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Karnataka High Court · body

2022 DIGILAW 634 (KAR)

Rafiq Pasha v. G. Srinivasa

2022-05-17

J.M.KHAZI

body2022
JUDGMENT 1. Not being satisfied with the quantum of compensation granted vide the impugned Judgment and order dated 28.02.2013 in 5/2011 on the file of Labour Officer and Commissioner for Employees' Compensation (hereinafter referred to as 'CEC'), petitioner has come up with this appeal under Section 30 of Workmen's compensation Act, 1923 (hereinafter referred to as 'Act'). 2. For the sake of convenience the parties are referred to by their rank before the CEC. 3. Petitioner filed the claim petition before the CEC under Section 22 of the Act, seeking compensation for the injuries sustained by him as driver of Goods canter vehicle bearing registration No.KA-02/AB-7322 (herein after referred to as offending vehicle), contending that the said injuries were sustained by him in an accident arising out of and in the course of employment of respondent No.1. 4. FACTS: Brief facts leading to the filing of the claim petition are that petitioner was working as a driver under respondent No.1 in the offending vehicle on salary of Rs.8,000/-p.m. The offending vehicle was covered by a valid policy issued by respondent No.2 covering the period from 03.10.2007 to 02.10.2008. On 01.04.2008, while he was proceeding in the offending vehicle on NH-7, near Electrical Sub Station, Veldurthi P.S. Ltd, Kurnool District, the offending vehicle met with an accident. In the said accident, he suffered grievous injuries. Initially he took treatment at Government Hospital, Kurnool and shifted to St.John's Medical College Hospital on 02.04.2008. During the treatment his right hand was amputed and implants were inserted to his right leg. Even after discharge, he continued to take treatment. On account of permanent partial disability, petitioner has suffered loss of income. He is entitled for compensation in a sum of Rs.15,00,000/- with interest. 5. After due service of notice, respondent No.1 appeared and filed written statement admitting that there exists relationship of employer and employee between him and the petitioner on salary of Rs.8,000/-p.m. He has also admitted that petitioner met with an accident arising out of and in the course of his employment with respondent No.1. As on the date of accident, petitioner was holding a valid and effective driving license and the offending vehicle was covered by a valid policy and as such respondent No.2 is liable to pay the compensation. 6. Respondent No.2 has filed written statement disputing the coverage of the offending vehicle and its liability to indemnify respondent No.1. As on the date of accident, petitioner was holding a valid and effective driving license and the offending vehicle was covered by a valid policy and as such respondent No.2 is liable to pay the compensation. 6. Respondent No.2 has filed written statement disputing the coverage of the offending vehicle and its liability to indemnify respondent No.1. Its liability if any is subject to the terms and conditions of the policy. The relationship of employer and employee between respondent No.1 and petitioner and that he was paid salary of Rs.8,000/- p.m. and that on 01.04.2008 he was engaged by respondent No.1 to drive the offending vehicle are denied. It is denied that petitioner sustained injuries in an accident dated 01.04.2008 during the course of his employment and sustained severe injuries resulting in permanent partial disability affecting the earning capacity of the petitioner. At the time of alleged accident, petitioner was not holding a valid and effective driving license and the offending vehicle was not having valid permit and as such respondent No.2 is not liable to indemnify respondent No.1 and prays to dismiss the petition. 7. Based on these pleadings necessary issues were framed by the CEC. 8. In support of his case, petitioner got himself examined as PW-1 and got marked Ex-P1(1) to (13). He has examined the Doctor as PW-2, got marked Ex.P2(1) and (2) and one more witness as PW-3 and got marked Ex.P3 (1) to (4). 9. On the other hand on behalf of respondent No.2, RW-1 is examined and Ex-R2 (1) to (4) are marked. 10. Respondents have not led any evidence before CEC. 11. After hearing arguments of both sides, vide the impugned judgment and order, the CEC has partly allowed the petition and granted compensation in sum of Rs.2,61,351/- with interest at 7.5% from the date of petition till the date of order i.e., 28.03.2013 and from 29.03.2013 at 12% p.a. till the deposit is made and directed respondent No.2 to pay the same. 12. Being aggrieved by the impugned judgment and order, petitioner has come up with this appeal contending that the CEC has erred in not considering the disability as 90% and having failed to reimburse the actual medical expenses incurred by him. The CEC has also erred in granting interest at 7.5% instead of 12%. The CEC has also not properly adopted the fractions for assessing loss of earning capacity. The CEC has also erred in granting interest at 7.5% instead of 12%. The CEC has also not properly adopted the fractions for assessing loss of earning capacity. 