Partly allowed

Krishna v. Asif

Karnataka HC22 Feb 2021MFA/102171/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, holding that the Trial Court erred in assessing disability at 45%. Relying on Supreme Court precedents, it determined the claimant-driver had 100% functional disability, enhancing compensation from what was originally awarded.

What did the court decide?

Modified award granting additional compensation of Rs.5,63,825/- plus interest at 12% p.a. from 30 days after the accident date.

Krishna Vs Asif — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF FEBRUARY 2021

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PRESENT

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THE HON’BLE MR. JUSTICE G.NARENDAR

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AND

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THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A. NO.102171/2015 (ECA)

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BETWEEN:

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SHRI KRISHNA S/O VITHAL PAMMAR (PARMAR) AGE: 25 YEARS, OCC; DRIVER-NOW NIL, R/O HANUMAN NAGAR, BELAGAVI 590 001.

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…APPELLANT

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(BY SRI.MADANMOHAN M KHANNUR, ADVOCATE)

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AND:

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SHRI ASIF S/O NOORUDDIN SAIT, AGE: MAJOR, OCC: BUSINESS, SAIT TRANSPORT CORPORATION, OPPOSITE INDAL, POONA BENGALURU ROAD, BELAGAVI590 001.

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, THROUGH ITS DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI 590 001.

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…RESPONDENTS

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(BY SRI.M.K.SOUDAGAR, ADVOCATE FOR R2, SRI.S.B.SHAIK, ADVOCATE FOR R1)

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THIS APPEAL IS FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT, 1923 AGAINST THE JUDGMENT AND AWARD DATED 01.07.2015 PASSED IN E.C.A. NO.3/2015 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER UNDER EMPLOYEES COMPENSATION ACT, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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RESERVED FOR JUDGMENT ON : 29.01.2021 JUDGMENT PRONOUNCED ON : 22.02.2021

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, HANCHATE SANJEEVKUMAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed by the claimant calling in question the order passed in E.C.A. No.3/2015 dated 01.07.2015 by the III Additional Senior Civil Judge and Commissioner under Employee’s Compensation Act, Belagavi (hereinafter referred to as ‘Trial Court’ for brevity).

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Brief facts which are necessary for disposal of the appeal are as under:

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It is stated that the appellant-claimant was working as driver under the employment of respondent No.1 in a heavy goods vehicle bearing No.KA-22/A-7942, owned by respondent No.1 and insured with respondent No.2. As per the instructions

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of respondent No.1-owner on 11.02.2014, the appellant has taken the said goods vehicle which was loaded with bauxite materials and was proceeding from Gudegar taluka, Mandangad district, Ratnagiri (Maharashtra) towards Belagavi, near Parashuram Ghat on Mumbai-Goa National Highway and at about 7.15 p.m. another truck bearing No.MH-08/E-281 came from opposite direction with high speed and in a rash and negligent manner dashed the goods vehicle which was driven by the appellant. Due to the said accident, the appellant had sustained multiple fracture injuries and therefore for having sustained injuries in the course of and arising out of employment, the appellant had filed claim petition under Section 22 of the Employee’s Compensation Act (hereinafter referred to as ‘E.C. Act’ for brevity).

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The Trial Court after receiving the evidences and considering the same, has awarded compensation of Rs.7,75,075/- with interest at the rate of 12% p.a. payable after 30 days from the date of accident till its deposit. Being aggrieved by the said compensation amount, the appellant-claimant is before this Court in this appeal seeking for enhancement of compensation.

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Learned counsel for the appellant vehemently submitted that in the present case the appellant was working as driver in a heavy goods vehicle under the employment of respondent No.1 and now due to the accident the appellant is unable to work as a driver in any kind of vehicle and he has lost his earning capacity to the extent of 100%. But, the Trial Court has only considered the disability at 45% which has resulted in awarding a meager amount as compensation. Therefore, he submitted that when there was medical evidence on record produced before the Trial Court and it is also proved from the medical records that the appellant is not able to drive the vehicle, disability at 100% ought to have been taken by the Trial Court. But, without taking the same, the Trial Court has awarded lesser amount of compensation. Therefore, he submitted that the approach of the Trial Court is contrary to the evidence on record and thus prays for enhancement of compensation amount.

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On the other hand, learned counsel for respondent No.2-Insurance Company vehemently submitted that the Trial Court has rightly taken into consideration the disability factor at 45% considering the nature of injuries sustained by the claimant and accordingly the amount of compensation determined by the

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Trial Court is correct, which needs no interference by this Court. Further, he submitted that this Court is having limited jurisdiction and cannot re-appreciate the evidence on record on the finding of percentage of disability and therefore submitted that no substantial question of law is involved in the present case and hence, the appeal is also not maintainable and prays for dismissal of the appeal.

