Bangalore District Court
T. Balakrishna Alias Thikka ... vs Lakshminarayana Kurra on 6 February, 2024
KABC020125432019
IN THE COURT OF XXI ADDL.SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 6th DAY OF FEBRUARY - 2024
PRESENT: Sri. Aalok. A.N
(B.B.A. LL.B),
XXI ADDL. SCJ & ACMM
MEMBER - MACT, BENGALURU.
ECA. No.63/2019
Petitioner : Sri. T. Balakrishna,
@ Thikka Balakrishna,
S/o Thikka Rama Moorthi,
Aged about 24 years,
Permanent resident of No.3-90,
Jammalapalle,
Voyalpadu Mandal,
Chittor District,
Andhra Pradesh.
Presently R/at : No.36,
Masjid Road,
K.R.Puram, Bengaluru-36.
(By Sri.T. V. Ramesh, Advocate)
v/s
Respondents : 1) Sri. Lakshminarayana Kurra,
S/o K. Venkataramana,
Major,
SCCH-23 2 ECA. No.63/2019
R/o. D.No.3-109,
Jammalapalle village,
Voyalpadu Mandal,
Chittor District,
Andhra Pradesh.
(Exparte)
2) The New India Ass. Co.Ltd,
Motor TP Hub,
Mahalakshmi Chambers,
No.9, 2nd Floor,
M.G.Road,
Bengaluru-560001.
(By Sri. Jagadeesh. G.S, Advocate)
JUDGMENT
This petition is filed under Section 22 of Employees Compensation Act seeking compensation together with interest thereon at the rate of 12% p.a., from the date of accident till the date of realization.
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioner that, the petitioner was working as driver under respondent No.1 in his lorry bearing Reg.No.AP-26-TB-4199. As per the instructions of the respondent No.1 on 22.06.2017 the the petitioner was transporting the cement load from Hujur Nagar, Telangana to Bengaluru City. On the way on 23.06.2017 at about 2.00 a.m, at Millampalli Toll Plaza,Yerragondapallem Mandal, Prakasham SCCH-23 3 ECA. No.63/2019 District, Andhra Pradesh, the said lorry faced mechanical defect, it was dashed against the stationary lorry bearing Reg.No.AP-04-TU-1951 and as a result of which the petitioner was injured severely. It is specifically contended that the petitioner is physically and functionally 100% disabled. As the accident took place during the course of employment, the respondents are jointly & severally liable to pay compensation. Hence prayed to award compensation.
3. Notice was duly served to respondent No.1, the respondent No.1 did not appear before this Tribunal. Hence he was placed exparte.
4. After service of notice, respondent No.2 spurred in rush to the Court by filing written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. The respondent No.2 admitting the issuance of insurance policy in respect of lorry bearing Reg.No.AP-26-TB-4199. However the liability if any is pleaded to be subject to the terms & conditions of the policy. The respondent No.1 has not complied with the provisions of Employees Act. Further this respondent No.1 urged that there is no jural relationship of employer and employee between the petitioner and respondent No.1. It is contended that the petitioner alone responsible for the accident as he was not diligence in driving and due to his negligence accident took place. Without prejudice to the said contention it is averred that the driver of the lorry / petitioner did not possess valid & SCCH-23 4 ECA. No.63/2019 effective DL as on the date of accident. Despite knowing the said fact the owner thereof had handed over its possession to such a driver. On account of willful breach of the terms & conditions of the policy by the insured, the insurance company is not liable to indemnify him. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
5. On the basis of the above pleadings the following issues were framed :
ISSUES
1) Whether the Petitioner proves that on the date of alleged incident i.e., on 23.6.2017 he was working as a Permanent driver under the 1st respondent in respect of his Lorry bearing Reg.No.AP-26-TB-4199 ?
