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2019 DIGILAW 1349 (KAR)

Aijaz Pasha v. Shekar

2019-06-19

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. By consent of learned counsel appearing for the parties, the matter is taken up for final hearing. 2. The present appeal is filed by the claimant against the Judgment and Order dated 23.08.2017 passed in E.C.A.No.56/2014 on the file of IV Additional Senior Civil Judge & JMFC, Mysuru, in awarding compensation of 1,74,350/- with interest at 12% p.a. 3. The parties herein are referred to as per their ranking before the Tribunal. 4. It is the case of the claimant before the Commissioner/Tribunal that he was the driver of Autorickshaw bearing No.CTO-9003 under respondent No.1. During the course of his employment, on 12.10.2009, while he was driving the autorickshaw near RTTC compound, Kamakshi Hospital Road, Mysuru, at about 3.00 p.m., a TVS Scooty bearing No.KA-09-EF- 5107 came suddenly on the road and when the claimant tried to stop his vehicle to avoid accident, the autorickshaw turtled and the claimant sustained grievous injuries to his left eye, right leg and other parts of the body. He took treatment as in-patient at Holdsworth Memorial Hospital, Ashwini Hospital and Race Club Eye Hospital for the injuries sustained by him. It is his further case that he was drawing monthly wages of Rs.6,000/- from respondent No.1 and the accident is arising out of and during the course of his employment. Hence, he filed petition seeking compensation with interest from respondent No.1-owner of the vehicle and respondent No.2-Insurer of the said vehicle. 5. After issuance of notice, respondent No.1 remained absent and respondent No.2 appeared and filed objections contending that the petition is not maintainable as the alleged accident occurred due to rash and negligent driving of the claimant himself and therefore he is responsible for the said accident. Charge sheet was filed against the claimant. Therefore, he contended that the petition is barred under Section 10 of the Act. It is further contended that the vehicle in question was not registered with respondent No.2 for insurance and the claimant was not having valid driving licence at the time of accident. Hence, sought for dismissal of the petition. 6. Based on the aforesaid pleadings, the Commissioner/Tribunal framed the following issues:- XXX XXX XXX 7. In order to prove the case of the claimant, he was examined as PW.1 and the Doctors who treated him were examined as PWs.2 and 3 and Exs.P1 to P15 were got marked. Hence, sought for dismissal of the petition. 6. Based on the aforesaid pleadings, the Commissioner/Tribunal framed the following issues:- XXX XXX XXX 7. In order to prove the case of the claimant, he was examined as PW.1 and the Doctors who treated him were examined as PWs.2 and 3 and Exs.P1 to P15 were got marked. Respondent No.2 did not adduce evidence except got marked Ex.R1-policy. 8. The Commissioner/Tribunal after considering the entire material on record has come to the conclusion that the claimant is the 'employee' under respondent No.1 as contemplated under Section 2(1)(dd) of the Employees' Compensation Act, 1923 (for short 'Act') and has also proved that the accident occurred arising out of during the course of the employment and therefore, the claimant is entitled to compensation. Accordingly, the Commissioner/Tribunal by the impugned judgment and order has awarded compensation of Rs.1,74,350/- with 12% interest from the date of petition till the date of its realization. Hence, the present appeal is filed by the claimant seeking enhancement. The insurance company has not filed any appeal against the impugned judgment and order. 9. I have heard the learned counsel for the parties to the lis. 10. Learned counsel for the claimant contended that the Commissioner/Tribunal has considered the loss of disability only at 32% ignoring the evidence of the doctors-PW2. He further contended that the loss of earning capacity ought to have been assessed at 40% taking into consideration the provisions of Sections 2(1) and 4 and Schedule I, Sl.No.25 of Part-II of the Act Therefore, he sought to allow the appeal. 11. Per contra, Sri A.N.Krishnaswamy, learned counsel appearing for respondent No.2 has sought to justify the impugned judgment and order and contended that the Tribunal has rightly taken 32% towards whole body disability taking into consideration that the claimant has suffered 'loss of vision of one eye, without complications or disfigurement of eye-ball, the other being normal' under the provisions of Sections 2(1) and 4 and Schedule I, Sl.No.26 of Part-II of the Act and 7% disability towards fracture of lower limb. Therefore, he sought for dismissal of the appeal. 12. Therefore, he sought for dismissal of the appeal. 12. This Court admitted the appeal to consider the following substantial question of law: "Whether the Commissioner/Tribunal is justified in assessing the loss of disability (loss of earning capacity) at 32% in view of the evidence of Doctors-PW2 and PW3 when the provisions of Sections 2(1) and 4 of the Employees' Compensation Act, 1923 (for short 'Act') multiplied with relevant factor found in Schedule-I, Part-II, Item No.25?" 13. Having heard the learned counsel for the parties, it is not in dispute that the claimant sustained grievous injuries to his left eye, fracture of right leg and other parts of body arising out of and during the course of employment and that the accident occurred on 12.10.2009. Respondent No.1- owner has remained absent. Respondent No.2 was not examined. However, Ex.R1-policy produced by respondent No.2 was in force as on the date of the accident. The evidence adduced by PWs.2 and 3-Doctors has not been disputed by producing any contra evidence by the Insurance company. In the absence of any documents produced by the claimant to prove his wages, the Commissioner/Tribunal has determined wages at Rs.4,000/- per month based on the oral and documentary evidence of the claimant and the relevant factor 169.44 taken by the Commissioner/Tribunal is just and proper. 14. While calculating the compensation, the Commissioner/Tribunal has taken 60% of wages Rs.4,000/- provided under Section 4(1)(b) of the Act and multiplied with relevant factor 169.44 is just and proper. In view of the evidence of doctor-PW2 that the total loss of vision in the left eye would be 40% to the whole body would be come under Schedule-I, Item No.25 of Part-II. Schedule-I, Item No.25 of Part-II would clearly depict loss of disability with regard to "loss of one eye, without complications, the other being normal" to be taken at 40%. Considering the loss of earning capacity at 40% and fracture in the lower limb amounts to 7% of disability, the total loss of earning capacity comes to 47%. Thus, the compensation is calculated in terms of Section 4(1)(b) of the Act i.e., Rs.2400 x 169.44 x 47% x 100 = 1,91,128/-. The compensation awarded by the Commissioner/Tribunal under the head 'medical expenses' is just and proper and does not call for interference. Thus, the compensation is calculated in terms of Section 4(1)(b) of the Act i.e., Rs.2400 x 169.44 x 47% x 100 = 1,91,128/-. The compensation awarded by the Commissioner/Tribunal under the head 'medical expenses' is just and proper and does not call for interference. Thus, in all, the claimant is entitled to total compensation of Rs.2,25,478/- as against Rs.1,74,350/- awarded by the Commissioner/Tribunal as under: Towards loss of earning capacity 1,91,128-00 Medical expenses 34,350-00 Total 2,25,478-00 15. In view of the above, the appeal is allowed in part. The substantial question of law is answered in negative holding that the Tribunal is not justified in assessing the loss of earning capacity at 32% in view of the evidence of the Doctors-PW2 and PW3. Therefore, the impugned judgment and order has to be modified. The compensation payable to the claimant is enhanced from Rs.1,74,350/- to Rs.2,25,478/-. The enhanced compensation would come to Rs.51,128/-. 16. The Respondent-insurer shall deposit the enhanced compensation of Rs.51,128/- with interest at 12% p.a. before the Commissioner/Tribunal within four weeks from the date of receipt of certified copy of this judgment. On such deposit, the same shall be disbursed to the claimant, on proper identification. There shall be no order as to the costs. Office to draw the decree accordingly.