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Upon considering the rival contentions urged by both

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the parties, the following substantial question of law arises for consideration of this Court:

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Whether the Trial Court is correct in holding disability to the extent of 45% while considering the loss of earning capacity of the appellant considering the evidence placed by the appellant and thus, the approach and findings of the Trial Court is contrary to the evidence on record and hence perverse?

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In the present case, it is not in dispute that the

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appellant was working as a driver in a heavy goods vehicle bearing No.KA-22/A-7942, owned by respondent No.1 and insured with respondent No.2-Insurance Company and had sustained injuries arising out of and in the course of employment with respondent No.1. The Trial Court has considered that the

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appellant had sustained 45% of disability while computing the compensation under the head ‘loss of earning capacity’. In the present case, the appellant had sustained multiple injuries as is revealed by Ex.P.4-summary sheet of KLE hospital, Belagavi and from discharge cards at Exs.P.6 and P.7. It is revealed that the appellant had sustained crush injury to the left leg foot and right leg knee was dislocated as he had suffered fracture injuries to the right leg. Further, as per Ex.P.5-discharge card, it is revealed that the appellant had suffered inability to flex the right knee and there is instability of right leg. Further, the medical records prove that the right knee flexion is 0’ degree. Therefore, the appellant is unable to rotate and unable to flex the right leg which completely disables him from driving a vehicle.

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The doctor who treated the appellant-claimant is examined as PW.2. PW.2 in his evidence has deposed that he has treated the appellant when the appellant was admitted in KLE hospital, Belagavi and later on he was admitted to Kapileshwar hospital. PW.2 has given evidence that the appellant had sustained the following injuries at the time of accident.

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a) Crush injury to right foot

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b) Multi-ligamentous injury to right knee

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Further, PW.2 has given treatment particulars of the

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appellant in the hospital as under:

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1. Debridment and grafting for foot in KLE hospital, Belagavi

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1. Arthroscopic Arthrolysis of right knee

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1. Post cruciate lig and posterior lteralcompex repair

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Further, in the evidence of PW.2 it is stated that on clinical

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examination, it is observed and seen that:

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1. There is swelling over right knee

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1. There is an operative scar over the right knee

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1. There is muscular wasting of right thigh (left 24 cms- rt. 20 cms)

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1. Inability to squat, unable to drive (cannot drive)

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1. Limps on right side

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Therefore, it is the evidence of PW.2 that the

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appellant is suffering limp in the right knee and is unable to squat and unable to pursue his daily activities and the appellant cannot drive the vehicle. Therefore, the evidence placed by PW.2 and the medical evidence prove that after the accident the appellant is not able to work as a driver in the vehicle and has lost his profession. Even in the course of cross-examination of PW.2, nothing is revealed to prove that the evidence of PW.2 is

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in exaggerated version. PW.2-doctor has stated that the appellant had sustained 45% permanent disability in respect of

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right lower limb. It is pertinent to note that the doctor can only state the physical disability and not the functional disability. The aspect of functional disability is to be considered by the Court/Trial Court on the basis of the percentage of physical disability coupled with the avocation/profession of the claimant. Therefore, when the medical records above discussed prove that due to the said physical disability the appellant cannot work as a driver and then it amounts to 100% functional disability as the appellant has lost his ability to drive and he cannot continue in his profession as a driver. Therefore, the functional disability is to be taken into consideration at 100% while calculating loss of earning capacity. In this regard, this Court places reliance on the judgment of the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343, wherein the Hon’ble Supreme Court was pleased to lay down the principles of law at paragraph Nos.12, 13, 16 and 19 as under:

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“12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:

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(i) whether the disablement is permanent or temporary;

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(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,

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(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.

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If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

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13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is

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totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

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14. xxxxx

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15. xxxxx

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16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to hold an enquiry into the claim' for determining the just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view

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the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.

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17. xxxxxx

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18. xxxxxx

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19. We may now summarise the principles discussed above :

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(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

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(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

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(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of

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profession, occupation or job, age, education and other factors.”

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In this regard, in more or less similar facts and circumstances involved in the instant case, we place reliance on the judgment of the Hon’ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others reported in (2015) 7 SCC 252 . In this case also the facts are that the appellant was a driver and in the accident he had suffered severe compound fracture to the right arm which has prevented him from performing his regular work as a driver and therefore, under such facts and circumstances the Hon’ble Supreme Court was pleased to consider that the appellant had suffered 100% functional disability by following the ratio laid down in catena of decisions discussed therein.

