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2019 DIGILAW 1439 (KAR)

Oriental Insurance Co Ltd v. M. Saravanan

2019-06-26

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. MFA No.3921/2016 is filed by the Insurance Company for reduction of compensation and MFA No.1872/2016 is filed by the claimant for enhancement of compensation against the judgment and order dated 23.01.2016 made in ECA No.177/2014 on the file of the II Addl. Small Causes Judge and XXVI ACMM and Employees Compensation Commissioner, Bengaluru (SCCH-09), awarding compensation of Rs. 85,850/- with interest at 12% from the date of the accident till realization. 2. The claimant filed petition under Section 22 of the Employees Compensation Act, 1923 ('the Act' for short) claiming compensation of Rs. 5,00,000/-, contending that, on 06.08.2012 at about 5.30 am, he was driving a car bearing registration No. KA-03/ C-3614 on Basavanagar Main Road, when he reached near Helicopter Division Parking Place, at that time, a water tanker bearing registration No.KA-03 B-8523 driven by its driver at high speed, in a rash and negligent manner, dashed against his car. Due to the impact, he sustained grievous injuries. Immediately he was shifted to VIMS Hospital, where he took treatment as an inpatient and incurred Rs. 50,000/- towards medical expenses. Since the accident took place during the course of employment, the respondents are liable to pay compensation. 3. Inspite of service of notice, the first respondent-owner of the offending vehicle remained absent. He was placed ex-parte. The respondent No.2-insurance company entered appearance and filed written statement and admitted that the lorry was insured with it and the insurance policy was in force as on the date of the accident. The other averments i.e., the injuries sustained by the claimant during the course of employment, expenses incurred for treatment and the liability of the second respondent to pay compensation, were denied. It was contended that the injuries sustained by the claimant are no way connected with the use of car, and sought for dismissal of the claim petition. 4. Based on the aforesaid pleadings, the Commissioner, framed the following issues: xxx xxx 5. In order to establish his claim, the claimant examined himself as P.W.1 and examined Dr. Chander, Resident Medical Officer, VIMS Hospital as P.W.2 and got marked documents Exs.P.1 to P.14. The second respondent examined its Assistant Manager as R.W.1 and got marked documents Exs.R.1 to R.4. 6. In order to establish his claim, the claimant examined himself as P.W.1 and examined Dr. Chander, Resident Medical Officer, VIMS Hospital as P.W.2 and got marked documents Exs.P.1 to P.14. The second respondent examined its Assistant Manager as R.W.1 and got marked documents Exs.R.1 to R.4. 6. The Commissioner/Tribunal, considering the entire material on record, has recorded a finding that the claimant has proved that he is workmen as contemplated under the provisions of Act and that the accident occurred during the course of employment and as on the date of the accident, the claimant was aged 31 years and was earning monthly wages of Rs. 7,500/-. Accordingly, by the impugned judgment and order, awarded compensation of Rs. 85,850/- with interest at 12% from the date of the accident till its realization. Hence the present appeals are filed. 7. While admitting the above appeals, the following substantial questions of law were framed. (i) Whether the Commissioner is justified in taking monthly wages of the claimant at Rs. 7,500/- in view of the provisions of Section 4(1)(1B) of the Employees Compensation Act, 1923 which came into effect from 31.05.2010 fixing monthly minimum wages of Rs. 8,000/-? (ii) Whether the Commissioner is justified in not deducting 60% of the wages, in view of provisions of Section 4(1)(b) of the Act? (iii)Whether the Commissioner is justified in taking 5% as loss of earning capacity, in view of the provisions of Section 4(1)(c)(ii) of the Act? 8. I have heard the learned counsel for the parties to the lis. 9. Smt. Harini Shivananda, learned counsel for the insurance company, contended that the Commissioner, while considering the monthly wages of the claimant has not deducted 60% as contemplated under Section 4(1)(b) of the 'Act'. Therefore, she submits that the impugned Order cannot be sustained to that extent. Therefore, she sought to allow the appeal filed by the insurance company by dismissing the claimant's appeal. 10. Per contra, Sri Krishna Reddy, learned counsel for the claimant contended that admittedly the accident occurred on 06.08.2012. In view of the provisions of Section 4(1B) of the Act, the Central Government has fixed Rs. 8,000/- as monthly wages, vide notification dated 31.05.2010. Therefore, the Commissioner was not justified in taking monthly wages of the claimant at Rs. 7,500/-. 