Karnataka High Court
Oriental Insurance Co Ltd vs Liyakat on 26 August, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.9530/2008 (WC)
BETWEEN:
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
44/45, RESIDENCY ROAD,
BANGALORE-560 025. ... APPELLANT
(BY SRI.A.N. KRISHNASWAMY, ADVOCATE)
AND:
1. LIYAKAT
S/O MOHAMMED YUSUF
AGED ABOUT 42 YEARS
NAKKUNDI POST,
RAILWAY STATION ROAD
CHINTHAMANI TALUK
KOLAR DISTRICT.
2. SYED SHAMSHUDDIN
S/O LATE SYED MOHIDDIN
NO.16, Y.N. LAYOUT,
KRISHNAPPA GARDEN
JAYANAGAR
BANGALORE-560 041. ... RESPONDENTS
(BY SMT P.V. KALPANA, ADVOCATE FOR R-1;
NOTICE TO R-2 DISPENSED WITH V/O DATED
28.06.2011)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF WC
ACT AGAINST THE JUDGMENT & AWARD DATED
2
18.06.2008 PASSED IN W.C.NO.WCA/B-
4/NFC/CR.NO.69/2006 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, SUB DIVISION-4, BANGALORE,
AWARDING A COMPENSATION OF Rs.4,42,008/- WITH
INTEREST @ 12% P.A.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Insurer is in appeal challenging the order and award passed by Commissioner for Workmen's Compensation, Bangalore (hereinafter referred to as the 'Commissioner') in No.WCA/B-4/NFC/CR-69/2006 dated 18.06.2008 whereunder claim petition filed under Section 22 of the Workmen's Compensation Act came to be allowed in part and compensation of Rs.4,42,008/- has been awarded with interest @ 12% p.a. payable after one month from the date of accident.
2. Heard Sri A.N.Krishna Swamy, learned Advocate appearing for appellant and Smt.P.V.Kalpana, learned Advocate appearing for respondent-1. Perused the records secured from the Commissioner.
3
3. Respondent-1 herein filed a claim petition before the Commissioner contending that on 14.10.2006 at about 12.15 a.m. he was driving a lorry bearing No. KA-05-D-8244 and owing to the negligence of another lorry it dashed against vehicle he was driving on account of which he claimed that he sustained injuries to his left leg and abdomen. Before the Commissioner, he got himself examined as P.W.1 and also examined three Doctors as P.Ws.2, 3 & 4. On evaluation of evidence, Commissioner allowed the claim petition in part and has awarded compensation of Rs.4,42,008/- with interest @ 12% p.a. . It is this order and award which is under challenge in this appeal.
4. It is the contention of Mr.A.N.Krishna Swamy, learned Advocate appearing for insurer - appellant that Commissioner was not justified in coming to conclusion that claimant was aged 40 years even though evidence on record would indicate that he was around 50 years as on the date of accident and as such, by considering his age as 50 years, appropriate factor was required to be adopted. He would also contend that disability as assessed by the Doctor is 90% and Commissioner could not have taken the disability at 4 100% for computation of 'loss of earning capacity'. He further submits that interest which was required to be awarded was after one month from the date of adjudication or order passed by the Commissioner and non consideration of this aspect has resulted in great failure of justice . Hence he prays for substantial questions of law as formulated in the appeal memorandum require to be formulated, adjudicated and answered in favour of the insurer.
5. On the other hand, Smt.Kalpana, learned Advocate appearing for respondent-1 would support the order and award passed by the Commissioner.
6. Having heard the learned Advocates appearing for parties and on perusal of the records, I am of the considered view that this appeal does not involve any substantial question of law requiring to be formulated and answered for the following reasons:
Discharge summary which has been produced and marked before the Commissioner as per Ex.P-6 would indicate that age of the claimant was 40 years. Likewise, Ex.P-12 & P-13 - OPD slips issued by the Bowring and Lady Curzon Hospital, would also indicate that age of claimant as 5 40 years. Driving licence of the claimant produced before the Commissioner and marked as Ex.P-7 does not indicate the date of birth of claimant and said column has been left blank. Even in the affidavit filed in lieu of examination-in-
chief, claimant has contended that he is aged 40 years. Thus, evidence available on record would clearly indicate that claimant was aged about 40 years as on date of accident, which is also reflected in the charge sheet filed by jurisdictional police. In view of said cogent evidence available on record, it cannot be held that age of claimant should be construed as 50 years and contention raised in this regard stands rejected.
7. Insofar as disability construed by Commissioner at 100% also requires to be confirmed for reasons more than one. Undisputedly, claimant was working as a driver at an undisputed point of time and on account of injuries now sustained, he has not been able to discharge his duties as driver and it has been pleaded by him on account of said injuries it has resulted in 100% disability. Claimant was initially treated at General Hospital, Tumkur and later on shifted to Acura Speciality Hospital, Koramangala, Bangalore and was inpatient at said Hospital from 15.10.2006 to 6 28.11.2006. Doctor who has been treated him has been examined as P.W.2. He has stated that claimant had sustained injury to his left leg with fracture of both bones, injury to pelvis with fracture and peritonitis and injury to the terminal ileum and has classified these injuries as grievous in nature.
