Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1438 (KAR)

P. Gorappa v. Rajesh Babu

2019-06-26

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. Though the matter is posted for Admission with the consent of learned Counsel for the parties, it is taken up for final Hearing. 2. The claimant, who was working as a driver of the lorry, has filed the present Miscellaneous First Appeal for enhancement against the judgment and award dated 28th September, 2015 made in E.C.A.No.80/2014 by the file of the Commissioner of Workmen's Compensation Act awarding the total compensation of Rs.44,032/- with interest at the rate of 9% per annum from the date of petition till its realization. 3. It is the case of the claimant that he was working as a driver under the 1st respondent in his Tanker Lorry bearing No.AP-37-W-7866. On 3.1.2012 at about 00.30 a.m. while he was returning from Aspari to Challakere near Harijana Talari Venkateswaralu on Aspari-Kurnool road, Andhra Pradesh State, he lost control over the Tanker Lorry and dashed against the standing tree on the left side of the road due to which he sustained severe injuries to his tenderness over the left and right leg, left hand, left wrist, chest, face and all over the body. Immediately he was shifted to Government Hospital Aspari, Andhra Pradesh. Thereafter he was admitted to Government General Hospital, Kurnool in Andhra Pradesh. Further he had taken treatment as an indoor patient at District Government Hospital and also at Private Hospital, Chitradurga. Because of the injuries sustained in the accident, he had fractures and he is not in a position to do any work. He also cannot bend his right leg and left hand and cannot sit with crossed legs and cannot bear weight on his right leg. He has severe pain in his right leg and left hand and no strength in his left hand. Since he is suffering from permanent disability, he cannot drive the vehicle as he was driving earlier and has lost his earning capacity. 4. The claimant has further pleaded that respondent No.1 used to pay monthly wages of Rs.8,000/- and Rs.100/- per day towards batta. He has also pleaded that the accident occurred during the course of employment under respondent No.1. The vehicle was insured with the 2nd respondent at the time of the accident and the insurance was in force. Therefore it was contended that both respondent Nos.1 and 2 were jointly and severally liable to pay compensation. 5. He has also pleaded that the accident occurred during the course of employment under respondent No.1. The vehicle was insured with the 2nd respondent at the time of the accident and the insurance was in force. Therefore it was contended that both respondent Nos.1 and 2 were jointly and severally liable to pay compensation. 5. Respondent No.1 though appeared through his Counsel did not file the objections. 6. The 2nd respondent filed objections denying the averments made in the claim petition, age of the appellant and also the relationship of employer and employee as well as the monthly wage. He has further contended that liability will be subject to validity of R.C., F.C., Permit and Driving License. He has also specifically pleaded that there is no privacy of contract between the appellant and respondent No.1 and there is no nexus between the injury and employment, etc. Therefore, sought for dismissal of the claim petition. 7. Based on the pleadings, the Commissioner for Workmen's Compensation/Tribunal framed the following issues: "(i) Whether the petitioner proves that he has sustained injuries in the road accident that was occurred on 03.01.2012 at about 00.30a.m. (hours) on Aspari-Kurnool road of Andhra Pradesh, near Harijan Talari Venkateshwaralu filed, while he was discharging his duty as a driver in the Tanker Lorry bearing No.AP-37-W-7866 of respondent no.1, during the course of employment under respondent no.1? (ii) Whether petitioner is entitled for compensation? If so, how much? From whom? (iii) What order or award?" 8. In order to prove his case, the appellant has examined himself as P.W.1 and the Doctor as P.W.2 and marked the documents as Exs.P.1 to 38. The 2nd respondent has not adduced any evidence but has got marked the document Ex.R.1-Insurance Policy with the consent of the other side to prove that the policy was in force. 9. The Commissioner for Employee's Compensation considering the entire material on record has recorded a finding that the claimant/appellant has proved that he has sustained injuries in a road accident that occurred on 3.1.2012 arising out of and during the course of his employment under the 1st respondent and hence, he is entitled to the compensation. Accordingly, by the impugned judgment and order awarded the compensation of Rs.44,032/- with interest at 9% per annum from the date of petition till its realization from respondent No.2. Accordingly, by the impugned judgment and order awarded the compensation of Rs.44,032/- with interest at 9% per annum from the date of petition till its realization from respondent No.2. Hence, the appellant/claimant has filed the present Miscellaneous First Appeal for enhancement of compensation. 10. The Insurance Company-respondent No.2 has not filed any appeal against the impugned judgment and order. 11. I have heard the learned Counsel for the parties to the lis. 12. Sri N. Krishnoji Rao, learned Counsel for the appellant contended that the Tribunal erred in taking the monthly wage of the driver at Rs.6,000/- per month. Admittedly when the accident has occurred on 3.1.2012 after coming into force the amendment Act and the Tribunal ought to have taken the monthly wages at Rs.8,000/-. He further contended that the Tribunal has erred in taking the loss of earning capacity at 6% even though the doctor has stated on oath that the claimant is suffering from 20% disability. He also submitted that the Tribunal has erred in awarding the interest at 9% instead of 12% as contemplated under the provisions of Section 4(A)(3)(a) of the Act. Therefore, he contended that the impugned judgment and award requires to be modified and sought to allow the Miscellaneous First Appeal. 