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Karnataka High Court · body

2019 DIGILAW 1555 (KAR)

B. Samya Naik v. Basavaraja

2019-07-03

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. 1. The present appeal is filed by the appellant/claimant against the Judgment and Order dated 11.12.2015 passed in ECA No. 81/2015 on the file of the II Additional Senior Civil Judge and CFEC, Chitradurga seeking enhancement of compensation. 2. The parties herein are referred to as per their ranking before the Tribunal. 3. It is the case of the claimant that he was working as a hamali (loader and un-loader) under the employment of respondent No. 1, who is the owner of Lorry bearing Registration No. KA-05/B-8752. The claimant was earning monthly wages at Rs. 6,000/- along with bata of Rs. 100/- per day under the employment of respondent No. 1. On 21.05.2013 at about 11.30 a.m. as per instructions of respondent No. 1, the petitioner along with other hamalies loaded the stone slabs and brought them in the said lorry to be unload at Tirumala Hospital, Challakere Town. When the claimant and others were unloading the stone slabs from the said lorry by the side of road near the said hospital, one stone lap slipped and fell on the left leg of the petitioner/claimant in spite of his due care. As a result of which, the claimant had sustained grievous injuries comminuted fracture of left leg with multiple fragmentation open type II fracture of LS Spain and other injuries all over the body. Immediately, he was shifted to Government Hospital, Challakere, where he was given first aid treatment. On advise of the Doctor, the injured was shifted to Government Hospital, Chitradurga, where he took treatment as an inpatient from 21.05.2013 to 29.06.2013. It is further contended that he underwent surgery by fixing rod, screws, plates, nails to his left leg and also applied belt to his LS Spain fracture. Thereafter, he was under follow-up treatment and incurred medical expenses of Rs. 1,00,000/-. 4. It is further contended that the claimant was hale and healthy prior to the date of accident. Due to impact of fracture and injuries in the accident, he was unable to attend his hamali work, as prior to the date of accident. He is unable to walk, sit, squat his leg properly and also unable to bend his body. As such, he is suffering from permanent disability, mental agony and also lost his earning capacity. The accident has occurred during the course of employment under respondent No. 1. He is unable to walk, sit, squat his leg properly and also unable to bend his body. As such, he is suffering from permanent disability, mental agony and also lost his earning capacity. The accident has occurred during the course of employment under respondent No. 1. Respondent No. 1 is the RC owner and respondent No. 2 is the insurer of said lorry. As such, both the respondents are jointly and severally liable to pay the compensation. 5. Respondent No. 1 remained absent. Respondent No. 2 appeared through his counsel and filed his statement of objections and has denied all the claim averments so far as the accident, injuries sustained by the injured during the course of employment under respondent No. 1 and also treatment obtained by him. Further, respondent No. 2 Insurance company denied the age, avocation and relationship between the claimant and respondent No. 1 as employer and employee. There was no contract between the respondents for payment of interest on award amount. If any liability on the part of respondent No. 2, is subject to terms and conditions of insurance policy. Therefore, sought for dismissal of the claim petition. 6. Based on the aforesaid pleadings, the Tribunal has framed the following issues: 1. Whether the petitioner prove that, he sustained injuries in the accident which occurred on 21.05.2013 at about 11.30 a.m. near Tirumal Hospital, Challakere town, during the course of his employment under respondent No. 1 while working as loader and un-loader of Lorry bearing Reg. No. KA-05/B-8752 ? 2. Whether the petitioner is entitled for compensation, if so, how much and from whom? 3. What order or award? 7. In order to establish his case, the petitioner/claimant has examined himself as PW-1 and got marked 38 documents as per Ex.P1 to P38. On respondents' side examined Manager of respondent No. 2 as RW-1 and marked copy of the insurance policy as per Ex.R1. 