2) Whether the Petitioner proves that while he was transporting cement load by driving the above said Lorry from Hujurnagar, Telangana state to Bengaluru city, on the way on23.6.2017 at about 2.00 a.m, at Millarnpalli Toll plaza, Yerragondapallem mandal, Prakasham district, Andhra Pradesh, due to the mechanical defect in the Lorry, he dashed against another stationary lorry bearing Reg.No.AP-04-TU-1951,due to which he sustained grievous injuries during the course of employment ?
3) Whether the petition is bad for non-compliance of Sec.10 of Employees Compensation Act 1923?
4) Whether this Court has territorial jurisdiction to try the petition?
5) Whether the Petitioner proves that he is entitled to the compensation amount claimed ? If so from whom and to what extent?
SCCH-23 5 ECA. No.63/20196) What Order?
6. The petitioner examined himself as PW.1. Ex's.P1 to 16 & 19 were marked on his behalf. Dr.Nagaraj. B.N,Orthopedic Surgeon at SOADS, Bengaluru was examined as PW.2. Ex's.P17 & 18 were marked through this witness. In order to prove the defence, the respondent No.2 got examined its Assistant Manager of respondent No.2 company as RW.1 and got marked Ex.R.1 to 6 documents.
7. Oral arguments were addressed on both sides. Perused the entire materials placed on record. My answers to the above issues are as follows :-
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : Partly in the Affirmative
Issue No.6 : As per final order
for the following :
REASONS
8. ISSUE NO.1 and 2 : Since these issues are interlinked with each other, and they form part of the same transaction they are taken up together for common discussion to avoid the repetition of facts.
SCCH-23 6 ECA. No.63/20199. The petitioner has knocked the doors of justice with a relief to grant a compensation for the injuries sustained during the course of employment. Before dwelling into analyzing the disputed facts in issue it is relevant to have the birds eye of the case of petitioner in a nutshell.
10. It is the case of petitioner that, the petitioner was working as driver under respondent No.1 in his lorry bearing Reg.No.AP-26-TB-4199. As per the instructions of the respondent No.1 on 22.06.2017 the the petitioner was transporting the cement load from Hujur Nagar, Telangana to Bengaluru City. On the way on 23.06.2017 at about 2.00 a.m, at Millampalli Toll Plaza,Yerragondapallem Mandal, Prakasham District, Andhra Pradesh, the said lorry faced mechanical defect, it was dashed against the stationary lorry bearing Reg.No.AP-04-TU-1951 and as a result of which the petitioner had injured severly. It is specifically contended that the petitioner is physically and functionally 100% disabled. As the accident took place during the course of employment, the respondents are jointly & severally liable to pay compensation. Hence prayed to award compensation.
11. In support of case of petitioner himself stepped into the witness box and filed his affidavit-in-lieu of oral examination-in-chief as PW1 and got marked Ex.P1 to Ex.P16 & 19 documents. Further more the petitioner also got examined the doctor who was assessed the disability is examined as PW.2 and through him Ex.P.17 & 18 were marked. In order to falsify SCCH-23 7 ECA. No.63/2019 the case of the petitioner and to substantiate the defense of the respondent no.2, their counsel had cross-examined PW1 & 2 at length.
12. Repelling to the contentions urged by the petitioner, the respondent No.2 had attacked the case of the petitioner on various prisms known to fact and law. The first and foremost contention urged by the respondent No.2 is that, this court has no territorial jurisdiction to entertain this petition and also urged that there is no employer and employee relationship between the petitioner and respondent No.1. Hence prayed to dismiss the petition. In support of these contentions the respondent No.2 got examined its Assistant Manager as RW.1 and through her Ex.R.1 to 6 were marked. In order to demolish the defence of the respondent No.2 and to substantiate the case of the petitioner, the petitioner's counsel has cross examined the RW.1 at length.
13. On dissection of materials placed on record, after marshaling of facts in issue and after hearing erudite counsel appearing for combating parties, this Tribunal opines that this issue is pregmented with inner issue such as :
1) Whether there is a jural relationship between the petitioner and respondent No.1 ?
