Bangalore District Court
Sri.Suresh vs Sri.Suresh K.T on 31 October, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this the 31st Day of October 2017
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
E.C.A. No. 117/2015
PETITIONERS:
Sri.Suresh
S/o Sri.Bhemanna
Age 19 years, Occ: Mason,
R/o No.12, Maruthinagara,
Chikkabanavara,
Bengaluru-560 090.
(By Sri. Suresh.M.Latur Adv.)
-VS-
RESPONDENTS:
1. Sri.Suresh K.T,
S/o.Sri.Thammaiah,
R/o No.92/8, 4th Cross,
SRS Road, Peenya 1st Stage,
Bengaluru-560 058.
(Owner of Building)
2. Sri. Bhemanna
S/o Sri.Basappa,
2 E.C.A. No. 117//2015
SCCH-7
R/o Near Chowdeshari Temple,
Kereguddadahalli,
Chikkabanavara Post,
Bengaluru.
(Contractor of the Building)
(R1 and R2 Exparte)
JUDGMENT
The Petitioner has filed the present petition as against the Respondents No.1 and 2 under Section 22 of the Workmen's Compensation Act, 1923, praying to grant compensation of Rupees 20,26,980/- with interest at the rate of 12% per annum and costs.
2. The Brief facts of the petitioner's case is that: He was working as a Mason with Respondent No.2 on a salary of Rupees 15,000/- per month. Respondent No.2 who is a Contractor, took newly construction work of a building which belongs to Respondent No.1 situated near Chowdeshwari Temple, Kereguddadahalli, Chikkabanavara Post. Petitioner stated that, he was working as a Mason and was employed by Respondent No.2 on a salary of Rupees 15,000/- per month. On 12.06.2015 at about 3.00 p.m. when he was working on the 2nd floor by standing on the wooden bamboos, the wooden bamboo broke and he fell down on the ground. As a result, he sustained anterior wedge compression fracture Defendant-12 vertebrae, disc space reduced at L4-L5 vertebrae and other 3 E.C.A. No. 117//2015 SCCH-7 grievous injuries all over the body and immediately he was taken to Dhanvantri Hospital, Bengaluru, later admitted to Bowring Hospital, Bengaluru. Petitioner stated that, he has spent Rupees 20,000/- towards his medical expenses. Peenya Police have registered case in Crime No.521/2015 for the offences punishable under Section 338 read with section 34 of IPC. Petitioner stated that at the time of accident, he was aged about 19 years and hale and healthy and earning Rupees 15,000/- per month by working as a Mason. Now he has become completely disabled and unable to earn his livelihood and fully dependent upon others for his routine activities and livelihood. The accident had taken place during the course and under the employment of Respondent No. 1 and 2. He had requested Respondent No.1 and 2 to pay compensation under Employees Compensation Act, however they have not considered his request. Petitioner stated that Respondent No.1 is the principle employer and Respondent No.2 is the immediate employer. As per Section 12 of Employee Compensation Act, both Respondents are jointly and severally liable to pay compensation. Petitioner stated that after the accident, he has become fully disabled and unable to work as a Mason or to do any other manual work and he lost total earning capacity. Under the circumstances, the petitioner prayed to allow the petition.
3. Inspite of service of notice, the Respondents have not appeared before the court, hence they placed exparte.
4 E.C.A. No. 117//2015SCCH-7
4. Based on the above said pleadings, I have framed the following Points;
POINTS
1. Whether the Petitioner proves that, he was an employee under the Respondent No.1 and 2 as on the date of accident?
2. Whether the Petitioner proves that he sustained grievous injuries during the course of employment?
3. Whether the Petitioner is entitled for compensation? If so, to what extent and from whom?
4. What Order or Award?
5. In order to prove his case, the Petitioner himself has been examined as P.W.1 and got marked 11 documents as per Ex.P.1 to Ex.P.11. In support of petitioner's case Dr.S.A.Somashekar got examined as P.W.2 and got marked two documents as per Ex.P.12 and Ex.P.13.
6. Heard the arguments. The counsel for Petitioner relied on judgment passed in MFA No.2855/2006 (WC), Civil Appeal No.9263/2017 and 2016 AAC 1620 (KAR). This court taken note of ratios laid down in these citations.
