Partly allowed

Rakesha v. Sri Cheluvaraju

Karnataka HC15 Mar 2021MFA/7384/2016

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded to an injured worker for a workplace accident. Although the Trial Court assessed a 9% loss of earning capacity, the Court re-determined it to 39% considering medical evidence of 75% vision loss and limb injuries, awarding Rs. 4,23,783/-.

What did the court decide?

The total compensation was enhanced to Rs. 4,23,783/- with interest at 12% p.a. from the date of the accident.

Rakesha Vs Sri Cheluvaraju — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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M.F.A.No.7384/2016 (WC)

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BETWEEN :

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RAKESHA S/O ASHWATH AGED ABOUT 25 YEARS R/AT SHYABALU, K.R.NAGAR TALUK MYSORE DISTRICT. ...APPELLANT

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(BY SRI SYED ABDUL SABOOR, ADV.)

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AND :

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1 . SRI CHELUVARAJU S/O NAGARAJU AGED ABOUT 39 YEARS, R/AT KUNTANAHALLI VILLAGE T.NARASIPURA TALUK-571011 MYSURU DISTRICT [DRIVER CUM OWNER OF THE VEHICLE CANTER BEARING KL-11-S-7693]

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2 . CHOAMANDALAM M.S. GENERAL INSURANCE CO. LTD., No.271, ISHWARYA LAKSHMIVILAS ROAD DEVARAJA MOHALLA MYSORE-570024 REP BY ITS MANAGER INSURER OF CANTER BEARING REG.No.KL-11-S-7693 [MGV]

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INSURANCE POLICY No.3381/00301695/000/00 VALID FROM 12.3.12 TO 11.3.13. …RESPONDENTS

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(BY SRI B.PRADEEP, ADV. FOR R-2; V/O DATED 26.02.2021, NOTICE TO R-1 IS DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 30(1) OF WORKMEN COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 15.04.2016 PASSED IN ECA No.12/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and award dated 15.04.2016 passed in ECA No.12/2014 on the file of the Senior Civil Judge & JMFC, K.R.Nagar ['Trial Court' for short] whereby the claim petition filed by the injured/appellant under Section 10 of Workmen’s Compensation Act read with Section 22 of the Employee’s Compensation Act, 1923 ['Act' for short] has been allowed in part, awarding compensation of Rs.1,44,157/- along with interest at 12% p.a., after one month from the date of the accident till its complete realization.

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The facts relevant for the purpose of the

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present case are that the appellant being a loader and cleaner working under the first respondent on his vehicle canter bearing registration No.KL-11-S-7692 as an employee, filed claim petition under the provisions of the Act contending that on 10.12.2012 when he was working as a loader in the said canter vehicle at K.RNagar, at about 05.30 a.m., near Ankanahalli Kere Yeri, Natanahalli Village, the first respondent being the driver cum owner of the said vehicle drove it in a rash and negligent manner and lost control over the said vehicle. As a result, the vehicle turtled down and thereby the appellant sustained grievous injuries all over his body. It was contended that immediately he was shifted to Mahhadeshwara Nursing Home & Eye Hospital, Mysuru, wherein he took treatment as an inpatient, underwent surgery to his right eye and right leg. He is suffering from permanent disability resulting in loss of earning capacity due to the grievous nature of the injuries sustained in

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the accident arising out of and in the course of employment. There is relationship of employee and employer between the petitioner and the first respondent. The second respondent is the insurer of the offending vehicle. As such, the said respondents are liable to pay compensation to the appellant with interest. On these grounds, appellant sought for compensation with interest.

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Pursuant to the notice issued, the first respondent – owner appeared before the Trial Court and filed objections denying the claim petition averments. It was contended that the first respondent was driving his vehicle in a normal speed. Due to the failure of the brake, the accident has occurred; the compensation sought by the petitioner/appellant is highly excessive and without any basis.

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The second respondent – insurer appeared

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before the Trial Court and filed objections denying the

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claim petition averments. The defence set up was that in order to make claim, the appellant has fabricated the facts in collusion with first respondent and police. As such, the petition is not maintainable and liable to be dismissed. Further, it was contended that the petitioner has sustained injuries when he had a self fall while riding the two wheeler in his village and the same has been recorded by the hospital authority where he underwent treatment for the injuries and the said injuries are not sustained in the accident arising out of and in the course of his employment. However, admitting the coverage of the insurance policy to the offending vehicle, it was contended that the liability, if any, is subject to the terms and conditions of the policy.