14. With this prelude in the back drop let me unfurl each of the contentions urged by the combating parties and view the SCCH-23 8 ECA. No.63/2019 same in the beacon of light of settled principles of law. In all the police documents which are marked as Ex.P.1 & 2 and Ex.P.4 it reflects that the petitioner is the driver of the lorry in which the respondent No.1 is a owner. It is not in dispute that the petitioner was driving the lorry bearing Reg.no.AP-26-TB- 4199 transporting cement load had met with an accident and sustained grivious injuries which results in amputation of his legs. In Ex.P.4 chargesheet, cause title and police documents stated the name of petitioner as Thikka Bala Krishna the driver of the lorry bearing Reg.no.AP-26-TB-4199. Except petitioner there were none in the lorry on the illfated day of the accident. It is also relevant to note that, it is not the case of the petitioner somebody else was driving the lorry. Though PW.1 had cross examined at length by respondent No.2 counsel but nothing has been elicited to distrust the version of the petitioner that he was not a driver. All the police documents compared with evidence categorically reflects that the accident happened during the course of employment as driver. It is also relevant to note that, respondent No.1 is the owner of the lorry. When such is the case the petitioner is workmen u/s 2(1)(n). In this regard the petitioner has relied on the decision of the Hon'ble High Court of Kerala reported on 2021 ACJ 2117 in the case of Thankam and others V/s Sumithra and others wherein it was held that even a casual workmen is also entitled for compensation under ECA Act.
SCCH-23 9 ECA. No.63/201915. The evidence on record reveals that after the receipt of complaint lodged by one Mr. Balaji Manipati, the jurisdictional police conducted thorough investigation and filed chargesheet against the driver of lorry bearing Reg.No.AP-26-TB-4199 i.e., the petitioner herein for the offences punishable under section 337 of IPC. In this view of the matter the learned counsel for insurance company vociferously argued that as the claimant himself is the tortfeasor, he is not entitled for any compensation under the Employees Compensation Act. However the said contention is not sustainable in the light of the ratio laid down by the Hon'ble Apex Court in the decision reported in 2016 ACJ 721 wherein it was held that even if the employee himself is negligent it will not disentitle him from claiming compensation.
16. In fact there is nothing on record to disbelieve the contents of the said documents which were prepared by the police while discharging official duty. Though the respondent No.2 has denied the relationship of master and servant between the respondent No.1 and the claimant, but the said contention is neutralized by the petitioner by relying on the police documents. Mere taking of defence is not sufficient to dislodge the testimony of other side, which has no sanctity in the eyes of Law. Under such circumstances the evidence of PW.1 has to be accepted. Thereby holding that the petitioner sustained injuries during the course of his employment. I answer issues No.1 and 2 'In the Affirmative'..
SCCH-23 10 ECA. No.63/201917. ISSUE NO.3 : This issue is with regard regard to Section 10 of ECA Act. It is stoutly urged by the respondent No.2 is that the petition of the petitioner is bad for non- compliance of Section 10 of ECA. Section 10 of Employees Compensation Act reads as here under :
10. Notice and claim.-- (1)No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or in case of death within two years from the date of death:Provided that where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the employee was continuously absent from work in consequence of the disablement caused by the disease:Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the employee to absent himself from work, the period of two years shall be counted from the day the employee gives notice of the disablement to his employer:Provided further that if an employee who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected:Provided further that the SCCH-23 11 ECA. No.63/2019 want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim
(a)if the claim is preferred in respect of the death of a an employee resulting from an accident which occurred on the premises of the employer, or at any place where the employee at the time of the accident was working under the control of the employer or of any person employed by him, and the employee died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or
(b)if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured employee was employed had knowledge of the accident from any other source at or about the time when it occurred:Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause.
(2)Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed.