7. My answers to the above said Issues are as follows;
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Point No.1 : Partly in the Affirmative,
Point No.2 : In the Affirmative,
Point No.3 : Partly in the Affirmative,
Point No.4 : As per the final Order,
for the following;
REASONS
8. POINTS NO.1 AND 2 :- P.W.1 stated that he was
working as a Mason under the Respondent No.2 for salary of Rupees 15,000/- per month. On 12.06.2015 the construction of new building belonging to Respondent No.1 was going on near Chowdeshwari Temple, Kereguddadahalli, Chikkabanavara Post and Respondent No.2 is a contractor of said building. P.W.1 stated that, he was working on 2rd floor by standing on the wooden bamboos and 3.00 p.m., wooden bamboo broke and he fell down on the ground. P.W.1 stated that as a result, he sustained anterior wedge compression fracture D-12 vertebrae, disc space reduced at L4-L5 vertebrae and other grievous injuries all over the body. P.W.1 stated that immediately he was shifted to Dhanvantri Hospital, Bengaluru and later he was admitted to Bowring Hospital, Bengaluru. P.W.2 stated that, he sustained injuries during the course of employment.
9. In this case in order to prove his assertion P.W.1 has produced Ex.P.1 FIR, Ex.P.2 Complaint, Ex.P.3- Statement 6 E.C.A. No. 117//2015 SCCH-7 recorded by Police, Ex.P.4 Charge Sheet, Ex.P.5 Spot Mahazar, Ex.P.6 Wound Certificate, Ex.P.7 Certificate issued by Dhanvantri Hospital and Ex.P.8 OPD Card issued by Bowring and Lady Curzon Hospital. In this case inspite of service of notice, Respondents No.1 and 2 have not appeared before the court. On going through Ex.P.1 and Ex.P.2 it is noticed that based on the complaint lodged by father of Petitioner on 16.06.2015, Peenya Police have registered crime No.521/2015 for the offence punishable under Section 338 read with section of IPC against Respondents No.1 and 2. Ex.P.5 reveals that the mishap took place at newly constructing building at SLN Enclave, 1st Cross, No.36, 3rd floor, Nelagadaranahalli. Further Ex.P.6 Wound Certificate it is stated that, Petitioner sustained anterior wedge compression fracture D-12 vertebrae, disc space reduced at L4-L5 vertebrae due to fall from 3rd floor at SLN Enclave. Further Ex.P.4 Charge Sheet reveals that after the investigation, Peenya Police have filed Charge Sheet against the Respondents for the offence punishable under Section 338 R/w Section 34 of IPC. Ex.P.8 OPD Card reveals that immediately the Petitioner has taken treatment as Outpatient at Bowring and Lady Curzon Hospital and he has taken conservative treatment. The Spot Mahazar, Wound Certificate and Charge Sheet reveals that petitioner sustained injuries during course of employment. Petitioner stated that, Respondent No.1 is his principal employer and Respondent No.2 is immediate employer, hence both are jointly and severally liable to pay compensation. It is to be noted that, 7 E.C.A. No. 117//2015 SCCH-7 in the petition itself petitioner stated that, he was working as a mason with respondent No.2. Admittedly Respondent No.1 is owner of building and Respondent No.2 is the contractor of building. Hence only on the ground that, Charge Sheet has been filed against Respondents it cannot be considered that, petitioner is employee of Respondents No.1 and 2. As per the case of petitioner he was working as mason with respondent No.2, hence he is the employee of Respondent No.2 and not an employee of Respondent No.1 who is the owner of building who has given building construction contract to Respondent No.2. As already discussed, the documents on record reveals, that the Petitioner sustained injuries during the course of employment. Accordingly, I answered Point No.1 partly in the Affirmative and Point No.2 in the Affirmative.
10. POINT NO. 3 :- The Petitioner claimed compensation of Rupees 20,26,980/-. Petitioner stated that, he sustained grievous injuries to spine and other parts of the body. Petitioner stated that, he has taken treatment at Dhavanthari Hospital, thereafter he was taken treatment at Bowring and Lady Curzon Hospital. In this case Petitioner has produced Ex.P.6 Wound Certificate which reveals that in the said accident Petitioner sustained anterior wedge compression fracture D-12 vertebrae, disc space reduced at L4-L5 vertebrae. In Ex.P.7 Certificate issued by Dhanvantri Hospital there is no date or details of treatment given to the Petitioner. However ongoing through Ex.P.8 OPD Card issued by Bowring and Lady Curzon Hospital 8 E.C.A. No. 117//2015 SCCH-7 it is noticed that the Petitioner has taken conservative treatment in the said Hospital. P.W.2 Doctor deposed that the Petitioner has sustained anterior wedge compression fracture D12 L45 space reduced with canal narrowing. P.W.2 stated that Petitioner was treated conservatively. P.W.2 stated that he has examined the Petitioner on 11.08.2017 to assess disability. P.W.2 s assessed disability of spine 32% and to the whole body at 16%. P.W.2 has produced Ex.P.12 OPD Slip and Ex.P.13 X- ray Film. Further in this case Petitioner has produced Ex.P.9 Prescriptions, Ex.P.10 Medical Bills to the tune of Rupees 3,186/- and Ex.P.11 Voter Identity Card. As per the evidence of Doctor, Petitioner was treated conservatively. The Doctor opined permanent disability of spine at 32% and to the whole body at 16%. The Doctor has not stated functional disability to the Petitioner. The Doctor has not issued disability certificate to the Petitioner. As per the petition averments the Petitioner was working as mason. The injuries caused to him will not cause total disablement to him or effect his future life completely and he can do same other work. Hence as per Section 4(1) (b) of Employees compensation Act, Petitioner is entitled for an amount to 60% of monthly wages multiplied by the relevant factor. The incident was taken place on 12.06.2015. As per Ex.P.6 Wound Certificate, as on the date of accident, the age of Petitioner is 21 years. As per Schedule IV of Employees compensation Act, the factor applicable to the injured person who is aged 21 years, is 222.71.
