Karnataka High Court
Mukesh Kumar vs Kulhari Tours And Travels And Anr on 3 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
NC: 2025:KHC-K:2803
MFA No. 200468 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO.200468 OF 2023 (ECA)
BETWEEN:
MUKESH KUMAR
S/O SHANKARLAL MOOND,
AGE: 32 YEARS,
OCC: DRIVER (NOW-NIL),
R/O: SINGANOOR UDAIPUR WATI,
NOW AT C.I.B COLONY, KALABURAGI.
...APPELLANT
(BY SMT. SRIDEVI J.TUPPAD, ADVOCATE)
AND:
1. KULHARI TOURS AND TRAVELS
PROF. MAHIPAL SINGH,
Digitally signed AGE: MAJOR,
by RAMESH OCC: OWNER OF SWIFT CAR
MATHAPATI
Location: HIGH ITS NO.MH-14-FC-0703,
COURT OF A-4/804 SPARKELT MEGAPOLIS,
KARNATAKA
VILLAGE-MAAN, TALUK: MULASHI,
DISTRICT: PUNE - 411 057.
2. THE BRANCH MANAGER
M/S ROYAL SUNDARAM
ALLIANCE INSURANCE CO. LTD.,
DOOR NO.3, PLOT NO.40 AND 41,
MAHANTH ARCADE MAHANTH NAGAR,
KALABURAGI - 585 102.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
V/O DATED 31.01.2023 NOTICE TO R1 IS DISPENSED WITH)
-2-
NC: 2025:KHC-K:2803
MFA No. 200468 of 2023
HC-KAR
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE EMPLOYEE COMPENSATION ACT, 1923,
PRAYING TO CALL FOR RECORDS AND MODIFY THE JUDGMENT
AND AWARD DATED 08.06.2022 TO ENHANCE THE
COMPENSATION RS.15,00,000/- AS PRAYED BY THE
APPELLANT HEREIN E.C.A.NO.38/2017 BY THE HON'BLE IN THE
COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE AT
KALABURAGI BY THE EMPLOYEE COMPENSATION ACT, 30(1)
1923 ALLOWING THE APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
With consent of both parties, matter is heard for final disposal.
2. Challenging judgment and award dated 08.06.2022 passed by I Addl. Senior Civil Judge and Commissioner Workman Compensation, Kalaburagi in ECA no.38/2017, this appeal is filed.
3. Smt.Sridevi J. Tuppad, learned counsel for claimant submits that claimant was employee and driver in car belonging to respondent no.1, insured with respondent no.2, on monthly salary of Rs.15,000/- and daily bhatta of Rs.200/-. While he was on duty, on 04.10.2016 driving Maruti Swift car bearing -3- NC: 2025:KHC-K:2803 MFA No. 200468 of 2023 HC-KAR registration no.MH-14/FC-0703 from Mumbai Airport towards Pune city with a passenger, it met with accident near Urse village. Immediately after accident, claimant was shifted to Pawana hospital, Pune. He also took treatment in Ruby Hall Clinic at Pune, Savai Manasingh Hospital at Jaipur, Neuro Care Hospital at Jaipur, Jain Hospital at Jaipur and S.M.S. Hospital at Jaipur, but, he did not recover fully and sustained permanent physical disability / loss of earning capacity. Therefore, he filed claim petition under Sections 3, 4, 10 and 22 of Employee's Compensation Act, 1923 against employer and insurer.
4. On service of notice only insurer contested petition denying claim averments in total. Based on pleadings Trial Court framed issues and recorded evidence. Claimant deposed as PW-1 and Dr.Raju Kulkarni as PW-2 and Ex.P-1 to 23 were marked. Insurer did not lead any evidence.
5. On consideration, Tribunal held relationship of employee, employer and insurer between claimant, respondents no.1 and 2 as established. Occurrence of accident in course and out of employment and claimant sustaining permanent disability and lost earning capacity and entitled for -4- NC: 2025:KHC-K:2803 MFA No. 200468 of 2023 HC-KAR compensation were established. Tribunal determined age of claimant as 28 years and adopted applicable factor of 211.79. Though, PW-2 issued Ex.P-16 (Disability Certificate) assessing whole body disability as 80%, Tribunal considered loss of earning capacity at 27% and awarded Rs.2,74,480/-. It also awarded Rs.9,00,000/- towards medical expenses and held insurer liable to pay same from date of accident. Learned counsel for appellant submits that while passing impugned judgment, only on ground that PW-2 had not treated claimant, Tribunal slashed disability assessed by 1/3rd, which was contrary to law, especially Ex.P-16 (Disability certificate) and Ex.P-18 (X-ray report). Therefore, substantial question of law about award being contrary to material available on record arises for consideration. On said ground, sought for allowing appeal.
6. Sri Sudharshan M, learned counsel for respondent no.2 on other hand opposes appeal. It was submitted that Tribunal had rightly taken note of material available on record and awarded just compensation.
-5-
NC: 2025:KHC-K:2803 MFA No. 200468 of 2023 HC-KAR
7. Heard learned counsel, perused impugned judgment and award and copies of deposition and exhibits made available for perusal, by learned counsel for appellant.