(3)The State Government may require that any prescribed class of employers shall maintain at their premises at which employees are employed a notice book, in the prescribed form, which shall be readily accessible at all SCCH-23 12 ECA. No.63/2019 reasonable times to any injured employee employed on the premises and to any person acting bona fide on his behalf.(4)A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-book is maintained, by entry in the notice-book.
On condign understanding of the above said provisions it reflects that notice has to be served before filing the claim petition. Further provision itself provides for an exception to the said rule. Proviso (a) refers that if the factum of accident is informed to the employer than, the notice is not mandatory. It is relevant to note that, Lorry bearing Reg.No.AP-26-TB-4199 is owned by respondent No.1 herein. The above said lorry had dashed from hind side i.e. to the lorry bearing Reg.No.AP-04- TU-1951 is also owned by respondent No.1. When such being the case the respondent No.1 has every knowledge about the accident. As such the non issuance of notice as contemplated u/s 10 of ECA Act will come under the purview of exceptional clause the above said. As such the petition is not bad in non- compliance of section 10 of ECA Act. Hence this court answer issue No.3 in the Affirmative.
18. ISSUE NO.4: It is specifically urged by the respondent No.2 that this court has no territorial jurisdiction as the accident happened at Andhra Pradesh, the respondent No.1 also hails from Andhra Pradesh and the petitioner also hails from Andhra Pradesh, as such this court is not having territorial jurisdiction to try this petition. Hence prayed to SCCH-23 13 ECA. No.63/2019 dismiss the petition. On the other hand it is stoutly argued by the petitioner that this court has every jurisdiction to try this petition as the petitioner is resident of Bengaluru.
19. This petition is filed u/s 22 of ECA Act 1923. Sec 21 of the said Act deals with the factum of territorial jurisdiction, the section reads as here under :
"21. Venue of proceedings and transfer.--4[(1) Where any matter is under this Act to be done by or before a Commissioner,the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before the Commissioner for the area in which-
(a) the accident took place which resulted in the injury; or
(b) the5[employee] or in case of his death, the dependant claiming the compensation ordinarily resides;
or(c) the employer has his registered office:
Provided that no matter shall be processed before or by a Commissioner, other than the Commissioner having jurisdiction over the area in which the accident took place, without his giving notice in the manner prescribed by the Central Government to the Commissioner having jurisdiction over the area and the State Government concerned:
Provided further that, where the 5[employee], being the master of a ship or a seaman or the captain or a member of the crew of an aircraft or a5[employee] in a motor vehicle or a company,meets with the accident outside India any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship, aircraft or motor vehicle SCCH-23 14 ECA. No.63/2019 resides or carries on business or the registered office of the company is situate, as the case may be.
(1A) If a Commissioner, other than the
Commissioner with whom any money has been
deposited under section 8, proceeds with a matter
under this Act, the former may for the proper disposal of the matter call for transfer of any records or money remaining with the latter and on receipt of such a request, he shall comply with the same.] (2) If a Commissioner is satisfied 6[that any matter arising out of any proceedings pending before him] can be more conveniently depth with by any other Commissioner, whether in the same State or not, he may, subject to rules made under this Act, order such matter to be transferred to such other Commissioner either for report or for disposal, and, if he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hands or invested by his for the benefit of any party to the proceedings:
1[Provided that the Commissioner shall not, where any party to the proceedings has appeared before him, make any order of transfer relating to the distribution among dependants of a lumpsum without giving such party an opportunity of being heard:]2***** (3) The Commissioner to whom any matter is so transferred shall, subject to rules made under this Act, inquire there into and,if the matter was transferred for report, return his report thereon or, if the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him.SCCH-23 15 ECA. No.63/2019
(4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-
section (2), the Commissioner by whom it, was referred shall decide the matter referred in conformity with such report.
3[(5) The State Government may transfer any matter from any Commissioner appointed by it to any other Commissioner appointed by it.] On condign understanding of the above said provision, the legislatures in the section have prescribed three aspects with regard to territorial jurisdiction for filing the petition under ECA Act.