13. Based on the grounds urged by the petitioner, vide order dated 16.03.2021, this Court has framed the following substantial questions of law: i. Whether the injury sustained by the claimant fall under Schedule-I part II of Workmen Compensation Act, 1923 ? ii. Whether the order/award of the Commissioner is otherwise opposed to law, material evidence placed on record ? 14. Heard arguments and perused the record. 15. My findings on the substantial question of law are: SQL.No.(i): Partly in the Affirmative SQL.No.(ii):In the Affirmative 16. Substantial Question of Law Nos (i) & (ii): Since these two substantial questions of law involve common discussion, the same are considered together. 17. Though respondent No.2 has disputed that the relationship of employer and employee exists between respondent No.1 and the petitioner, it has not challenged the impugned judgment and order and thereby the findings to the effect that there exists relationship of employer and employee between them and that the petitioner was injured in an accident arising out of and in the course of employment has attained finality. The CEC has accepted the evidence of PW-2 that on account of amputation of right hand, the petitioner has sustained 90% disability of the right upper limb and it is 40% of the whole body and so far as lower limb he has sustained 28% disability and it is 14% of the whole body and thereby the total disability suffered by the petitioner is 54%. 18. As per Section 4(1)(b) of the Employees Compensation Act, 1923, in case of permanent total disability, the maximum compensation that could be granted is 60% of the monthly wages multiplied by the relevant factor. In other words, in case of permanent partial disability, the compensation that could be granted cannot exceed 60% of the wages, as that is the maximum compensation that could be granted in case of permanent total disability. Though respondent No.1 has pleaded that he used to pay salary of Rs.8,000/- to the petitioner in addition to the batta, having regard to the fact that the incident is dated 01.04.2008, as per Section 4(1B) of the Employees Compensation Act, 1923, the wages that is required to be taken into consideration is Rs.4,000/-. Though respondent No.1 has pleaded that he used to pay salary of Rs.8,000/- to the petitioner in addition to the batta, having regard to the fact that the incident is dated 01.04.2008, as per Section 4(1B) of the Employees Compensation Act, 1923, the wages that is required to be taken into consideration is Rs.4,000/-. In case of permanent total disability, 60% of this amount is to be taken into consideration which comes to Rs.2,400/-. As per the driving license of the petitioner at Ex.P1(7), he was born on 10.05.1975 and therefore, the CEC has taken the age of the petitioner as 33 years and consequently, the relevant factor is 201.66. Taking into consideration these components, the CEC has calculated the compensation payable to the petitioner as 2,400 x 201.66 = Rs.4,83,984/-. Since this is the maximum which could be granted in case of permanent total disability, 54% of is 4,83,984 x 54% = Rs.2,61,351/- and accordingly the CEC has calculated the compensation payable to the petitioner as Rs.2,61,351/-. 19. As per Section 4 of the Employees Compensation Act, 1923, if the injury suffered by the petitioner results in permanent partial disability and if such injury is specified in Part-II of Schedule-I, such percentage of disability is to be taken into consideration for calculating the compensation payable. Only in case the injury suffered is not specified in Part-II of Schedule-I, then the percentage of the compensation payable is to be assessed as per the disability calculated by the Medical Practitioner. As evident from substantial question of law No.(i), it is to be examined whether the injury sustained by the petitioner falls under Part-II of Schedule-I of the Employees Compensation Act, 1923. From the documents placed on record which is corroborated by the testimony of PW-2, the right hand of the petitioner is amputed above the elbow level. As per Part-II of Schedule-I, Sl.No.2, the amputation of upper arm below the shoulder with stump less than 20.32 cms from the tip of Acromion, the disability would be 80%. In the present case, the amputation of the right hand of the petitioner is though above the elbow level, it is not with stump less than 20.32 cms and therefore it does not fall under Sl.No.2. In the present case, the amputation of the right hand of the petitioner is though above the elbow level, it is not with stump less than 20.32 cms and therefore it does not fall under Sl.No.2. However, Sl.No.3 of Part-II of Schedule-I relates to amputation of the upper limb from 20.32 cms from the tip of Acromion to less than 11.43 cms below the tip of Olecranon. In that case the disability comes to 70%. So far as amputation of right upper limb, the case of the petitioner falls under this category i.e. Sl.No.3. The amputation is in between 20.32 cms from the tip of Acromion to less than 11.43 cms below the tip of Olecranon. Therefore, the disability so far as the right upper limb is concerned is to be taken as 70%. 