs Rajesh K on 24 January, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 5341 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 5341 OF 2018 (WC)
BETWEEN:
THE ORIENTAL INSURANCE CO LTD.,
DO-10, NO 213-127, NAGAPRABHA CHAMBERS
3RD MAIN ROAD, 4TH CROSS, CHAMARAJPET
BANGALORE THROUGH ITS
BENGALURU REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX
RESIDENCY ROAD CROSS, BENGALURU 560025
REPRESENTED BY ITS DEPUTY MANAGER
Digitally signed ...APPELLANT
by JAI JYOTHI J
Location: HIGH
COURT OF (BY SRI. S V HEGDE MULKHAND, ADVOCATE)
KARNATAKA
AND:
1. RAJESH K
AGED ABOUT 24 YEARS
S/O KRISHNAPPA
R/O BEGLIHOSAHALLI VILLAGE & POST
KOLAR TALUK & DISTRICT 563102.
2. MANJUNATHA
S/O MANIYAPPA, MAJOR IN AGE,
R/O CHATRAKODIHALLI VILLAGE
BEGLI POST,
KOLAR TALUK & DISTRICT 563102.
... RESPONDENTS
(R1, R2-SERVED-UNREPRESENTED)
THIS MFA FILED U/S 30(1) OF THE EMPLOYEE'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
AWARD DATED 04/04/2018, PASSED IN ECA.NO.6/2014, ON
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MFA No. 5341 of 2018
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, KOLAR,
AWARDING COMPENSATION OF RS.1,40,000/- WITH INTEREST
AT 12% PER ANNUM FROM THE DATE OF ACCIDENT VIZ.
26.05.2008, TILL REALIZATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-30(1) of the Employee's Compensation Act (hereinafter referred to as 'EC Act' for brevity) by the appellant-insurance company, calling in question the judgment and award dated 04.04.2018, passed in E.C.A.No.6/2014, on the file of the 1st Additional Senior Civil Judge, Kolar, (hereinafter referred to as 'the Commissioner/Tribunal' for brevity) for reducing the quantum of compensation.
Brief facts:
2. The claimant was working as a Driver in the milk tempo bearing registration No.MH.16-B-3013 belonging to the first respondent and he was being paid monthly salary of Rs.4,000/- and daily batta of Rs.50/-. -3- MFA No. 5341 of 2018
On 26.05.2008, at about 12.30 p.m., when the claimant was discharging his duties as Driver in the said tempo, the said tempo met with an accident near Dandupalya of Hoskote Town, on Kolar-Bangalore NH-4 Road and as a result the claimant sustained grievous injuries all over the body.
3. Hence, a claim petition was filed by the claimant under Section-22(4) of the Employee's Compensation Act of 1923, claiming compensation for the injuries suffered in the accident during employment. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of Rs.1,40,000/-, along with interest at 12% per annum from the date of accident till the date of realisation. The Tribunal held the insurance company, liable to pay the compensation.
4. Heard arguments of the learned counsel for the parties and perused the materials on record. -4- MFA No. 5341 of 2018
5. The claimant while driving the Tempo had met with an accident. The insurance company contended that the claim petition is not maintainable, but the fact remains that the claimant being driver under the employment of respondent, had sustained injuries. Therefore, this is a case that the claimant had sustained employmental injuries during the course of the employment. Therefore, the claimant has sustained injuries as employmental injuries under the EC Act. The observations of the Tribunal in this regard are appropriate and hence kept intact.
6. The Tribunal has granted a compensation of Rs.1,40,000/-, by construing that the case is coming under the provisions of Section-4(1)(b) of the E.C. Act, the Tribunal ought to have quantified the compensation of Rs.53,450/- as per Section-4(1)(c) of E.C. Act but by getting impression that the case comes under Section- 4(1)(b) of the E.C. Act has awarded maximum compensation of Rs.1,40,000/-. This is under challenge. -5- MFA No. 5341 of 2018
7. The learned counsel for the appellant - insurance company submitted that in the present case the claimant had suffered the permanent partial disability of 10%, as per the evidence of the Doctor-PW-2. Therefore, it is not a case of permanent total disability, so as to apply clause-(b), sub-section-(1) of Section-4 of E.C. Act. Therefore, where the case comes under sub-clause-(ii) of clause-(c) of sub-section-(1) of Section-4 of E.C. Act, what would be the percentage of permanent partial disability, to that extent only the compensation is to be granted. But the Tribunal has committed error, therefore prays for modification of the award, so as to award the compensation under sub-clause-(ii) of clause-(c) of sub- section-(1) of Section-4 of E.C. Act.
8. In the present case, the Doctor PW-2 has stated that the claimant has suffered permanent partial disablement, this is observed by the Tribunal itself. Therefore, it is proved that the claimant had suffered -6- MFA No. 5341 of 2018 'permanent partial disablement' only and not 'permanent total disablement'. Therefore, Section-4(1)(b) of the E.C. Act is applicable only when the injured claimant suffers 'permanent total disability' as per Schedule-I and the determined compensation is less than Rs.1,00,000/-, then maximum at Rs.1,40,000/- can be awarded. But in the present case, the claimant has suffered 'permanent partial disability' and not 'permanent total disability' as per the Doctor's evidence. It is also considered by the Tribunal in its judgment that Section-4(1)(b) of E.C.Act is not applicable, then the compensation is to be awarded as per Section-4(1)(c) of E.C. Act. Therefore, what would be actual determination of compensation so far as 'permanent partial disability' is concerned that is to be awarded. Therefore, the Tribunal has committed error as even though the claimant had suffered 'permanent partial disability' but has granted compensation as if the case is 'permanent total disability' which is not correct. Therefore, the same is needed to be modified.
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9. Therefore, the case comes under 'permanent partial disability'. Hence, the case is considered under these provisions only. The accident was caused on 26.05.2008, therefore, the notional income of Rs.4,000/- per month is to be considered. The Doctor has stated that the claimant suffered 10% permanent partial disability that is correctly held by the Tribunal. Therefore, as per Section-4(1)(c) of E.C. Act the quantum of compensation is assessed as follows:
Rs.4,000 x 60% x 10% x 222.71 = Rs.53,450/-
10. Since as discussed above, the case is coming with the definition of Section-4(1)(c)(ii) of E.C. Act. The above determination compensation can only be awarded to the claimant. Therefore, the judgment and award passed by the Tribunal is modified to the above extent. Hence, the respondent - claimant is entitled for compensation of Rs.53,450/- along with interest @ 12% from the date of -8- MFA No. 5341 of 2018 the accident till the date of realization. Therefore, the appeal is liable to be allowed in part.
11. Since the appellant / insurance company has deposited the excess amount, therefore by deducting the above determined compensation, the excess amount of compensation shall be refunded to the appellant-
insurance company.
12. Accordingly, I pass the following:
ORDER i. The appeal is Allowed.
ii. The impugned judgment and award dated 04.04.2018, passed in E.C.A.No.6/2014, on the file of the 1st Additional Senior Civil Judge, Kolar, is modified to the aforesaid extent.
iii. The respondent - claimant is entitled for compensation of Rs.53,450/- along with -9- MFA No. 5341 of 2018 interest @ 12% from the date of the accident till the date of realization iv. The appellant - insurance company shall pay the compensation to the claimant.
v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vi. The amount in deposit shall be transmitted to the Tribunal and the excess deposited amount shall be refunded to appellant-insurance Company, forthwith.
vii. No order as to costs.
viii. Draw award accordingly.
Sd/-
JUDGE JJ List No.: 1 Sl No.: 58