Partly allowed

M/S Iffco Tokio General Insurance Co. Ltd. v. Sri Syed Irfan

Karnataka HC26 Nov 2020MFA/2150/2011

Case brief

AI extract

What is this about?

The High Court modified an award by the Workmen's Compensation Commissioner. It held the assessment of permanent disability at 30% was erroneous under the Act and reduced the compensation. The Court also awarded statutory interest of 12% per annum as the insurer failed to deposit the amount immediately.

What did the court decide?

The compensation was reduced from Rs. 1,41,883 to Rs. 71,000. Interest of 12% per annum was awarded from 13.06.2008 until deposit.

M/S Iffco Tokio General Insurance Co. Ltd… — Pension and Retirement Benefits | Karnataka HC (2020)

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M.F.A.No.2150/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL No.2150/2011 (WC)

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BETWEEN:

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M/S. IFFCO TOKIO GENERAL INSURANCE CO. LTD., NO.8, 3^RD FLOOR, 3^RD BLOCK KSCMF BUILDING CUNNINGHAM ROAD BANGALORE – 560 052 REP. BY ITS MANAGER/ HEAD-CUSTOMER SERVICE CENTRE …APPELLANT (BY SRI D.VIJAYAKUMAR, ADVOCATE)

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AND:

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SRI SYED IRFAN S/O SRI SYED REHMATHULLAH AGED ABOUT 36 YEARS R/AT KEREBILACHE VILLAGE CHANNAGIRI TALUK DAVANGERE DISTRICT

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SRI SYED MUKTHIYAR S/O SRI SYED MAJID SAB OCC:OWNER OF LUGGAGE AUTO NO.KA-17/A-6352 R/AT KEREBILACHE VILLAGE CHANNAGIRI TALUK DAVANGERE DISTRICT …RESPONDENTS

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(BY SRI HARISH N.R.FOR SRI B.M.SIDDAPPA, ADVOCATES FOR R1; R2 SERVED AND UNREPRESENTED)

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M.F.A.No.2150/2011

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THIS MFA IS FILED UNDER SECTION 30 (1) OF WORKMEN’S COMPENSATION ACT, 1923 PRAYING TO SET ASIDE THE JUDGMENT DATED 18.11.2010 PASSED BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN’S COMPENSATION, DAVANAGERE DISTRICT, DAVANAGERE IN KAADA/KAANAPA/CR-163/2008.

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THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT THROUGH PHYSICAL HEARING DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard.

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This insurer’s appeal arises out of the award dated 18.11.2010 in Kaada/Kaanapa/CR-163/2008 passed by the Workmen’s Compensation Commissioner (‘the Commissioner’ for short) Davanagere.

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By the impugned award, the Commissioner has awarded compensation of Rs.1,41,883/- with interest to respondent No.1.

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In the proceedings before the Commissioner, respondent No.1 was the claimant, respondent No.2 was respondent No.1 and the appellant was respondent No.2. For the purpose of convenience, the parties will be

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M.F.A.No.2150/2011

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referred to henceforth with their ranks before the Commissioner.

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On 13.05.2008 at about 4.15 p.m. while the claimant was driving the luggage auto bearing No.KA-17A-6352 near Chowdeshwari Temple, Chickjajur road within the limits of Holalkere police station, the said vehicle met with an accident. Respondent No.1 was the registered owner and respondent No.2 was the insurer of the said vehicle.

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Regarding the accident, one H.Halaswamy filed the complaint. On that basis the first information report in Crime No.178/2008 of Holalkere police station as per Ex.P3 was registered against the claimant. Holalkere police charge sheeted the claimant as per Ex.P2 for the offences punishable under Sections 279 and 338 of IPC.

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The claimant filed the claim petition before the Commissioner under Section 22 of the Workmen’s Compensation Act, 1923 (‘the Act’ for short) claiming that at the time of the accident, he was employed by

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M.F.A.No.2150/2011

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respondent No.1 as driver in luggage auto bearing No.KA-17-A-6352 and the accident arose out of and during the course of employment. He further claimed that due to the injuries suffered in the accident, he had suffered permanent disability resulting in the loss of earning capacity. Thus he claimed compensation as per the Act from both the respondents.

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Respondent No.1 did not contest the petition. Respondent No.2 contested the claim petition on all the grounds.

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In support of the claim, the claimant got examined himself and one Dr.D.M.Nagabhushan. On behalf of respondent No.2, the oral evidence was not adduced.

