Karnataka High Court
The New India Assurance Company Limited vs Mr.Mohiddin Sab S/O Shafi Sab on 24 October, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO. 3457/2009 (WC)
BETWEEN:
The New India Assurance Company Limited,
Davanagere DO.
Through its Regional Office,
No.-2-B, Unity Building Annexe,
Dr.Kalinga Rao Road,
Bangalore-560 027
Rep. by its Deputy Manager,
Sri. C.R.Subramanya. ... Appellant
(By Sri.Lakshminarasappa, Advocate for
Sri.B.C.Seetharama Rao, Advocates, Associates)
AND:
1. Mr.Mohiddin Sab,
S/o Shafi Sab,
Aged about 28 years
R/o 2nd Main, 14th Cross,
KTJ Nagar, Davanagere.
2. Ibrahim Sab,
Major
S/o Raja Sab
R/o 4th Cross, 2nd Main,
KTJ Nagar, Davanagere
2
(Owner of Auto Bearing
No.KA-21-5206) ... Respondents
(By Sri.Mahesh R Uppin, Advocate for R-1;
Notice to R-2 dispensed with V/o Dated
01.04.2013)
This Appeal is filed Under Section 30(1) of the
WCA praying to set aside the order dated 27.02.2009 in
case No.WCA:CWC:CR:12/2008 on the file of the
Labour Officer and Workmens' Compensation
Commissioner, Davanagere District, Davanagere.
This Appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
Though this appeal has been admitted on 09.04.2013. Records would indicate that substantial question of law has not been formulated by this Court. In that view of the matter, I am of the considered view that same requires to be formulated.
2. I have heard the arguments of Sri Lakshmi Narasappa, learned Advocate appearing on behalf of Sri B C Seetharama Rao, for appellant and Sri.Mahesh R Uppin, learned counsel appearing for respondent. After 3 hearing the arguments of learned Advocates appearing for parties and on perusal of records secured from jurisdictional Commissioner for Workmen's compensation, I am of the considered view that following substantial question of law would arise for my consideration in this appeal:
"Whether Commissioner was justified in assessing loss of earning capacity of first respondent-workman at 45% based on the evidence of P.W.2 who had not treated the injured person and conducted the surgery?"
3. It is the contention of Sri Lakshmi Narasappa, learned Advocate appearing for appellant that Commissioner erred in not noticing that first respondent-workman had continued to drive the autorickshaw without surrendering his driving licence even after the accident and there being only one fracture, assessment of loss of earning capacity at 45% as opined by the Doctor is perverse and contrary to medical records and hence he submits that order and award be suitably modified.
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4. Per contra Sri. Mahesh R. Uppin would support the order under challenge and prays for dismissal of the appeal.
5. First respondent herein filed a claim petition seeking compensation contending interalia that he was working as a driver of an autorickshaw bearing registration No. KA-21-5206 under employment of respondent No.2 and on 14.08.2007 at about 11.55 p.m., said vehicle met with an accident on account of another vehicle having dashed against autorickshaw driven by him. It was contended by first respondent that he is an employee-workman under second respondent herein and accident in question occurred in the course of employment and injuries sustained by the workman arose out of the employment with second respondent. Hence, on this background, workman sought for compensation. It was also contended that he was getting a salary of Rs.4,000/- per month as on date of accident.
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6. Insurer appeared and contested the matter by filing detailed statement of objections contending that there is no disability suffered by the workman and income of Rs.4,000/- per month earned by workman was denied. In support of his claim, workman got himself examined and also examined one Dr. G.C Basavaraj as P.W.2. The Commissioner for Workmen's Compensation, Davanagere on the basis of pleadings of parties and on evaluation of evidence available on record, awarded compensation of Rs.2,30,655/- to the workman and held insurer would be liable to pay the said amount within 30 days from the date of award failing which, workman would be entitled to interest @ 12% p.a. Being aggrieved of said order and award, insurer has filed this appeal.
7. Since there is no dispute with regard to the accident and issuance of policy to the offending vehicle, these aspects are not delved upon in this appeal as it would be repetition of facts.
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8. The only issue would be whether Commissioner was justified in arriving at a conclusion that 'loss of earning capacity' of the workman was 45% and awarding compensation of Rs.2,30,655/- by construing the wages of the workman at Rs.4,000/- per month. Perusal of the records would indicate that on service of notice, insurer alone appeared and contested the matter. Owner of the offending vehicle namely, employer of the workman did not chose to contest the matter. Relationship of 'employer' and 'employee' was held to be proved before jurisdictional Commissioner by answering issue No.1 in the affirmative.
9. For computation of compensation payable under the Workmen's Compensation Act, 1923 Commissioner had formulated issue No.3 and answered the same by accepting the evidence of the doctor namely, disability suffered by the workman is to an extent of 45% and as such, there is loss of earning capacity to said extent.