9 E.C.A. No. 117//2015SCCH-7
11. Though the Petitioner stated that he was getting salary of Rupees 15,000/- p.m., he has not produced any documents to show on his income. Considering the fact that now a days, even a Coolie can earn Rupees 300/- per day, I am of the opinion that, it is just and proper to consider the income of Petitioner as Rupees 9,000/- p.m. As per the schedule, compensation amount is equal of 60% of monthly wages multiplied by relevant factor. As already stated Petitioner can do some other work, other than the work which he was doing earlier to the accident and his earning capacity is not totally lost. By considering the evidence on record the court is of the opinion that, minimum of 40% of his working capacity is lost. Hence the Petitioner is entitled for compensation of Rupees 5,400/- X 222.71 X 40/100 = Rupees 4,81,053-60, which is rounded off to Rupees 4,81,100/-.
12. Further the Petitioner has produced Ex.P.9 - 3 prescriptions and Ex.P.10 - 8 Medical Bills to the tune of Rupees 3,186/-. As per Section 4(2A) of Employees compensation Act, Employee shall reimbursed with actual medical expenditure incurred by him for treatment obtained to the injuries caused during the course of employment. Hence the Petitioner is entitled for medical expenses to the tune of Rupees 3,186/-, which is rounded off to Rupees 3,200/- and Rupees 5,000/- towards conveyance and special diet. In total the Petitioner is entitled for compensation of Rupees 4,89,300/-.
10 E.C.A. No. 117//2015SCCH-7 It has been held in 2004 ACJ 1581 that "the injured employees or the deceased is entitled for interest at the rate of 12% p.a., from the expiry of one month from the date of injury or death till the date of its deposit". As such, the Petitioner is entitled for interest at the rate of 12% p.a., on the compensation amount due from the date of expiry of one month from the date of accident, till the date of deposit. In this case Petitioner has proved that he sustained injuries during the course of his employment under the Respondent No.2. The Respondent No.2 being the contractor is liable to pay compensation to the Petitioner and petition against the Respondent No.1 is to be dismissed. Accordingly, Point No.3 answered partly in the Affirmative.
13. POINT NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioner under Section 22 of the Workman Compensation Act, 1923, is hereby partly allowed with costs.
The Petitioner is entitled for compensation of Rupees 4,89,300/- with interest at the rate of 12% p.a. from expiry of one month from the date of accident till its realization.
11 E.C.A. No. 117//2015SCCH-7 Petition against Respondent No.1 is hereby dismissed.
The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within two months from the date of this Order.
Out of entire compensation amount, 70% is ordered to be released in his favour by issuing account payee cheque with proper identification and remaining 30% is ordered to be kept in FD in any nationalized bank for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 31st day of October, 2017.) (S.SUJATHA) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITIONER :-
P.W.1 : Suresh
P.W.2 : Dr. S.A.Somashekar
12 E.C.A. No. 117//2015
SCCH-7
2. DOCUMENTS MARKED BY THE PETITIONER :-
Ex.P.1 : FIR
Ex.P.2 : Complaint
Ex.P.3 : Statement of Petitioner
Ex.P.4 : Charge Sheet
Ex.P.5 : Spot Mahazar
Ex.P.6 : Wound Certificate
Ex.P.7 : Certificate issued by Dhanavantri
Hospital
Ex.P.8 : OPD Card issued by Bowring and Lady
Curzon Hospital
Ex.P.9 : Prescriptions ( 3 in nos)
Ex.P.10 : Medical Bills (8 in nos)
Ex.P.11 : Notarized Xerox Copy of Voter ID of
Petitioner
Ex.P.12 : OPD Slip
Ex.P.13 : X- ray Film
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
-NIL-
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
-NIL-
(S.Sujatha) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.