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The Commissioner after hearing the parties, by the impugned award held that there was jural relationship between the claimant and respondent No.1 and the accident arose out of and during the course of employment. Referring to the evidence of the doctor, the

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M.F.A.No.2150/2011

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Commissioner held that due to the injuries suffered by the claimant, he suffered 30% physical disability and equivalent loss of earning capacity. The Commissioner assessed the wages at Rs.4,000/- per month, age of the claimant at 35 years, applied 197.06 factor and awarded the compensation of Rs.1,41,883/- payable by the insurer.

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Aggrieved by the said award, the insurer has preferred the above appeal. This Court admitted the appeal to consider the following substantial question of law:

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“In considering the loss of earning capacity at 30%, whether the Commissioner acted contrary to Sections 2(1)(g) and 4(1)(c) of the Employee’s Compensation Act, 1923?”

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To prove the permanent physical disability, the claimant relied upon Ex.P1 the wound certificate, Ex.P10 the disability certificate, Ex.P11 the X-ray and the evidence of Dr.D.M.Nagabhushan. The doctor who issued Ex.P1 was not examined. As per the said documents, the claimant suffered fracture of tibia and fibula, tenderness

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M.F.A.No.2150/2011

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over upper 1/3^rd portion of right foreleg, tenderness over right ankle joint area.

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As per Ex.P10 the disability certificate and the evidence of Dr.D.M.Nagabhushan, the said doctor examined the claimant on 23.03.2009, but the accident had occurred on 13.05.2008. The doctor in his evidence states that there was fracture of tibia and fibula on right foot and right ankle fracture which amounts to 40% permanent disability. When it was suggested to him that the physical disability to the whole body would be less than 40%, he said that it gets reduced by 10%. Acting upon that, the Commissioner assessed the permanent physical disability at 30%.

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It is not even the case of the claimant that he suffered total disability. Section 2(1)(g) of the Act which deals with partial disablement reads as follows:

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“2(1)(g) “partial disablement” means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a employee in any employment in which he was engaged at the time of the accident resulting in the

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M.F.A.No.2150/2011

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disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time:

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Provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement”.

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In this case, the injuries mentioned in Ex.P1 or spoken to by the doctor do not fall under Schedule I of Act. Section 4(1)(c) of the Act states that where the injury causes permanent disablement, in case of injury not specified in Part II of Schedule I, such percentage of the compensation payable in cases of permanent total disablement is proportionate to the loss of earning capacity as specified by the medical practitioner.

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In the case on hand, the doctor had not stated

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about the loss of earning capacity or functional disability. Therefore, the Commissioner was not justified in holding that there was loss of earning capacity upto 30%. Similarly when there was fracture of tibia, fibula and ankle joint, the assessment of disability at 30% to the whole body was on higher side. It should have been 1/3^rd of the

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M.F.A.No.2150/2011

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said disability to the whole body. Even if taken at that rate, it comes to 15%.

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Having regard to the monthly wages and the age of the employee considered by the Commissioner, the compensation payable to the claimant comes to 2,400 x 196.06 x 15%= Rs.70,581.06 which shall be rounded to 71,000/-.

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The above discussions show that the Commissioner acted contrary to Sections 2(1)(g) and Section 4(1)(c) of the Act in assessing the loss of earning capacity at 30%.

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At this stage, Sri D.Vijayakumar, learned Counsel for the claimant submits that the Commissioner has not awarded statutory interest as per Section 4A(3) of the Act and seeks modification of the award.

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As per Section 4A(3) of the Act, in case, the employer has not deposited the compensation, it is mandatory for the Commissioner to award interest at 12% per annum. The substantial question of law is answered accordingly.

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M.F.A.No.2150/2011

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The appeal is partly allowed. The impugned award dated 18.11.2010 in Kaada/Kaanapa/CR-163/2008 passed

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by the Workmen’s Compensation Commissioner, Davanagere is hereby modified. The compensation award of Rs.1,41,883/- is reduced to Rs.71,000/- with interest thereon at 12% from 13.06.2008 till the date of deposit.

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The amount in deposit shall be disbursed to respondent No.1 herein as per the modified award and the balance amount shall be refunded to the appellant.

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Sd/JUDGE

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KSR

M/S Iffco Tokio General Insurance Co. Ltd. v. Sri Syed Irfan

Case brief

What is this about?

What did the court decide?

M/S Iffco Tokio General Insurance Co. Ltd. v. Sri Syed Irfan

Case brief

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What did the court decide?

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