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Karnataka High Court · body

2019 DIGILAW 1218 (KAR)

Lakshmeesha N. v. Prakash N.

2019-06-12

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. 1. By consent of the learned counsel for the parties, the matter is taken up for final hearing. The appellant-claimant who sustained grievous injuries in the accident that occurred on 19.07.2014 has filed the present appeal against the judgment and order dated 20.11.2015 passed in ECA No. 387/2014 on the file of the XII Additional Small Causes Judge and Member, MACT, Bangalore, awarding compensation of Rs. 1,32,602/- with interest at 12% p.a. from the date of accident i.e. 19.07.2014 till the realization of the amount. 2. It is the case of the claimant that the claimant was a driver under the second respondent, the R.C. owner of car bearing No. KA-02-MF-5451 and he was working under him as a driver getting monthly salary of Rs. 12,000/-. On 19.07.2014 at about 11.30 p.m. when he was proceeding in a car bearing No. KA-02-MF-5451 as a driver, along with the second respondent from Bangalore to Hubli and when they reached near K.R. Halli Gate, Taj Hotel, Hiriyur, the car met with an accident, as a result of which he sustained grievous injuries all over the body. Immediately, he was shifted to Hiriyur Hospital where he took first aid treatment and later on he was shifted to Unity Lifeline Hospital (India) Private Limited, Bangalore, where he took treatment as inpatient from 19.07.2014 to 26.07.2014 and thereafter he also took treatment at HOSMAT Hospital, Bangalore, as inpatient for 10 days by spending huge amount. 3. It is the further case of the claimant that he was hale and healthy prior to the accident and he could not do any work after the accident and the accident has taken place during the course of employment. The jurisdictional Police registered a case in Crime No. 215/2014 for the offences punishable under Sections 279 and 337 of IPC. The policy was in force as on the date of accident. Therefore, both the respondents are jointly and severally liable to pay the compensation. 4. After receipt of the summons, the respondents filed their written statements. The first respondent being the insurer alleged that the claim petition filed by the claimant is not maintainable in law or on facts and he has no knowledge of the accident. Therefore, both the respondents are jointly and severally liable to pay the compensation. 4. After receipt of the summons, the respondents filed their written statements. The first respondent being the insurer alleged that the claim petition filed by the claimant is not maintainable in law or on facts and he has no knowledge of the accident. He would further contend that neither the owner of the vehicle nor the jurisdictional Police have complied the mandatory provisions under Section 134(c) and 158(6) of the Motor Vehicles Act in furnishing better particulars, etc. Therefore, he sought to dismiss the claim petition. 5. The second respondent being the owner of the car also contended that the claim petition is not maintainable, but he has admitted that he has insured the car with the first respondent and the policy was in force on the date of the accident and also stated that he was paying Rs. 12,000/- per month as salary to the claimant. 6. Based on the pleadings of the parties, the Court below has framed the following issues: 1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in wound certificate, in a road traffic accident on 19.07.2014 at about 11.30 p.m. during the course of employment in car bearing No. KA-02-MF-5451 near K.R. Halli Gate, Taj Hotel, Hiriyur? 2. Whether the petitioner proves that he was the employee of the respondent No. 2 as on the date of alleged accident? 3. Whether the petitioner is entitled for any compensation? If so, to what extent and from whom? 4. What order or award? 7. In order to establish his case, the claimant examined himself as PW-1 and two other witnesses as PWs. 2 and 3 and marked 18 documents as Exs.P.1 to P.18. The respondents neither examined any witness nor marked any document. 8. The Tribunal after considering the entire material on record has recorded a finding that the claimant proved that he sustained grievous injuries in a road traffic accident occurred on 19.07.2014 during the course of employment under the second respondent and he is entitled to compensation. Accordingly, by impugned judgment and award, the Tribunal awarded compensation of Rs. 1,32,602/- with interest at 12% p.a. from the date of the accident i.e. 19.07.2014 till its realization. Hence, the present appeal is filed by the claimant seeking enhancement of the compensation. 9. The insurance Co. Accordingly, by impugned judgment and award, the Tribunal awarded compensation of Rs. 1,32,602/- with interest at 12% p.a. from the date of the accident i.e. 19.07.2014 till its realization. Hence, the present appeal is filed by the claimant seeking enhancement of the compensation. 