20. Reverting back to the factual matrix it is shown in the cause title of the petition that, the petitioner is the resident of K.R.Puram, Bengaluru. In order to substantiate the said factum the petitioner has also produced the Ex.P.19 being the Election ID card. On careful perusal of the said Election ID card itself reflects that the place of petitioner is shown as K.R.Puram, Bengaluru. Much was stoutly urged by the respondent by relying on Ex.R.6(a) being RPAD cover, wherein the endorsement as insufficient address shown. The mere endorsement given the postal authority will not take away the evidentiary value of Election ID card. When such is the case the contentions urged by the respondent No.2 is not tenable in the eye of law.
21. The respondent No.2 counsel in order to substantiate his claim has relied on the decision of Hon'ble High Court of SCCH-23 16 ECA. No.63/2019 Karnataka reported in 2012 ACJ 2008 in the case of New India Assurance Co.Ltd v/s A.Narayanappa and another, wherein the Hon'ble High Court having regard to the facts of that case had held that there is no territorial jurisdiction. But having regard to the facts of instant case on hand this court is every jurisdiction to try this petition. As such the principles laid down therein cannot be made applicable in the case on hand.
22. On the similar set of facts the petitioner has relied on decision of High Court of Delhi reported in 2022 ACJ 2497, in the case of Faim V/s Commissioner, Emplyoyess's Compensation and others wherein it was held as here under :
The ground on which the learned Commissioner has sought to distinguish the decision in Malati Sardar1 does not commend itself to acceptance. The provision for compensation in Section 166(2) of the Motor Vehicles Act and the provisions in Section 22 of the EC Act are similar with respect to the factors on the basis of which territorial jurisdiction would be determined. The situs of the insurance company has not been treated as one of the relevant factors for determining territorial jurisdiction, under either of these legislations. Nonetheless, the Supreme Court, keeping in view the avowed objective, and the beneficial nature, of the EC Act, as a piece of a social welfare legislation, also held the Court/Commissioner within whose territorial jurisdiction the insurance company has a registered and business office to be competent to adjudicate on the claim SCCH-23 17 ECA. No.63/2019 of the injured workman. The principles laid down therein squarely applicable to the case on hand. This court is every jurisdiction to try this petition. Hence this court answers Issue.No.4 in the Affirmative as this court is having territorial jurisdiction to try this case.
23. ISSUE NO.5 : This issues revolves round the sphere and ambit as to the quantum of compensation. The petitioner has got exhibited his Driving Licence at Ex.P10 wherein his date of birth of the petitioner is reflected as 05.04.1995. This indicates that he was aged 22 years on the date of accident.
24. The petitioner has deposed that prior to the accident he was working as a driver under the respondent No.1 in his lorry and getting monthly salary of Rs.12,000/- and daily bata of Rs.100/-. However no documents have been produced to establish his avocation and income. Hence reliance is placed on the Gazette Notification dated 31.05.2010 issued by the Ministry of Labour and Employment which reads as under :
'S.O.1258 (E). - In exercise of the powers conferred by sub-section (1B) of section 4 of the Employee's Compensation Act, 1923 (8 of 1923), the Central Government hereby, specifies for the purpose of sub-section (1) of the said section, the following amount as monthly wages, with effect from the date of SCCH-23 18 ECA. No.63/2019 publication of this notification in the Official Gazette, namely :-
"Eight thousand rupees"
25. As per the medical records petitioner has sustained the following injuries : (i) Sutured laceration over (4x1 cm) forehead (ii) Sutured laceration over (3x1 cm) over right ASIS
(iii) Laceration of 1x1 cm over left heel (iv) Ruptured urethra (v) Pelvis Fracture and (vi) Right femoral artery vascular injury. It is needless to say that the said injuries are grievous in nature. The Discharge summaries issued by Helios Hospital, Tirupathi and Purnas Remedy Hospital, Chittor indicate that the petitioner was treated as an inpatient in the said hospitals for the period from 23.06.2017 to 29.07.2017 and 16.11.2017 to 21.11.2017 (13 days in total). During the course of treatment he had undergone surgeries in the form of : (i) SPC was done on 23.06.2017 (ii) Exploration of right femoral artery and Thrombectomy was done under GA on 24.06.2017 (iii) Above knee amputation was done on 24.06.2017 (vi) Debridement and stump closure was done on 17.07.2017 and Single stage urethroplasty for stricture urethra.