8. The Tribunal considering the entire materials on records, has recorded the findings of fact that the claimant proved that he has sustained grievous injuries in the accident occurred on 21.05.2013 during the course of employment under respondent No. 1 and he is entitled for a compensation of Rs. 2,30,600/- with interest at the rate of 9% p.a. from respondent No. 2 Insurance Company. Hence, present petition is filed by the claimant for enhancement of compensation. 2,30,600/- with interest at the rate of 9% p.a. from respondent No. 2 Insurance Company. Hence, present petition is filed by the claimant for enhancement of compensation. 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. Sri. Krishnoji Rao, learned counsel for the appellant has contended that the Tribunal was not justified in taking the monthly wages of the claimant at Rs. 5,000/- when the accident has occurred on 21.05.2013 in view of the provisions of Section 4(1B) of the Act thereby, the Central Government has fixed the monthly wages at Rs. 8,000/- with effect from 31.05.2010. On that ground itself, the impugned judgment and order has to be modified. It is further contended that the Tribunal has not awarded any compensation in respect of medical expenses, which is produced at Exs.P11 to P34. 11. He further contended that the Tribunal has erred in taking the disability at 40% ignoring the overall evidence of PW-2-The Doctor and material documents, which is produced at Ex.P10-Disability Certificate. Further, it is contended that the Tribunal has erred in awarding the interest at the rate of 9% p.a. instead of awarding at the rate of 12% p.a. as contemplated under the provisions of the Act. Therefore, he sought to allow the appeal. 12. Per contra, Shri S. Srishaila learned counsel for respondent No. 2-Insurance Company sought to justify the impugned judgment and order passed by the Tribunal. He further contended that in the absence of material documents to prove that the monthly wages of the claimant was Rs. 10,000/- p.m. the Tribunal was justified in taking the monthly wages at Rs. 5,000/-. Taking into consideration of the evidence of PW-2 the Doctor, the Tribunal was justified in taking the disability at 40% and awarded interest at the rate of 9% p.a. under the facts and circumstances of the case. Therefore, he sought to dismiss the appeal. 13. This Court admitted the appeal to consider the following substantial question of law: 1. Whether the Tribunal is justified in taking the monthly wages of the claimant at Rs. 5,000/- when the accident has occurred on 21.05.2013, in view of the provisions of Section 4(1B) of the Employee's Compensation Act, 1923 wherein, the Central Government has fixed the monthly wages at Rs. 8,000/- by notification dated 31.05.2010? 2. Whether the Tribunal is justified in taking the monthly wages of the claimant at Rs. 5,000/- when the accident has occurred on 21.05.2013, in view of the provisions of Section 4(1B) of the Employee's Compensation Act, 1923 wherein, the Central Government has fixed the monthly wages at Rs. 8,000/- by notification dated 31.05.2010? 2. Whether the Tribunal is justified in taking the disability at 40% when Ex.P10 and the Doctor, who examined the claimant has stated on oath that the claimant has suffered 70% permanent disability under the facts and circumstances of the present case? 3. Whether the Tribunal is justified in awarding the interest at the rate of 9% p.a. from the date of petition till the date of deposit in view of provisions of Section 4A(3)(a) of the Employee's Compensation Act, 1923? 14. Having heard the learned counsel for the parties, it is undisputed fact that the appellant-claimant has sustained Crush injury of right foot, comminuted fracture of left leg multiple fragmentation and open type II fracture of LS Spain and tenderness and swelling left side thigh and left leg due to the accident occurred on 21.05.2013 arising out of and during the course of employment under respondent No. 1. The same is evidenced from the material documents Exs.P1 to P6 issued by the concerned official Authorities. It is the specific case of PW-1 that he was earning monthly wages at Rs. 6,000/- and bata at Rs. 100/- per day but the Tribunal has proceeded to take the monthly wages of the claimant at Rs. 5,000/- ignoring the fact that the accident has occurred on 21.05.2013 and the amended provisions of Section 4(1B) of the Act, wherein the Central Government has exercised the power under the said Section and has fixed the monthly wages at Rs. 8,000/- with effect from 31.05.2010. Therefore, the Tribunal ought to have taken the monthly wages at Rs. 8,000/- on that ground also impugned judgment and order passed by the Tribunal is liable to be modified. 