13. Per contra, Sri. A.M. Venkatesh, learned Counsel for respondent No.2 sought to justify the impugned judgment and award. He further contended that in the absence of any documents produced, the Tribunal was justified in taking the monthly wage of the appellant at Rs.6,000/-. He further contended that taking into consideration the facts and circumstances of the present case, the Tribunal has rightly arrived disability at 6% and awarded interest at 9% which is just and proper and therefore, he sought to dismiss the miscellaneous first appeal. 14. This Court while admitting the appeal has framed the following substantial questions of law: (i) Whether the Tribunal is justified in taking the monthly wages of the claimant at the rate of Rs.6,000/- when the accident has taken place on 3.1.2012 subsequent to the amended provisions of the Act fixing the monthly wage at Rs.8,000/-? (ii) Whether the Tribunal is justified in awarding the interest at the rate of 9% per annum contrary to the provisions of Section 4A(3)(a) of the Employees' Compensation Act? (ii) Whether the Tribunal is justified in awarding the interest at the rate of 9% per annum contrary to the provisions of Section 4A(3)(a) of the Employees' Compensation Act? (iii) Whether the Tribunal is justified in taking the loss of disability at 6% in the facts and circumstances of the present case? 15. Having heard the learned Counsel for the parties, it is an undisputed fact that the claimant who was a driver under the 1st respondent sustained grievous injuries, fracture of right tibia and fracture of left hand and applied plaster of paris. He also sustained fracture of proximal phalanx of left thumb with soft tissue injury and multiple other soft tissue injuries on account of rash and negligent driving of the driver of the Tanker Lorry bearing No AP-37-W-7866 on 3.1.2012 arising out of and during the course of employment under the 1st respondent. The same is evidenced by the material on record Exs.P.1 to P.5. The Complaint, FIR, Wound Certificate and Motor Vehicle Report issued by the concerned officials during the course of their official duty. 16. The complainant, who is examined as P.W.1 has stated on oath that he was earning wages at Rs.8,000/- per month and Rs.100/- per day towards batta, but the Tribunal has disbelieved the statement made by P.W.1 and has taken the income at Rs.6,000/- per month. It is also not in dispute that the accident occurred on 3.1.2012 and as on the date of the accident, the amended provision of Sub-section (1B) of Section 4 of the Employee's Compensation Act, 1923 had come in force and the Central Government has notified that the monthly wage of Rs.8,000/- has to be taken for calculation and therefore, in all fairness, the Tribunal ought to have taken the monthly wages at Rs.8,000/- instead of Rs.6,000/-. The Tribunal while passing the impugned judgment and award has erred in awarding interest at 9% instead of 12% per annum which is again contrary to the provisions of Section 4A(3)(a) of the Employees Compensation Act. 17. Though P.W.2, the doctor, who examined the claimant has stated on oath that there is permanent physical disability of 20% with respect to his left upper limb, the Tribunal has erred in taking the loss of earning capacity at 6%. 17. Though P.W.2, the doctor, who examined the claimant has stated on oath that there is permanent physical disability of 20% with respect to his left upper limb, the Tribunal has erred in taking the loss of earning capacity at 6%. Hence, taking into consideration the facts and circumstances of the present case, the Tribunal ought to have taken the loss of disability at least 8% to the left upper limb. 18. In view of the aforesaid reasons, the substantial questions of law framed in the present miscellaneous first appeal has to be answered in negative holding that the Tribunal is not justified in taking monthly wage at Rs.6,000/- instead of Rs.8,000/- in terms of the notification issued by the Central Government stated supra. The Tribunal was also not justified in awarding the interest at 9% per annum under the provisions of Section 4A(3)(a) of the Employees Compensation Act and it ought to have awarded interest at 12% per annum. 19. In view of the fact that the claimant has suffered permanent disability to his left hand, the Tribunal ought to have taken the disability at 8% while arriving the loss of earning capacity. In view of the amendment of the provisions of Sub-Section (1B) of Section 4 of the Employee's Compensation Act fixing the monthly wages of the claimant at Rs.8,000/- and taking 60% of Rs.8,000/- i.e., Rs.4,800/- and applying the relevant factor 203.85, the earning capacity of the claimant would be Rs.78,279/- ps. (Rs.8,000 x 60% x 8% x 203.85 = Rs.78278.04 rounded of to Rs.78,279/-). It is also to be noted that the Tribunal has not considered the medical bills - Exs.P.6 to 31 totaling to Rs.13,678/-. 20. After re-assessing the entire material on record, the claimant is entitled for the compensation as under: Loss of earning capacity Rs.8,000 x 60% x 8% x 203.85 = Rs.78278.04 rounded of to Rs.78,279/- Rs.78,279/- Medical expenses Rs.13,688/- Total Rs.91,967/- Less already awarded by the Tribunal Rs.44,032/- Enhancement Rs.47,935/- 21. In view of the above, the claimant is entitled to the total compensation amount of Rs.91,967/- as against Rs.44,032/- awarded by the Tribunal. Thus the claimant is entitled to enhanced compensation of Rs.47,935/- with interest at the rate of 12% per annum after one month from the date of accident till its realization. 22. Accordingly, the miscellaneous first appeal is allowed in part. Thus the claimant is entitled to enhanced compensation of Rs.47,935/- with interest at the rate of 12% per annum after one month from the date of accident till its realization. 22. Accordingly, the miscellaneous first appeal is allowed in part. The impugned judgment and award dated 28th September, 2015 passed in ECA No.80/2014 is hereby modified and the claimant is entitled for the enhanced compensation with interest as stated supra.