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Karnataka High Court · body

2019 DIGILAW 1996 (KAR)

R. CHANDRA v. GOWRI

2019-09-11

B.VEERAPPA

body2019
JUDGMENT : 1. MFA No. 1964/2016 filed by the claimant for enhancement. MFA No.597/2016 is filed by the insurance company for reduction of compensation amount. 2. These two appeals are filed by the claimant for enhancement and insurance company for reduction and on liability against the judgment and award dated 21.11.2015 made in ECA No.171/2014 on the file of the Commissioner, Employee's Compensation/Tribunal awarding total compensation of Rs.4,12,900/- with 12% interest from the date of the accident till realization. 3. The claimant filed the claim petition under Section 22 of the Employees Compensation Act, claiming compensation for the injuries sustained on account of road accident occurred on 04.12.2011. It is the case of the claimant that the first respondent is the owner of the Tempo Traveler bearing registration No.KA-05-AB-4869 and same was insured with the second respondent and he was working under the first respondent on monthly wages of Rs.8,000/- per month. 4. On 04.12.2011 at about 2.30 am, when the claimant was driving the said Tempo Traveler on Salem-Namkala Road, NH-7, while proceeding near Spinning Mill, Sathanur Deviation, Namkal District, Tamil Nadu, he dashed against the lorry bearing registration No.TN-55-H-8947 which was coming from opposite direction and as a result of which, he sustained grievous injuries. Immediately, he was shifted to Government Hospital, Salem, after first aid treatment, he was shifted to Manipal Hospital, Salem and then to KIMs Hospital Bengaluru, wherein he was treated as an inpatient and incurred huge amount towards medical expenses and the accident occurred arising out of and during the course of employment. Therefore, he sought to total compensation of Rs. 15,00,000/-. 5. In response to the summons issued, first respondent did not appear and placed ex-parte. The second respondent filed objections and denied the averments made in the claim petition and admitted that the offending vehicle - Tempo Traveler was insured with him and insurance policy was in force as on the date of the accident and further denied the injuries sustained and the relationship of the employee and employer and also denied the wages claimed by the claimant and sought for dismissal of the claim petition. 6. Based on the aforesaid pleadings, the Commissioner, Employee's Compensation/Tribunal framed the following issues: 1. Whether the petitioner proves that he comes within the purview of the work 'employee' under the provisions of the Employees Compensation Act? 2. 6. Based on the aforesaid pleadings, the Commissioner, Employee's Compensation/Tribunal framed the following issues: 1. Whether the petitioner proves that he comes within the purview of the work 'employee' under the provisions of the Employees Compensation Act? 2. Whether the petitioner proves that the injury caused to him was during the course of his employment under the respondents? 3. Whether the petitioner proves his age and income? 4. Whether the petitioner proves that alleged injury caused to him in the incident dated: 04.12.2011 at about 2.30 a.m., near Spinning Mill Sathanur Division, Namkal Dist., Tamil Nadu? 5. Whether the petitioner is entitled for compensation? If so, how much, from whom? 6. What order? 7. In order to establish the case of the claimant, the claimant examined as PW-1 and doctor -PW-2 and marked the documents Ex.P1 to Ex.P15. The insurance company has not adduced oral or documentary evidence. 8. The Commissioner, Employee's Compensation/Tribunal considering both the oral and documentary evidence on record, recorded a finding that the claimant proved that he comes within the purview of employee under the provisions of Employees Compensation Act and proved that the accident occurred arising and during the course of employment under the first respondent. He also proved the monthly wages and the income and accordingly, the Commissioner, Employee's Compensation/Tribunal by the impugned judgment and award has proceeded to award the total compensation of Rs.4,12,900/- with 12% interest from the date of the accident till realization. Hence, the present appeals are filed by the claimant for enhancement and insurance company for reduction and on liability. 9. This Court while admitting these appeals, framed the following substantial questions of law: In MFA. No. 1964/2016: 1. "Whether the Tribunal is justified in taking the monthly wages of the claimant of Rs.6000/- when the accident occurred on 04.12.2011 in view of the provisions of sub-Section 1B of Section 4 of the Act?" InMFA.No.597/2016: 1. "Whether the Commissioner, Employee's Compensation/Tribunal is justified in taking the monthly wages while taking into the relevant factor ignoring the provisions of Section 4[1B] of the Act? 2. Whether the Commissioner, Employee's Compensation/Tribunal is justified in fastening the liability on the insurance company when the claimant was not holding the driving license and there was no relationship of employer and employee?" 10. I have heard the learned counsel appearing for the parties to the lis. 11. 2. Whether the Commissioner, Employee's Compensation/Tribunal is justified in fastening the liability on the insurance company when the claimant was not holding the driving license and there was no relationship of employer and employee?" 10. I have heard the learned counsel appearing for the parties to the lis. 11. Sri.Shripad V. Shastri, learned counsel for the claimant contended that the Commissioner, Employee's Compensation/Tribunal ignoring the evidence of PW-1 proceeded to take the monthly wages of Rs.6,000/- when the accident occurred on 04.12.2011 and the Commissioner, Employee's Compensation/Tribunal ought to have been taken monthly wages of the claimant at Rs.8,000/- in view of the notification issued by the Central Government dated 31.05.2010 exercising the powers conferred by sub-Section 1[b] of Section 4 of the Employees Compensation Act wherein the Central Government specified Rs.8,000/- as monthly wages. Therefore, he sought to allow the Miscellaneous First Appeal No.1964/2016. 