10. Per contra, Sri Krishna Reddy, learned counsel for the claimant contended that admittedly the accident occurred on 06.08.2012. In view of the provisions of Section 4(1B) of the Act, the Central Government has fixed Rs. 8,000/- as monthly wages, vide notification dated 31.05.2010. Therefore, the Commissioner was not justified in taking monthly wages of the claimant at Rs. 7,500/-. He further contended that though P.W.2- Doctor who examined the claimant has assessed the loss of earning capacity at 30%, the Commissioner has taken only 5%. Therefore, he sought to allow the claimant's appeal by dismissing the appeal filed by the insurer. 11. Having heard the learned counsel for the parties, it is undisputed fact that in the accident that occurred on 06.08.2012 at 5.30 am, the claimant sustained injuries arising out of and during the course of employment. The same is evidenced from the material document Exs.P.1 to P.4. Admittedly, the insurance company has not disputed the accident. 12. The claimant examined on oath as P.W.1 has stated on oath that he was working as driver and earning monthly wages of Rs. 10,000/- and batta of Rs. 100/- per day. Due to the injuries sustained in the accident, he has suffered loss of income and his family is depending upon his income. In order to prove that he has sustained fracture, the claimant has examined the doctor as P.W.2 who has stated on oath the claimant is suffering physical impairment at 30%. Besides, the claimant is having difficulty in bending the body backward or forward and assessed the disability at 10% and 20% to the upper body. The Commissioner proceeded to take only 5% disability, mainly on the ground that P.W.2 has clearly stated that he is a resident medical officer/ MBBS doctor and not an orthopedic surgeon. Hence he is not competent person to assess the disability. 13. Admittedly, the accident occurred on 06.08.2012. Claimant has stated that he was earning wages of Rs. 10,000/- per month and Rs. 100 batta per day. In view of the amended provisions of the Act as stated supra fixing monthly wages at Rs. 8,000/- by the Government vide Notification dated 31.05.2010, the Commissioner ought to have taken monthly wages of the claimant at Rs. 8,000/-. Claimant has stated that he was earning wages of Rs. 10,000/- per month and Rs. 100 batta per day. In view of the amended provisions of the Act as stated supra fixing monthly wages at Rs. 8,000/- by the Government vide Notification dated 31.05.2010, the Commissioner ought to have taken monthly wages of the claimant at Rs. 8,000/-. As contemplated under Section 4(1)(b) of the Act, since it is a case of permanent total disablement as a result of the injuries, has taken 60% of the wages. The Doctor who examined the claimant has assessed the disability at 30%. But, as per the provisions of Section 4(1)(c)(ii) of the Act, 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, has to be taken into consideration. 14. The Commissioner disbelieved the statement of P.W.2/Doctor only on the ground that he is not an orthopedician. Though the Act specifically says that the disability has to be assessed by qualified medical practitioner, the fact remains that the Doctor assessed the disability at 30% and the Commissioner has taken disability at 5%. The same is on lower side. Taking into consideration the peculiar facts and circumstances of the case and the injuries sustained by the claimant, the Commissioner ought to have taken disability atleast 15%. 15. Taking monthly wages of the claimant at Rs. 8,000/-, deducting 60% in view of Section 4(1)(b) of the Act and taking disability at 15%, the relevant factor 205.95, the claimant is entitled to 4800 x 205.95 x 15%= Rs. 1,48,284/- and medical expenses of Rs. 8,550/- as awarded by the Commissioner, the claimant is entitled to Rs. 1,56,834/-. 16. In view of the above, both the appeals are disposed of and the impugned judgment and award is modified. The claimant is entitled to compensation of Rs. 1,56,834/- as against Rs. 85,850/- awarded by the Commissioner. Thus the enhancement would be Rs. 70,984/- with interest at 12% after one month from the date of accident till payment. The enhanced compensation with interest shall be released in favour of the claimant after proper identification. The claimant is entitled to compensation of Rs. 1,56,834/- as against Rs. 85,850/- awarded by the Commissioner. Thus the enhancement would be Rs. 70,984/- with interest at 12% after one month from the date of accident till payment. The enhanced compensation with interest shall be released in favour of the claimant after proper identification. Accordingly, these appeals are disposed of in the peculiar facts and circumstances of the case and shall not be treated as precedent in future in any other cases. 17. The amount in deposit before this Court is ordered to be transferred to the jurisdictional Court, forthwith. Ordered accordingly.