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10. While awarding compensation under the Workmen's compensation Act, 1923 "loss of earning capacity" would be determined with reference to injuries sustained by the workman and same would be the yardstick. It would be appropriate to note the relevant statutory provision which governs the said issue namely, Section 4(1)(c)(ii) and it reads as under:
"4.Amount of compensation:
(1)(c):Where permanent partial disablement result from the injury ---
(i) xxx
(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;
Explanation I. - Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. 8
Explanation II. - In the assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;"
It is within these four corners Commissioner has to examine as to whether injuries caused and consequential disability sustained by the workman has resulted in "loss of earning capacity" to some extent or more or less and if so, to what extent?
11. In this background, when the evidence of the doctor who was examined on behalf of the workman is scrutinised, it would indicate that in the road traffic accident, first respondent sustained "traumatic fracture upper 3rd of right femur". He was operated by fixation of K nail on 18.08.2007. He was an inpatient at C.G.Hospital, Davanagere from 14.08.2007 to 29.08.2007 as seen from the discharge summary - 9 Ex.P-6. A perusal of the same would also indicate the diagnosis as under:
"simple traumatic fracture Upper 3rd right femur without distal neurovascular deficit."
The Doctor who has been examined on behalf of the workman admittedly is not the doctor who treated the workman at C.G.Hospital. He is also not the Doctor who has given any follow up treatment to the workman. Perusal of his evidence indicate that he had perused the records of C.G Hospital, Davanagere and has opined as under:
"After the careful examination of patient clinically and radiologically and also observation of medical records, I am of the opinion the patient has got 45% of permanent physical disablement.
12. As noticed herein above, under Section 4(1)(c)(ii) of the Act, Doctor is required to assess the permanent disability caused on account of said injury and also proportionate loss of earning capacity. Perusal of the affidavit filed in lieu of examination-in-chief of the 10 doctor, does not indicate that he had undertaken any such exercise namely, he has not ascertained as to whether 45% disablement that has been caused would also result in 45% of loss of earning capacity to the workman. Doctor has not opined as to whether fracture is malunited or united. Evidence is silent on this aspect. Neither wound certificate nor discharge summary - Ex.P-6 indicate that workman had sustained any injury to either hip or right knee as claimed. No reasons have been assigned by the workman as to why he has not examined the doctor who had treated him at C.G. Hospital, Davanagere which is a Government hospital and no steps have been taken to summon the said doctor or to summon the inpatient case history sheet of C.G. Hospital which would have thrown better light to ascertain his disability and also proportionate loss of earning capacity. In the absence of said evidence, one and only conclusion which can be drawn is the version of P.W.2 is exaggerated and also in the absence of his statement as to whether fracture sustained by the 11 workman is united or not. Hence, doctors evidence will have to be examined with utmost care and circumspection. When so scrutinized, it has to be held that permanent physical disablement that has been caused to the workman and the loss of earning capacity cannot exceed 25% and not 45% as opined by the doctor, inasmuch as, if disability of 45% is construed as permanent physical disability to the particular limb, whole body disability will have to be necessarily 1/3rd of it, namely 15%, as per ALMANCO manual. In that view of the matter, I am of the considered view that Commissioner committed a serious error in accepting 45% permanent physical disability as proportionate loss of earning capacity to the whole body. Accordingly, substantial question of law formulated herein above is answered in favour of the appellant-insurer partly and it is held that Commissioner was in error in construing loss of earning capacity at 45% instead of 15%. 12
13. In view of the finding recorded herein above permanent physical disability can be construed at 15% as whole body disability which would result in proportionate loss of earning to the workman to the said extent. In that view of the matter, compensation as assessed by the Commissioner requires to be re- computed as under and other aspects i.e., income, age and relevant factor remains unaltered. Rs.2,400 x 213.57 x 15% = Rs. 76885.20
14. Commissioner has committed an error in awarding interest at the rate of 12% p.a. payable after expiry of one month from the date of order and award, inasmuch as, law laid down by the Hon'ble Apex Court on this issue being clear, in the case of ORIENTAL INSURANCE CO.LTD vs SIBY GEORGE reported in 2012 ACJ 2126, to that extent also, order and award passed by Commissioner requires to be modified. 13
15. For the reasons aforestated, following order is passed:
(1) Appeal is hereby allowed in part.
(2) Order and award passed by
Commissioner for Workmen's
Compensation, Davanagere in No.
WCA/ CWC/CR/12/2008 dated
27.02.2009 is hereby modified and it is held that first respondent-workman would be entitled to compensation of Rs. 76,885.20 with interest @ 12% p.a. payable after 30 days from the date of accident till the date of payment or deposit whichever is earlier.
(3) Registry is directed to issue cheque to the first respondent-workman on proper identification to the extent of his entitlement as ordered herein above and balance amount is ordered to be 14 refunded to the appellant-insurer on proper identification.
(4) No costs.
In view of the appeal having been disposed of, application for stay do not survive for consideration and accordingly, it is dismissed.
Sd/-
JUDGE *sp