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Based on the pleadings, issues were framed and answered allowing the petition in part awarding total compensation of Rs.1,44,157/- with interest at 12% p.a., as aforesaid.

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6. Being dissatisfied with the quantum of

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compensation, the petitioner/appellant has preferred the present appeal.

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Learned counsel for the appellant/petitioner would submit that the Civil Court has grossly erred in ignoring the 75% of loss of vision in his right eye as assessed by the qualified medical practitioner, C.A.P.Prabhu – PW3. It was submitted that the Trial Court has considered the physical disability sustained by him to both the limbs only to an extent of 9% which is not in conformity with the percentage of disability assessed by the qualified medical practitioner who was examined as PW2 – Dr.Girish Kumar.

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Learned counsel for the insurer supporting the impugned judgment and award submitted that there is no further scope for enhancing the compensation.

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Having heard the learned counsel appearing

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for the parties and perusing the material on record, the

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substantial question of law that arises for our consideration is, –

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Whether the loss of earning capacity determined at 9% by the Trial Court exercising the powers under the provisions of Act is justifiable when the disability was assessed by two qualified medical practitioners one regarding the limb disability to an extent of 15% in respect of upper limb and 12% in respect of lower limb and the other regarding the eye disability assessed at 75% loss of vision in the right eye with no disfigurement in the said eye?

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As could be seen from the material available

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on record that PW2 – Dr.Girish Kumar an orthopedic surgeon has assessed the permanent physical disability in respect of upper limb at 15% and in respect lower limb at 12%. PW3 – Dr.C.A.P Prabhu, and eye surgeon has deposed that after the primary repair, the second surgery was done on 16.02.2013 wherein anterior chamber was cleared to remove all vitreous and

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secondary 10L implantation was done. He further deposed that there was 75% of loss of vision in the right eye. There is no chance of improvement as they have given the best possible treatment available in the medical science.

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Having regard to the aforesaid assessment

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made by the two qualified medical practitioners, the Trial Court has assessed the loss of earning capacity to an extent of 9% considering the 1/3^rd of the disability out of 27% to both the limbs as assessed by PW2. The loss of 75% vision assessed by PW3 is totally lost sight off. In the circumstances, the said loss of earning capacity determined is not fair and reasonable. Considering the Schedule to the Act, we deem it appropriate to re-determine the loss of earning capacity to an extent of 30% in view of loss of vision of one eye, without complications or disfigurement of eye ball, the other being normal as far as disability to the eye is

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concerned. Similarly, having regard to the disability sustained to the limbs 9% of loss of earning capacity determined by the Trial Court as far as the said injuries are concerned has been taken into consideration for assessing the total loss of earning capacity which would be 39%. In terms of section 4[1][c] of the Act and the explanation thereof, the claimant is entitled to compensation as under:

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60% of Rs.8,000/- wages x relevant factor of 226.38 x 39% which comes to Rs.4,23,783/- [Rs.4,800 x 26.38 x 39%]

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Thus, the appellant is entitled to total compensation of Rs.4,23,783/as against Rs.1,44,157/awarded by the Trial Court. The

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substantial question of law is answered accordingly.

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Hence, the following:

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ORDER

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i] Appeal is allowed in part.

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ii] The total compensation awarded by the Trial

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Court is modified and enhanced to Rs.4,23,783/-

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as against Rs.1,44,157/which shall carry interest at 12% p.a., after one month from the date of the accident till its realization.

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iii] The portion of order of the Trial Court inasmuch as liability and disbursement remains intact.

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iv] The respondent No.2 shall deposit the amount determined as aforesaid before the Trial Court within 90 days from the date of receipt of certified copy of the judgment and award.

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v] Draw modified award accordingly.

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Sd/JUDGE

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Sd/JUDGE

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NC.

Rakesha v. Sri Cheluvaraju

Case brief

What is this about?

What did the court decide?

Rakesha v. Sri Cheluvaraju

Case brief

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What did the court decide?

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