8. In view of above, following substantial question of law would arise for consideration:
"Whether compensation determined by Tribunal is in ignorance of materials available on record, namely Ex.P-16 and 18 and deposition of PW-2?"
9. On outset of provisions of Section 4 (1) (c) (ii) of Employee's Compensation Act, 1923 would require assessment of loss of earning capacity by a qualified medical practitioner only. There is no provision in Workman Compensation Act and Employee's Compensation Act mandating assessment of loss of earning capacity only by doctor, who had treated workman. There would be no bar for consideration of deposition of any qualified medical practitioner, who would have examined claimant and substantiates physical disability/loss of earning capacity. In accident on hand, claimant as PW-1 deposed about nature of injuries as well as treatment taken. He has specifically stated that despite treatment, he had sustained physical disability i.e. loss of sensation and grip of left arm and -6- NC: 2025:KHC-K:2803 MFA No. 200468 of 2023 HC-KAR shoulder in entirety. PW-2 has corroborated same. He has specifically stated about clinical examination and verification of treatment records of claimant. His affidavit examination in chief contains following:
"Records Verified:
1. Treatment Records - He was admitted multiple times and was operated at different hospitals, he was initially treated at Ruby hall clinic, admitted on 4.10.2016 & discharged on 18.10.2016. fracture D6 with DAII (head injury) with scapular fracture with multiple Rib fracture with hemotorax was diagnosed & managed with ICD & medications later he was admitted at Neuro care Hospital Jaipur & than to Chirayu hospital Jaipur where left brachial plexus injury was diagnosed fracture humerus was operator with ORIF on 5.1.2017. Jain Hospital Jaipur pan brachial plexus injury left upper limb was operated with excision of deceased nerve & reconstruction with sural nerve graft on 29.5.2017 he was operated at SMS.M College Hospital Jaipur. Left brachial plexus injury with infected clavicle implant was operated with implant removal + superorey based local transposition flap.
Now he complaints of complete weakness of left upper limb. There is Complete absences of left shoulder, left elbow, left wrist and left hand movements, There is loss of sensation in left upper limb. He cannot do any work with left hand. doing daily Chores has become difficult. He has to depend on others for this. He cannot do driver job. Clinical Examination revealed- Gross wasting of left upper limb muscles. Power in all gropes of muscles in left upper limb is Zero i.e. 0/5 There is no active movements in left shoulder, left elbow, left wrist & left hand. All functions of left hand are lost. There is loss of sensation in left upper limb. Left upper limb has bone flial. There is left complete monoplegia of left upper limb.
Radiological Examination - MRI of left brachial plexus revealed high grade injury of left brachial plexus with -7- NC: 2025:KHC-K:2803 MFA No. 200468 of 2023 HC-KAR complete disruption of nerve fibers indicating high grade postganglionic neuropraxic injury. X-ray left arm shows malunited fracture left hunerus with implants in situ. Above disabilities are due to post Trauma effect. The person in a case of left upper limb complete monoplagia with Sensory relation to involvement and has permanent physical Impairment in relation to Mofor system disability Sever neurological involvement (i.e. complete left upper limb monoplagia = 75% Loss of sensation (Hypoartheria) = 05% Whole body PPI: 80% Note: In case of orthopedic physical disability, body is divided into 3 parts upper limp, lower limb, trunk, in principal function of one part cannot be replaced by other, therefore each part in itself is 100% and loss of function is also 100%. Whole body value is sum of 3 parts (sum it by combining formula) but total value should not exceed 100% in any case."
10. In cross examination indeed, an admission is elicited that he had not treated claimant. PW-2 has very clearly stated that he has verified treatment records and also examined claimant clinically and radiologically. He specifically deposed about claimant suffering from Monoplegia i.e. paralysis of one limb. Since, claimant is a driver by occupation and paralysis is sustained on left arm, he would not be able to -8- NC: 2025:KHC-K:2803 MFA No. 200468 of 2023 HC-KAR perform job of driver. Therefore, loss of earning capacity would be total, though assessment of permanent physical disability is to extent of 80%. Assessment of disability and its effect on earning capacity by Tribunal is totally contrary to principles enunciated by Hon'ble Supreme Court in case of Raj Kumar vs. Ajay Kumar and Another reported in (2011) 1 SCC 343. Therefore, substantial question of law would have to be answered partly in affirmative. Loss of earning has to be assessed at 100%. Computation of loss of earning would be as follows:
Rs.8,000/- x 60% x 211.79 x 100% = Rs.10,16,592/-
11. Apart from above, Rs.9,00,000/- awarded by Tribunal towards medical expenses is required to be added to compensation. Total compensation is Rs.19,16,592/-.
12. Consequently, following order:
ORDER i. Appeal is allowed in part.
ii. Claimant is held entitled for compensation of Rs.19,16,592/-.-9-
NC: 2025:KHC-K:2803 MFA No. 200468 of 2023 HC-KAR iii. Respondent-insurer is liable to pay same with interest at the rate of 12% p.a. from 04.10.2016.
Sd/-
(RAVI V HOSMANI) JUDGE NJ List No.: 1 Sl No.: 46 Ct;Vk