12. Sri.Pradeep, learned counsel appearing for the respondent No.2 and appellant in the insurance company's appeal contended that the Commissioner, Employee's Compensation/Tribunal while taking the monthly wages of Rs.6,000/-, he has not deducted the amount as contemplated under the provisions of Section 4[1(b)] of the Act, only 60% of the monthly wages has to be considered and the Commissioner, Employee's Compensation/Tribunal cannot take the entire amount for taking relevant factor while awarding the compensation. He further contended that as on the date of the accident, the claimant was not holding valid driving license. Therefore, the Claims Tribunal has not justified in fastening the entire liability on the insurance company. Therefore, he sought to allow the Miscellaneous First Appeal No.597/2016. 13. Having heard the learned counsel for the parties, it is an undisputed fact that the claimant was driver in the Tempo Traveler bearing registration No.KA-05-AB-4869 under the first respondent and the accident occurred on 04.12.2011 arising out of and during the course of employment. The same is evidenced from the material documents Ex.P1 to Ex.P6 which clearly indicates that the claimant was driving the vehicle and the accident occurred arising out of and during the course of the employment. 14. The Commissioner, Employee's Compensation/Tribunal while considering the material on record, has taken Rs.6,000/- ignoring the fact that the accident occurred on 04.12.2011 after the amendment of sub-Section 1(b) of Section 4 of the Act, wherein the Central Government by issuing notification dated 31.05.2010 specified as Rs.8,000/-. 14. The Commissioner, Employee's Compensation/Tribunal while considering the material on record, has taken Rs.6,000/- ignoring the fact that the accident occurred on 04.12.2011 after the amendment of sub-Section 1(b) of Section 4 of the Act, wherein the Central Government by issuing notification dated 31.05.2010 specified as Rs.8,000/-. Therefore, the Commissioner, Employee's Compensation/Tribunal was not justified in taking monthly wages of the claimant as Rs.6,000/-. Very strangely taken Rs.6,000/- while calculating compensation and proceeded to award compensation ignoring the provisions of Section 4[1(b)] of the Act. 15. If we take monthly wages of the claimant at Rs.8,000/-, only 60% has to be considered as his income in view of the provisions of Section 4[1b)] of the Act. PW-2 - doctor examined by the claimant has stated on oath that as per the Ex.P4 - wound certificate, Ex.P7 - discharge summary, Ex.P14 - case sheet and Ex.P15 -X-rays with report clearly goes to show that the claimant has sustained Post traumatic fracture shaft of both femur with compound Bi condylar fracture of right tibia with fracture of right ulna and fracture of right para symphysis mandibular body. and further stated on oath that the claimant has suffered physical impairment at 22.27% to the whole body and also stated that the claimant is having difficulty to sit, stand, in climbing stairs, squatting, kneeling and driving the vehicles, lifting weight and difficulty to do day routine work. The Commissioner, Employee's Compensation/Tribunal proceeded to take disability only 20% which is contrary to the provisions of Section 4(1)(b), (c)(ii) of the Act. 16. If we take monthly wages of the claimant at the rate of Rs.4,800/- as contemplated with relevant factor, the compensation would be Rs.2,08,095/-. The Tribunal proceeded to award total compensation of Rs. 1,76,400/- as per Ex.P9 - medical bills. The total compensation would be Rs.3,84,495/-. 17. Though Sri.Pradeep, learned counsel for the insurance company contended that the claimant was not holding the driving license as on the date of the accident. Unfortunately, the insurance company has not produced any contra-evidence or produced any material documents to disprove the evidence of PW-1. 18. Sri.Shripad V. Shastri, learned counsel for the claimant has produced a memo along with the driving license of the claimant issued by the licensing authority dated 08.10.1997 which was valid till 07.10.2017 which clearly depicts that as on the date of the accident, the claimant was holding valid driving license. 18. Sri.Shripad V. Shastri, learned counsel for the claimant has produced a memo along with the driving license of the claimant issued by the licensing authority dated 08.10.1997 which was valid till 07.10.2017 which clearly depicts that as on the date of the accident, the claimant was holding valid driving license. Therefore, the contentions of the learned counsel for the insurance company cannot be accepted. 19. In view of the aforesaid reasons, taking into consideration the provisions of Section 4(1)(b), 4(1)(c)(ii) of the Act, compensation payable to the claimant is Rs.2,08,095/- plus Rs. 1,76,400/-, in all Rs.3,84,495/-. 20. For the reasons stated above, the substantial question of law framed in the appeal filed by the claimant is answered in negative holding that the Tribunal is not justified in taking the monthly wages of Rs.6,000/- and the claimant is entitled for monthly wages of Rs.8,000/-. 21. In view of the above, the first substantial question of law framed in the appeal filed by the insurance company, the Commissioner, Employee's Compensation/Tribunal was not justified in taking income as Rs.6,000/- for calculating, is without deduction under Section 4(1) (b) of the Act and the second substantial question of law framed in the appeal by the insurance has to be held in affirmative holding that the Tribunal was justified in awarding compensation in view of the fact that the claimant was holding effective driving license as on the date of the accident in view of the memo filed by the claimant along with documents produced before this Court. 22. For the reasons stated above, both the appeals filed by the claimant and insurance company are allowed in part. The impugned judgment and award passed by the Commissioner, Employee's Compensation/Tribunal is modified. The claimant is entitled to total compensation of Rs.3,84,495/- with interest at 12% after one month from the date of accident till realization. 23. Registry is directed to transmit the entire amount deposited by the insurance company to the Commissioner, Employee's Compensation/Tribunal forthwith and the Commissioner, Employee's Compensation/Tribunal shall pay the compensation amount with interest at 12% to the claimant, after one month from the date of accident till realization, after proper identification and refund the excess amount, if any to the insurance company in accordance with law.