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Karnataka High Court · body

2010 DIGILAW 1023 (KAR)

Chandrakumar v. Director, Chaithanya Cold Storage

2010-09-22

A.S.BOPANNA

body2010
Judgment : The appellant is seeking enhancement of compensation as against the sum awarded by the Commissioner for Workmen’s Compensation by the award dated 23/1/2007. 2. Heard the learned counsel for the parties and perused the appeal papers. 3. The fact relating to the claimant having suffered injuries in the accident which occurred on 23/11/2000 is not in dispute. The ground on which the enhancements has been sought by the appellant is that the commissioner was not justified in reckoning the wages as reckoned by him and also the loss of earning capacity as noticed by the commissioner is on the lower side and as such if these aspects of the matter are corrected, the claimant would be entitled to a higher compensation which is to be granted. 4. Learned counsel for the respondent, however, seeks to justify the award contending that the wage in any case is appropriately taken since during the said period, the maximum that could be taken is a sum of Rs. 2000/- with regard to the loss of earning capacity, it is contended that the doctor has stated the disability to the whole body at 15% and as such the commissioner after taking note of the nature of injuries, has appropriately fixed the loss of earning capacity at 15% and as such, the same does not call for interference. 5. Having heard the learned counsel for the parties and a perusal of the award passed by the commissioner for workmen’s compensation, would indicate that with regard to the wages the commissioner has taken not of the contention put forth by the claimant contending that he was earning a sum of Rs. 5000/- since he was working as a driver. The commissioner, thereafter, on taking note that there is no specific evidence on this aspect of the matter, has reckoned the wage at Rs. 2000/- per month. In the instant case, what is to be noticed is that the accident has occurred on 23/11/2000 and in any event, explanation – II to section 4(b) at that point indicates the maximum wage to be taken for the purpose of calculation at Rs. 2000/- and therefore, that aspect does not need any further consideration, since it is appropriate. 6. In the instant case, what is to be noticed is that the accident has occurred on 23/11/2000 and in any event, explanation – II to section 4(b) at that point indicates the maximum wage to be taken for the purpose of calculation at Rs. 2000/- and therefore, that aspect does not need any further consideration, since it is appropriate. 6. With regard to the loss of earning capacity, it is no doubt true that the commissioner has referred to the nature of injuries suffered by the claimant and also the evidence tendered by Sr. B.K. Sudhakanth as PW-2. The said doctor while stating with regard to the nature of injuries suffered with reference to the documents at Exs. P-1 to P-5 has stated the disability to the right lower limb at 45% and to the whole body at 15%. The commissioner, in fact, has reckoned the disability which has been stated to the whole body to be the less of earning capacity. In my view, in the present facts, the commissioner was not justified for the reason that the doctor after stating disability to the limb and to the whole body, has also said with regard to the difficulty that the claimant would face in discharging his duties as a driver. In this regard, considering the fact that there was disability to the right lower limb, in any event, the loss of earning capacity as reckoned by the commissioner at 15% is on the lower side. Instead of having reassessment of the same done by the commissioner, it would be appropriate to consider the nature of injuries and the avocation and also the normal compensation that would have been paid to a driver in respect of such injuries by reckoning appropriate loss of earning capacity, which in my view, would be at 25%. If the said loss of earning capacity is reckoned and the other parameters with regard to wages and the relevant factor is kept in tact and the compensation is recalculated, it would be in a sum of Rs. 62,394/-. Since the commissioner has already awarded a sum of Rs. 37,436/- the claimant would be entitled to enhancement of Rs. 24,958/- . 62,394/-. Since the commissioner has already awarded a sum of Rs. 37,436/- the claimant would be entitled to enhancement of Rs. 24,958/- . as it is not in dispute that the nature of injuries are non-schedule injuries and as such on the enhanced amount, the claimant would be entitled to interest at 7 ½% from the date of petition before the commissioner to the date of the award and at 12% thereafter. The insurance company shall deposit the enhanced amount with interest within a period of six weeks from the date of receipt of a copy of this judgment. On deposit, the entire amount shall be disbursed to the claimant. 7. In terms of the above, the appeal stands disposed of. No order as to costs.