8. P.W.3 was an Orthopaedic Surgeon at Bowring and Lady Curzon Hospital, Bangalore and he has examined the claimant for assessment of disability. He has stated that claimant had sustained following injuries.
(a) Injury to left leg with fracture both the bones.
(b) Injury to pelvis with fracture.
(c) Blunt injury abdomen with mesenteric tear and
gangrene of ileum.
9. Claimant was an inpatient at Acura Hospital and was operated upon on 15.10.2006 for emergency leparotomy, resection of gangrenous bowel and again on 23.10.2006 he was operated for closed reduction and IM Nailing done for fracture of left tibia. P.W.3 - Doctor has categorically stated that claimant cannot work as a driver. This opinion of the Medical Practitioner is in consonance with explanation (2) to 7 Section 4(1)(c)(ii) of Workmen's Compensation Act.
Undisputedly, injuries sustained by the claimant are not schedule injuries. Hence, Doctor's evidence will acquire much significance for assessing disability or to ascertain proportionate loss of earning capacity of the workman. In this background, when evidence of P.W.3 - Doctor is perused, only inference that could be drawn is that claimant would be unable to discharge his duty as a driver and there is no material on record to establish that he was engaged in any other avocation.
10. It is not in dispute that claimant had sustained abdominal injury and as such, he had complained of repeated abdominal pain and he was clinically evaluated by the Doctor - P.W.4 who has opined as under:
"On examination - 16 cms. wound scar over the anterior abdomen, with deficient in the scar, on strain and on cough, the cough, the caugh impulses present i.e., incisonal hernia present and palpation multiple hard substances felt i.e., adhesions of small bowel. Patient needs further investigation and mesh repair for incisional hermio."
In conclusion, Doctor has opined as under:
"With all these problems he is unable to carry out any type of work 8 including driving. He can't sit even for some time."
In the light of said evidence available on record and insurer having failed to demonstrate by any other evidence to prove that claimant is capable of carrying on any other avocation, it cannot be gainsaid by the appellant-Insurer that disability as assessed by the Commissioner at 100% is excessive or not commensurate with the disability suffered by the claimant.
11. In identical circumstances, Hon'ble Apex Court in the case of S.SURESH VS. ORIENTAL INSURANCE CO. LTD., AND ANOTHER reported in 2010(4) KCCR 3079 has held as under:
"7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(1) of the Act and as such the compensation payable to the claimant had to be computed on that basis. In support of the plea, reliance is placed on a four-Judges Bench decision of this Court in Pratap Narain Singh Deo v. Srinivas Sabata and Another, AIR 1976 SC 222. In that case, a carpenter had suffered amputation of his left arm from the elbow. This Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under:9
"5. The expression "total disablement"
has been defined in Section 2(1)(1) of the Act as follows:
(1) "Total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.
It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
The injured workman in this case is carpenter by profession.... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding."
8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act, 1988."10
12. Total disablement which is defined under Section 2(1)(b) of the Workmen's Compensation Act, 1923 has to be understood in the background of claimant being unable to carry on the avocation which he was carrying as on the date of accident due to accidental injuries. Explanation to Section 4(1)(c)(ii) would indicate that Commissioner will have to award compensation to a workman in case of non- schedule injuries based on opinion of the Medical Practitioner namely, what would be the loss of earning capacity of the workman in proportionate to the injuries sustained and consequential disability suffered. In this background when evidence on record is examined, it would clearly indicate that both P.Ws.3 and 4 have in unequivocal terms stated that claimant is unable to do any work including that of discharging his duties as driver. Said finding also does not suffer from infirmity calling for interference. Hence, contention raised by Mr.A.N.Krishnaswamy, learned Advocate appearing for appellant, stands rejected.
13. Insofar as contention regarding interest awarded by Commissioner being erroneous, is liable to be rejected and it 11 does not detain this Court too long to reject said contention inasmuch as, proviso to Section 4A of the Act is clear and unambiguous. A statutory duty is cast on the employer to deposit compensation within 30 days from the date of accident. Failure to do so, interest starts accruing from the next day namely, from 31st day. In the instant case, Commissioner has awarded interest @ 12% p.a. on award amount payable after 30 days from the date of accident till payment, since employer had not deposited any amount before Commissioner for Workmen's Compensation and said finding is just and proper.
14. For the reasons aforestated, I am of the considered view that appeal is liable to be dismissed. Hence, I pass the following:
JUDGMENT (1) Appeal is hereby dismissed.
(2) Order and award passed by Commissioner for Workmen's Compensation, Bangalore in No.WCA/B-4/NFC/CR-69/2006 dated 18.06.2008 is hereby affirmed.12
(3) Registry shall pay the amount deposited by the appellant before this Court to the first respondent forthwith on proper identification.
(4) No costs.
Sd/-
JUDGE *sp