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Karnataka High Court · body

2019 DIGILAW 1997 (KAR)

GUNDA v. K. GOPALKRISHNA SHERIGAR

2019-09-11

B.VEERAPPA

body2019
JUDGMENT : 1. The claimant filed the present appeal for enhancement as against the judgment and award dated 03.12.2016 made in ECA.No.50/2014 on the file of the Senior Civil Judge at Kundapura/Tribunal awarding total compensation of Rs.90,130/- with 12% interest after one month from the date of the accident. 2. It is the case of the claimant that on 15.09.2012 at about 7.50 a.m., during the course of his employment under the first respondent, the petitioner was driving the bus bearing registration No.KA-16-A-1679 from Kundapura to Trasi side, when the said bus reached a place near Jaladi Anganavadi, Hemmadi Village, N.H.66, Kundapura Taluk, the bus met with an accident. Due to the said accident, claimant sustained grievous injuries. Immediately after the accident, the claimant was shifted to Chinmayi Hospital, Kundapura, wherein he was admitted as inpatient and surgery was conducted and he has spent Rs. 1,00,000/- towards medical expenses. The accident occurred arising out of and during the course of his employment under the first respondent and the first respondent used to pay monthly wages at Rs.7,000/- per month and Batta of Rs.75/- per day. The first respondent is the owner and the second respondent is the insurer. Both are jointly and severally liable to pay the compensation. 3. The first respondent did not appear before the Tribunal in spite of service of notice. The second respondent appeared and filed the objections, denied the averments made in the claim petition and contended that there is no employer - employee relationship between the claimant and the first respondent and also denied the injuries sustained and further contended that he insured with first respondent and liability if any is governed by the terms, conditions and limitations as use of the policy of insurance issued by the second respondent and further contended that the accident occurred due to the negligence on the part of the claimant. Therefore, sought to dismiss the claim petition. 4. Based on the aforesaid pleadings, the Commissioner, Workmen Compensation/Tribunal framed the following issues: 1. Whether the petitioner proves that he was an employee under Workmen's Compensation Act? 2. Whether the petitioner proves that petitioner sustained injuries during the course of employment under 1st respondent as a driver in bus bearing Reg. No.KA-16-A-1679 in the alleged accident? 3. 4. Based on the aforesaid pleadings, the Commissioner, Workmen Compensation/Tribunal framed the following issues: 1. Whether the petitioner proves that he was an employee under Workmen's Compensation Act? 2. Whether the petitioner proves that petitioner sustained injuries during the course of employment under 1st respondent as a driver in bus bearing Reg. No.KA-16-A-1679 in the alleged accident? 3. Whether the petitioner proves that how much salary he is getting per month from respondent No.1 and what is the age of the petitioner on the date of the accident? 4. Whether the petitioner proves that he has suffered future earning capacity due to the accidental injuries? 5. Whether the petitioner is entitled for compensation as prayed? 6. What Order or Award? 5. In order to establish his case, the claimant examined as PW-1 and examined doctor as PW-2 and marked documents Ex.P1 to Ex.P7. The respondent -insurance company has not adduced any oral or documentary evidence. 6. The Tribunal considering both the oral and documentary evidence on record, recorded a finding that the claimant has proved that he was an employee under the first respondent and the accident occurred and the claimant sustained grievous injuries arising out of and during the course of the employment and also proved the monthly wages, age and loss of earning capacity. Accordingly, the Tribunal proceeded to award total compensation of Rs.90,130/- with interest at the rate of 12% after one month from the date of the accident. Hence, the present appeal is filed for further enhancement. The insurance company has not filed any appeal against the impugned judgment and award. 7. This Court admitted the appeal to consider the following substantial question of law: 1. Whether the Commissioner, Employees Compensation/Tribunal is justified in taking disability at the rate of 12% ignoring the evidence of doctor - PW-2 in view of the provisions of Section 4[1]C[ii] of the Act? 2. Whether the Commissioner, Employees Compensation/Tribunal is justified in denying the medical expenses to the claimant when the accident occurred in 2012 in view of the provisions of Section 4[2A] of the Employees Compensation Act, 1923? 8. 2. Whether the Commissioner, Employees Compensation/Tribunal is justified in denying the medical expenses to the claimant when the accident occurred in 2012 in view of the provisions of Section 4[2A] of the Employees Compensation Act, 1923? 