9. The insurance Co. has not filed any appeal against the impugned judgment and order. 10. The appeal is admitted to consider the following substantial question of law: "Whether the Tribunal is justified in taking the disability of the claimant at 15% when the doctor - PW-2, assessed disability of the claimant at 27% to whole body in view of the provisions of Section 4(1)(c)(ii) of the Employees Compensation Act, 1923?" 11. I have heard the learned counsel for the parties to the lis. 12. Sri. P. Mahadeva Swamy, learned counsel for the appellant-claimant mainly contended that the Tribunal erred in assessing the disability of the claimant at 15% ignoring the oral evidence of PW-2 - doctor who assessed disability of 27% to whole body and the same is contrary to the provisions of Section 4(1)(c)(ii) of the Workmen's Compensation Act. Therefore, he sought to allow the appeal. 13. Per contra, Sri. A. Ravishankar, learned counsel for respondent No. 1-Insurance Co. sought to justify the impugned award. Taking into consideration the evidence of PW-2 - doctor and material documents, the Tribunal has rightly come to the conclusion that the claimant suffered disability of 15% and no interference is called for. He would also further contend that the Tribunal erred in awarding interest at the rate of 12% per annum from the date of the accident. No doubt the claimant is entitled to compensation from the date of the accident, but he is entitled to interest after one month from the date of the accident. Therefore, he sought to justify the impugned order. 14. Having heard the learned counsel for the parties, it is undisputed fact, that the claimant was working under the second respondent as a driver and the accident occurred on 19.07.2014 at about 11.30 p.m. during the course of employment, when the driver and the owner were proceeding from Bangalore to Hubli. The same is evidenced by the documentary evidence - Exs. P.1 to P.7. 15. Admittedly, the Insurance Co. has not filed any appeal against the finding that the accident occurred during the course of employment. The same is evidenced by the documentary evidence - Exs. P.1 to P.7. 15. Admittedly, the Insurance Co. has not filed any appeal against the finding that the accident occurred during the course of employment. The relationship between the parties as that of master and servant is proved. PW-2 - doctor examined on behalf of the claimant, stated on oath that the petitioner has sustained the total disability of the right lower limb at 52% and whole body disability to an extent of 27% and categorically stated that the petitioner can do other work, other than driving work without any difficulty. The Tribunal proceeded to take the disability of the claimant at 15% instead of 27% as stated by the doctor - PW-2 and contrary to the provisions of Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923, which reads as under: "4(1)(c)(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." In view of the above, the percentage of disability has to be taken as 27% as stated by PW-2 doctor. 16. For the reasons stated above, the substantial question of law framed in the above appeal has to be answered in the negative holding that the Tribunal is not justified in taking the disability of the claimant at 15% and the claimant is entitled to 27% disability. 17. It is undisputed fact that the claimant was aged about 40 years. The relevant factor 184.17 of the IV schedule of the Act is applicable. If the income of the claimant is taken at Rs. 8,000/- and if 60% is taken into consideration as per Section 4(1)(b) of the Act, it comes to Rs. 4,800/- x 184.17 x 27/100 = Rs. 2,38,684.32 paise. 18. After reassessing the entire material on record, the claimant is entitled to the compensation as under:- Total compensation Rs. 2,38,684/- Less compensation awarded by the Tribunal Rs. 1,32,602/- Enhanced compensation Rs. 1,06,082/- 19. In view of the aforesaid reasons, the appeal filed by the claimant is allowed in part. The impugned judgment and order passed by the Tribunal is modified. The claimant is entitled to enhanced compensation of Rs. 2,38,684/- Less compensation awarded by the Tribunal Rs. 1,32,602/- Enhanced compensation Rs. 1,06,082/- 19. In view of the aforesaid reasons, the appeal filed by the claimant is allowed in part. The impugned judgment and order passed by the Tribunal is modified. The claimant is entitled to enhanced compensation of Rs. 1,06,082/- with interest at 12% per annum after one month from the date of accident i.e. 19.07.2014 till its realisation. 20. The enhanced compensation awarded by this Court shall be released in favour of the claimant-appellant forthwith. Ordered accordingly.