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2001 DIGILAW 183 (KAR)

S. KUMARASWAMY v. RAMU

2001-02-23

CHIDANANDA ULLAL

body2001
ULLAL, J. ( 1 ) THIS appeal is preferred by the owner and the insurance company to challenge the award dated 18. 3. 1997 in case No. WCA 23 of 1993 passed by the workmen's Compensation Commissioner, Mysore District, Mysore. In passing the said award, the said Workmen's Compensation Commissioner awarded a sum of Rs. 97,320 payable by the appellants herein to the respondent-claimant together with interest at 6 per cent and further penalty of Rs. 20,000 payable by the appellant No. 1, owner. ( 2 ) THE learned counsel appearing for the appellant, Mr. S. P. Shankar had taken me through the impugned award passed by the Workmen's Compensation Commissioner, Mysore District, Mysore, henceforth in brief referred to as 'the WCC'. It was argued by him that though the medical evidence had reflected that the respondent-claimant had suffered overall bodily disability of 15 per cent he had fixed the disability in the matter of earning capacity of the respondent-claimant to an extent of 100 per cent. While taking me through the evidence adduced by the respondent-claimant, very well adverted to in pages 6 and 7 of the impugned order, Mr. Shankar submitted that the awarding of compensation of Rs. 97,320 together with interest was totally disproportionate to the disability the respondent-claimant had suffered. According to him, the WCC would have fixed the compensation in between 20 per cent and 50 per cent and not beyond. He had also pointed out that the award was in total negation of the provision in section 4 (1) (c) (ii) of the Workmen's Compensation Act, henceforth in brief, 'the WC Act' and that being the position, according to him, there is a question of law involved in the instant appeal. ( 3 ) NEXTLY, for and on behalf of the appellant No. 1, owner, Mr. S. P. Shankar had also argued that there was no good reason for the WCC to award penalty of rs. 20,000 on the appellant No. 1, owner as he was not put to notice before passing that order on him as contemplated under the proviso below 4-A (3) (b ). ( 4 ) THEREFORE, he prayed that impugned award passed by the WCC be modified and reduce to 20 per cent to 50 per cent thereon and further this court be pleased to set aside the penalty of Rs. 20,000 on the appellant No, 1, owner. ( 4 ) THEREFORE, he prayed that impugned award passed by the WCC be modified and reduce to 20 per cent to 50 per cent thereon and further this court be pleased to set aside the penalty of Rs. 20,000 on the appellant No, 1, owner. ( 5 ) IN the absence of the learned counsel for the respondent injured, I have gone through the records of the WCC myself. On doing that, it is clear that respondent-claimant had suffered non-schedule injury and as such, the compensation had to be computed with reference to the provision in section 4 (1) (c) (ii) of the Act. Admittedly, in the instant case in hand, the bodily disability of the respondent-claimant was assessed at 15 per cent. In the assessment by the doctor, the bodily disability of the respondent-claimant was fixed at 15 per cent and if that is so, the disability in the particular limb, i. e. , hip joint, must be more than 15 per cent. To me it appears that, it is in the fitness of things that the loss of earning capacity be assessed at 50 per cent taking into account the medical evidence on record. Therefore, it is obvious that the impugned award passed by the WCC is liable to be scaled down to 50 per cent. ( 6 ) IT was argued by Mr. Shankar that the appellant No. 1, owner had not been put to notice before fastening the liability of paying the penalty of Rs. 20,000. I find sufficient force in the said argument of mr. Shankar also, for under the proviso below section 4-A (3) (b), it is provided therein that no penalty shall be imposed under clause (b) without giving reasonable opportunity to the employer to show cause as to why he could not be imposed with penalty. ( 7 ) IN view of the above argument advanced by Mr. Shankar, I have crosschecked in the records of the WCC as to whether the appellant No. 1, owner had been put to notice with regard to fastening of the said liability of penalty, more particularly, the order sheet maintained in the case. But in no part thereof, I did notice that the appellant No. 1 owner had been issued with any show cause notice as provided under the above proviso. But in no part thereof, I did notice that the appellant No. 1 owner had been issued with any show cause notice as provided under the above proviso. Therefore, it also appears to me that the WCC would not have fastened the liability of payment of penalty on the owner in the said facts and circumstances of the case. ( 8 ) IN that view of the matter, the impugned award passed by the WCC is scaled down to Rs. 48,660 together with interest at 6 per cent from 17. 5. 93. The impugned award insofar as the same related to the award of penalty of Rs. 20,000 as against the appellant No. 1, owner stands set aside. ( 9 ) AT this stage, the learned counsel for the appellant, Mr. Shankar submitted that the appellant had since deposited the sum awarded, i. e. , Rs. 97,320 before this court and that out of the said sum, a sum of rs. 15,000 together with interest and costs had since been claimed by the respondent-claimant before the court and, therefore, the quantum had to be worked out with regard to the rest of the monies to be paid to the respondent-claimant. Let the Registry now make the necessary calculation and transfer the sum due to the respondent-claimant to the WCC below and further refund the remaining sum in deposit to the appellant No. 2, insurance company at the earliest, on the same being claimed by it. ( 10 ) THE appeal, therefore, succeeds in part and accordingly stands allowed in part in the above terms. Appeal partly allowed. --- *** --- .