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Therefore, in the present case also, the appellant is a driver and had suffered crush injuries to his right foot and also to the right leg knee virtually rendering him unemployable and disabling him from performing his work as a driver and continuing his avocation. Therefore, the above said decision in

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Jakir Hussein supra is squarely applicable to the case on hand. Therefore, when the facts and circumstances involved in the

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present case are considered and the evidence is appreciated in this regard in the light of the principle of law laid down by the Hon’ble Supreme Court stated supra and considering the aspect that the appellant had suffered physical disability, it is evident that the appellant had suffered functional disability to perform his profession/job as a driver. Therefore, it is proved that the appellant is not able to work as a driver and lost his job after the accident and in future also he cannot work as a driver. Therefore, this amounts to 100% loss of earning capacity. Therefore, we find merit in the submissions made by the learned counsel for the appellant. Thus, the contention of respondent No.2-Insurance Company is liable to be rejected.

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Learned counsel for respondent No.2-Insurance Company submitted that as there is no substantial question of law involved in the present appeal, re-appreciation of evidence on record is not warranted as the appeal is one that is filed under the provisions of E.C. Act. Therefore, he submitted that the appeal is not maintainable. In support of his contention, he places reliance on the judgment of the Hon’ble Supreme Court in the case of Golla Rajanna and Others Vs. Divisional Manager, United India Insurance Company Limited and

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Another reported in 2017 ACJ 1 . In the above said decision, the facts are that the appellant was a workman and had sustained employment injuries and has approached the Labour Officer-cum-Workmen’s Compensation Commissioner and he was awarded compensation. On appeal by the Insurance Company to the High Court, the compensation amount was drastically reduced on the ground that the disability would be only 5% to the whole body resulting in 5% loss of earning capacity. The Hon’ble Supreme Court has set aside the order passed by the High Court and restored the order passed by the Labour Officercum-Workmen Compensation Commissioner on the ground that there is no case for Insurance Company to say that the findings recorded by the Commissioner is based on no evidence or that it is perverse.

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Therefore, in the present case, this Court is not reappreciating the evidence, but considering the medical evidence on record, the functional disability is determined. The Trial Court has lost sight of the difference between physical disability and functional disability as is laid down by the Hon’ble Supreme Court in the case of Rajkumar supra. Therefore, in the present appeal, there is no re-appreciation of evidence done but a finding

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about the functional disability with reference to the injuries sustained and physical disability occurred to the appellant. Therefore, the judgment relied on by the learned counsel for respondent No.2 is not applicable to the present case on hand as the facts and circumstances involved in the above stated case and present case are different.

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Therefore, upon following the principle of law laid down by the Hon’ble Supreme Court stated supra and considering the nature of injuries sustained by the appellant in the present case coupled with the profession/job of the appellant as he was a driver and was driving a heavy goods vehicle and after the accident the appellant is not able to function as a driver and lost his profession/job itself nothing but amounts to 100% of loss of earning capacity. Therefore, we deem it proper to hold that the appellant had suffered 100% loss of earning capacity considering the functional disability as above discussed. Furthermore, this aspect is also squarely covered by the Hon’ble Supreme Court in the case of Jakir Hussein supra. Therefore, the amount of compensation awarded by the Trial Court requires to be re-determined by holding that the appellant had sustained 100% loss of earning capacity.

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The Trial Court has considered the income of the appellant-claimant at Rs.8,000/- p.m. which is found to be proper and the appellant was aged 27 years old as on the date of the accident and therefore the relevant factor is 213.57 as per Schedule IV of E.C. Act. Therefore, the quantum of compensation under the head ‘loss of earning capacity’ is to be re-determined as under:

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Rs.8,000 x 100% x 60% x 213.57 = Rs.10,25,136/-

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Accordingly, the appellant is entitled for additional compensation of Rs.5,63,825/- (10,25,136 – 4,61,311 (awarded by Tribunal)) under the head ‘loss of earning capacity’.

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The compensation amount awarded by the Trial Court on other heads, like medical expenses is based on the evidence on record which is not altered.

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Accordingly, the substantial question of law is answered and that this Court is of the opinion that the Trial Court has committed an error by appreciating the case contrary to the evidence on record and without following the legal provisions of law laid down by the Hon’ble Supreme Court. Therefore, the

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order passed by the Trial Court is liable to be modified to the extent above stated.

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In view of the above, we proceed to pass the following:

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ORDER

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The appeal is allowed in part.

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The order passed in ECA No.3/2015 dated 01.07.2015 by

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the III Additional Senior Civil Judge and Commissioner under Employees Compensation Act, Belagavi is hereby modified to the extent that the appellant is entitled for additional compensation of Rs.5,63,825/- in addition to what has been awarded by the Trial Court, with interest at the rate of 12% p.a. after 30 days from the date of accident till realization.

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The other findings of the Trial Court are not altered.

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No order as to costs.

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Office to draw modified award accordingly.

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Sd/JUDGE

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Sd/JUDGE

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Krishna v. Asif

Case brief

What is this about?

What did the court decide?

Krishna v. Asif

Case brief

What is this about?

What did the court decide?

What the court decided

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