26. It is the specific case of the petitioner that, owing to the accidental injuries he become 100% disability and has thereby lost his entire earning capacity. Therefore he got examined Dr.Nagaraj. B.N as PW.2 he stated that on clinical examination conducted by him, he found that petitioner has SCCH-23 19 ECA. No.63/2019 sustained whole body disability at 85%. On careful perusal of the chief- examination it reflects that the petitioner has sustained following injuries: Polytrauma with bilateral superior and inferior pubic rami fracture, right acetabulum fracture with foot drop, rupture urethra, right femoral artery injury, acute kidney injury, bilateral pleural effusion. Further it could be culled out from chief examination the above knee amputation of the right lower limb stump measuring 8 inches. Which means to say that the petitioner has amputed his legs. It is stoutly urged by the petitioner counsel that the petitioner has amputed with right leg as such it resulted in physical disability to continue his vocation as a driver. It could be ascertained by the petition averments that petitioner is a driver by profession. The workmen lost his abilityh to work as a driver as he would be disqualified from even getting driving licence. In this regard the petitioner counsel has relied on a decision of Hon'ble Apex Court reported in 2020 ACJ 704 in the case of C.N. Muchalagodas V/s New India Assurance Co.Ltd. In the above cited decision the Hon'ble Apex Court by relying on the Raj Kumar V/s Ajay Kumar reported in 2011 ACJ 1 (SC) wherein it is held that :
"10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the SCCH-23 20 ECA. No.63/2019 permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any SCCH-23 21 ECA. No.63/2019 need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. (Emphasis supplied) SCCH-23 22 ECA. No.63/2019
27. Further on the same point of law, petitioners relied on the decision reported in :
10. In K. Janardhan v. United India Insurance Co. Ltd., 2008 ACJ 2039 (SC), this court examined the loss of earning capacity in the case of a tanker driver who had met with an accident and lost one of his legs due to amputation. The Commissioner for Workmen's Compensation assessed the functional disability of the tanker driver as 100 percent and awarded compensation on that basis. The High Court, however, referred to Schedule I to the Workmen's Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60 percent of earning capacity. This court set side P P SALGAONKAR 9 of 12 5 FA 53-08.doc the judgment of the High Court and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100 percent.
Anyhow, the point that merits consideration is that it is the loss of earning capacity which would be the operative criteria for assessing the compensation. In the instant case on hand the petitioner being a driver was amputed his right leg when such being the case he cannot continue his profession as a driver. As such there is an 100% loss of earning capacity.
28. The injuries sustained by the petitioner is specified in Schedule I of the Act. Further as per Section 4(1)(b) of Employee's Compensation Act, in case of where permanent total disablement results from the injury the amount of compensation payable shall be an amount equal to sixty SCCH-23 23 ECA. No.63/2019 percent of the monthly wages of the employee multiplied by the relevant factor or an amount of one lakh and forty thousand rupees, whichever is more. 60% of Rs.8,000/- works out to Rs.4,800/-. Relevant factor is 219.95. Hence, compensation payable to the petitioner would be Rs.10,55,760/- (4,800 x 219.95)
29. MEDICAL EXPENSES : As per the bills marked at Ex.P12, the petitioner has spent Rs.5,55,887/- towards medical expenses. Nothing worthwhile was elicited during the course of her cross-examination, so as to doubt the genuineness of these bills. Hence the petitioner is entitled for Rs.5,55,887/- which is rounded off to Rs.5,56,000/- towards medical expenses.