15. It is also not in dispute that PW-2 the Doctor, who examined PW-1 has issued the Disability Certificate at Ex.P10 and has stated on oath that the claimant is suffering disability of 36% to his left hip and thigh and 34% to left leg and foot totally, 70% permanent disability to his left lower limb. The concerned x-ray films are as per Ex.P36. The concerned x-ray films are as per Ex.P36. The Tribunal ought to have taken at least 50% of loss of earning capacity in view of the evidence of PW-2 and Ex.P10- Disability certificate and also the type of fracture and injuries sustained by the claimant. 16. It is also not in dispute that the accident occurred on 21.05.2013 and the Tribunal has proceeded to award interest at the rate of 9% p.a. which is also contrary to the provisions of Section 4A(3)(a) of the Act and as per the said provisions, the claimant is entitled for interest at the rate of 12% p.a. 17. Taking into consideration that the monthly wages of the claimant is to be taken at Rs. 8,000/- in view of the provisions of Section 4(1B) of the Act and as per the provisions of Section 4(1)(b) of the Act, 60% of wages has to be taken. Then the monthly wages comes to Rs. 4,800/-. Disability is to be assessed at 50% as stated supra and relevant factor would be 192.14. Therefore, it comes to Rs. 4,61,136/- (Rs.4,800/- x 50% x 192.14) would be the loss of future earning capacity. 18. The Tribunal has not awarded any compensation towards medical expenses though the claimant has produced medical bills at Ex.P11 to P24. Therefore, the claimant is entitled to Rs. 13,561/- towards medical expenses and the claimant is also entitled to interest at the rate of 12% p.a. instead of interest at the rate of 9% p.a. as stated supra after one month from the date of the accident. Thus, in all, the claimant is entitled to total compensation of Rs. 4,74,697/- as against Rs. 2,30,600/- awarded by the Tribunal as under:- Towards Loss of earning capacity Rs. 4,61,136/- Towards Medical Expenses Rs. 13,561/- TOTAL Rs. 4,74,697/- 19. For the reasons stated above, first substantial questions of law framed in the present appeal is answered in negative holding that the Tribunal was not justified in assessing the monthly wages of the claimant at Rs. 5,000/- and the monthly wages should be taken at Rs. 8,000/- as stated supra. The second substantial question of law framed is also answered negative holding that the Tribunal was not justified in taking the disability at 40% in view of the evidence of PW-2 the Doctor and Ex.P10-Disability Certificate. 5,000/- and the monthly wages should be taken at Rs. 8,000/- as stated supra. The second substantial question of law framed is also answered negative holding that the Tribunal was not justified in taking the disability at 40% in view of the evidence of PW-2 the Doctor and Ex.P10-Disability Certificate. Taking into consideration of the fractures and injuries sustained by the claimant and in view of the evidence of PW-2 and Ex.P10 Disability certificate, this Court is of the considered opinion that at least 50% has to be taken as disability in view of provisions under Section 4(1)(c)(ii) of the Act. The Third substantial question of law framed is also answered negative holding that the claimant has proved that the accident has occurred arising out of and during the course of employment, the Tribunal ought to have awarded interest at the rate of 12% p.a. as contemplated under the provisions of Section 4A(3)(a) of the Act. 20. In view of the above, the appeal is allowed-in-part and the impugned judgment and order is hereby modified. The claimant is entitled for a total compensation of Rs. 4,74,697/- as against Rs. 2,30,600/- awarded by the Tribunal. The enhanced compensation would come to Rs. 2,44,097/- with interest at the rate of 12% p.a. after one month from the date of the accident. Ordered accordingly.