8. Sri.Sandesh Shetty.T, learned counsel for the claimant contended that the Tribunal erred in taking the disability of the claimant at 12% ignoring the evidence of the PW-2 - Doctor who stated on oath that the claimant has suffered 16% disability to the entire whole body and the Tribunal ought to have taken 16% in view of the provisions of Section 4[1]C][[ii] of the Employees Compensation Act ('Act' for short). He further contended that the Tribunal has not awarded any compensation towards medical expenses ignoring the provisions of Section 4[2A] of the Act and the claimant is entitled to the compensation of medical bills as per Ex.P4, a sum of Rs. 13,725/-, the same has not been considered. Therefore, he sought to allow the appeal. 9. Per contra, learned counsel Sri.P.S.Jagadish, for the learned counsel Sri.P.B.Raju, appearing for the respondent No.2 sought to justify the judgment and award and contended that the Tribunal taking into consideration entire evidence and the injuries sustained by the claimant was of the considered view that the disability only 12% and accordingly the Tribunal rightly justified in taking the disability of 12%. The same is in accordance with law, this Court cannot interfere with the finding recorded by the Tribunal exercising Section 30 of the Act and sought for dismissal of the appeal. 10. Having heard the learned counsel for the parties, it is an undisputed fact that the claimant who is the driver and sustained the following injuries: 1. Laceration of the right side head, 2. Laceration of the right forearm 3. Laceration of the back and elbow 4. Riught knee swollen and tenderness, ACL tear, arising out of and during the course of the employment. 11. There is no dispute with regard to monthly wages of the claimant. In order to prove the injuries sustained in the road accident, the claimant examined PW-2 - Doctor who stated on oath that as per Ex.P3 -wound certificate, Ex.P7 and Ex.P8 - X-rays and Ex.P9 - Disability certificate, clearly depicts that the claimant has suffered permanent disability of 16% to the right lower limb. In order to prove the injuries sustained in the road accident, the claimant examined PW-2 - Doctor who stated on oath that as per Ex.P3 -wound certificate, Ex.P7 and Ex.P8 - X-rays and Ex.P9 - Disability certificate, clearly depicts that the claimant has suffered permanent disability of 16% to the right lower limb. The Tribunal ignoring the wound certificate and the evidence of doctor, proceeded to take disability only 12% which is against the provisions of Section 4[1][c][ii] of the Act wherein it is clearly stated by the Legislature that the disability 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. Admittedly in the present case, qualified medical practitioner stated on oath that the claimant has sustained permanent disablement is 16%. The Tribunal ought to have been taken the same instead of 12%. 12. The material on record clearly depicts that the accident occurred on 15.09.2012. The PW-2 specifically stated on oath that he has spent more than Rs. 1,00,000/- for medical expenses. But, as could be seen from Ex.P4 - medical bills [5 Nos] produced by the claimant clearly depicts that the amount is only Rs. 13,725/-. In view of the amended provisions of Section 4[2A] of the Act came into force with effect from 18.01.2010 by Act No.45/2009, the employee shall be reimbursed the actual medical expenditure incurred by him for treatment of injuries caused during the course of employment. The Tribunal has not awarded any compensation towards medical expenses. 13. For the reasons stated above, the substantial questions of law in the present appeal has to be held in Negative holding that the Commissioner, Workmen Compensation/Tribunal is not justified in taking 12% instead of 16% as stated by the PW-2 - Doctor and the Tribunal also not justified in denying the claimant for medical expenses. 14. If we take the monthly wages of the claimant at Rs.8,000/-, 60% has to be considered in view of Section 4[1b] of the Act, taking into consideration the age of the claimant, relevant factor would be 156.47 and Rs. 1,20,168/- would be the compensation and the claimant is also entitled for medical bills as per Ex.P4 at Rs. 13,725/-. The total compensation is Rs. 1,20,168/- would be the compensation and the claimant is also entitled for medical bills as per Ex.P4 at Rs. 13,725/-. The total compensation is Rs. 1,33,893/-with 12% interest after one month from the date of the accident till realization. 15. For the reasons stated above, the appeal filed by the claimant is allowed in part. The impugned judgment and award made in ECA.No.50/2014 is hereby modified. The claimant is entitled for total compensation of Rs. 1,33,893/-with 12% interest after one month from the date of the accident till realization.