20. As evident from the testimony of PW-2 and as accepted by the CEC, the petitioner has also suffered closed fracture (Rt) femur and on account of the same, he walks with a limp restriction of joint moment (Rt) hip. There is difficulty for him to stand, fold his leg, climb the steps and consequently, the lower limb disability is calculated at 28% and it comes to 14% so far as the whole body disability is concerned. Therefore, in addition to petitioner having suffered 70% disability so far as his right upper limb is concerned, he has sustained 14% whole body disability so far as right lower limb is concerned. Therefore, the total disability suffered by the petitioner comes to 84%. Consequently, the compensation is required to be calculated by taking the disability at 84%. 21. As rightly held by the CEC, since the accident is dated 01.04.2008, the income of the petitioner is required to be taken at Rs.4,000/-. Since the maximum compensation that could be granted in case of permanent total disability is 60%, calculation is required to be made by taking 60% of the salary which comes to Rs.2,400/- p.m. As on the date of accident, petitioner was aged 33 years and therefore, the relevant factor to be taken into consideration is 201.66. With these components, the total compensation payable in case of permanent total disability is 2,400 x 201.66 = Rs.4,83,984/-. Since the disability suffered by petitioner is calculated at 84%, this compensation is required to be multiplied by 84% i.e., 4,83,984 x 84% = Rs.4,06,546/-. With these components, the total compensation payable in case of permanent total disability is 2,400 x 201.66 = Rs.4,83,984/-. Since the disability suffered by petitioner is calculated at 84%, this compensation is required to be multiplied by 84% i.e., 4,83,984 x 84% = Rs.4,06,546/-. Therefore, petitioner is entitled for compensation in a sum of Rs.4,06,546/-. 22. As per Section 2A, the employee is entitled for reimbursement of the actual medical expenses incurred by him for the treatment of injuries caused during the course of employment. It is pertinent to note that the CEC has not at all granted any compensation towards medical expenses, even though the petitioner has produced number of medical bills. The total amount admissible as per the medical bills at Ex.P1(13) is Rs.1,09,379/-. In addition to compensation for the disability suffered, petitioner is also entitled for compensation in a sum of Rs.1,09,379/-. Thus, in all petitioner is entitled for total compensation in a sum of Rs.5,15,925/-. 23. As per Section 4A (3), the employer is required to make payment within a period of one month from the date it fell due and in case of default, he is liable to pay interest at 12% p.a. However, CEC has granted interest at the rate of 7.5% from the date of petition till the date of his order and 12% from the next date of his order till realization which is incorrect. From the date of accident, within one month the employer is required to deposit the compensation or where he disputes its liability, to the extent claimed he shall be bound to make provisional payment based on the extent of liability which he accepts. In the present case if the employer has deposited any amount, minus the said amount, for the remaining amount he is liable to pay interest at 12% p.a. after expiry of one month from the date on which it fell due. Since in the present case respondent No.2 has covered the risk of respondent No.1, it is liable to pay the compensation with interest at 12% p.a. Accordingly, substantial question of law Nos.(i) and (ii) are answered and I proceed to pass the following: ORDER (i) Appeal filed by the appellant/petitioner is allowed in part. Since in the present case respondent No.2 has covered the risk of respondent No.1, it is liable to pay the compensation with interest at 12% p.a. Accordingly, substantial question of law Nos.(i) and (ii) are answered and I proceed to pass the following: ORDER (i) Appeal filed by the appellant/petitioner is allowed in part. (ii) The impugned judgment and order is modified increasing the compensation to Rs.5,15,925/- with interest at 12% p.a. from the date of expiry of one month on which date the liability fell due, as against Rs.2,61,351/- granted by the CEC. (iii) Respondent No.2 is directed to deposit the compensation together with interest within a period of six weeks (minus the compensation already paid/deposited). (iv) The registry shall transmit the trial Court records to Commissioner for Employees Compensation along with copy of this order.