30. FUTURE MEDICAL EXPENSES: The doctor witness stated that the petitioner has to undergo one more surgery for removal of implants for which he may require Rs.60,000/-. No estimation is produced to show the future medical expenses. But undisputedly petitioner has to undergo surgery for removal of implants, for which he has to necessarily bear certain expenses. Thus he is entitled to Rs.20,000/- towards future medical and other incidental expenses.
31. The calculation table stands as follows :
1 Compensation for loss of : 10,55,760-00 earning capacity 2 Medical expenses : 5,56,000-00 3 Future medical expenses : 20,000-00 Total 16,31,760-00 SCCH-23 24 ECA. No.63/2019
32. INTEREST & LIABILITY : Relying upon the ratio laid down by the Hon'ble Apex Court in the decision reported in AIR 2014 SUPREME COURT 1393 (Saberabibi Yakubbhai Saikh vs. National insurance Co Ltd., and others), I hold that the petitioner is entitled for interest at the rate of 12% p.a., from the date of incident i.e., 23.06.2017 till the date of realization.
33. The respondents are jointly and severally liable to pay the aforesaid award amount to the petitioner together with interest @ 12% p.a., from the date of the incident till realization of the entire amount. However the respondent No.2 being the insurer is primarily liable to satisfy the award amount together with interest within one month from the date of this order. Hence this issue is answered as 'Partly in the Affirmative'.
34. ISSUE NO.4: In view of the discussion made supra, this Tribunal proceeds to pass the following :
ORDER The petition filed u/s. 22 of Employees Compensation Act, 1923 is hereby partly allowed with costs in the following terms :
The petitioner is entitled for compensation of Rs.16,31,760/- with interest at the rate of 12% p.a., (excluding future medical expenses) from the date of incident till its realization.SCCH-23 25 ECA. No.63/2019
Respondent No.2 is directed to deposit the aforesaid award amount together with interest within one month from the date of this order.
Out of the above said compensation amount awarded to the petitioner, 80% of the award amount with accrued interest shall be paid to him through NEFT/RTGS by way of E-payment on proper identification and due verification and further 20% of the award amount shall be kept in FD in favour of petitioner in any Nationalized or Scheduled bank for a period of 3 years.
Advocate fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 6th day of February - 2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Court of Small causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S :
PW.1 : Sri. T. Balakrishna @ Thikka Balakrishna
PW.2 : Dr.Nagaraj. B.N
SCCH-23 26 ECA. No.63/2019
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PETITIONER/S :
ExP1 : True copy of FIR
ExP2 : True copy of Complaint
ExP2(a) : Translated copy of the complaint ExP3 : True copy of wound certificate ExP4 : True copy of chargesheet ExP5 : 2-Discharge summaries ExP6 : CT Scan reports ExP7 : Emergency certificate ExP8 : 39-Lab reports ExP9 : Notarized copy of disability certificate ExP10 : Notarized copy of DL ExP11 : 5-OPD Sheets ExP12 : Inpatient bills for Rs.5,55,887/- along with detailed bills ExP13 : 3-Photographs along with 1-CD to 16 ExP17 : Clinical note ExP18 : X-ray ExP19 : Notarized copy of the Election ID card of petitioner LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT/S :
RW.1 : Vanikala
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
RESPONDENT/S :
Ex.R1 Authorization letter
Ex.R2 True copy of Insurance policy
Ex.R3 Office copy of Letter dated 11-07-2019 which was
given to respondent No.1
SCCH-23 27 ECA. No.63/2019
Ex.R4 Acknowledgment due card of service of Ex.R3 letter to
respondent No.1
Ex.R5 Letter issued to petitioner
Ex.R6 Ex.R5 letter returned unserved. The RPAD cover is
opened and compared with Ex.R5 found correct and letter is marked as R6(a) (Aalok. A.N) XXI Addl. Small Causes Judge & ACMM, Court of Small causes, Bengaluru.