Dismissed

Sri. S H Kulkarni v. the Divisional Controller

Karnataka HC17 Nov 2022MFA/2133/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal by an employee who lost his right eye due to a workplace accident. The Court held that since the employee continued in service with protected salary, received promotions, and had medical expenses reimbursed, there was no loss of earning capacity to warrant additional compensation under the Act.

What did the court decide?

The appeal was dismissed, upholding the Commissioner's award dismissing the compensation claim.

Sri. S H Kulkarni Vs the Divisional… — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^th DAY OF NOVEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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MFA NO.2133/2017(WC)

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BETWEEN :

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SRI. S.H. KULKARNI AGED ABOUT 55 YEARS TECHNICAL ASSISTANT KSRTC DIVISIONAL WORKSHOP INDUSTRIAL AREA DAVANAGERE-577 004

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... APPELLANT

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(BY SRI. NAIK V.S., ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER KSRTC, DAVANAGERE DIVISION DAVANAGERE-577 004

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... RESPONDENT

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(BY SRI. G. SHANKAR GOUD, ADVOCATE)

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THIS APPEAL IS FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGEMENT AND AWARD DATED:09.01.2017 PASSED IN ECA NO.40/2014 ON THE FILE OF THE III ADDITONAL SENIOR CIVIL JUDGE, AND VII MACT, DAVANAGERE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.09.2022, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the claimant/appellant under Section 30(1) of the Employees Compensation Act, 1923 challenging the judgment and award passed by the Commissioner in ECA No.40/2014 on the file of the III Addl. Senior Civil Judge and VII MACT, Davanagere dated 09.01.2017, whereby the court has dismissed the claim petition filed by the claimant under Section 22 of the Workmen’s Compensation Act, 1923 and sought for allowing his claim petition by awarding compensation of Rs.10,00,000/- as prayed for.

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For the sake of convenience, the parties herein

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are referred as per the ranks occupied by them before the Commissioner.

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The brief factual matrix leading to the case are that the claimant is a technical assistant working in a workshop of KSRTC situated at Davanagere from 2006. The said workshop was under control of respondentCorporation. On 11.09.2012 while the claimant was

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discharging his duty at the workshop all of sudden a piece of metal entered in to his right eye and immediately he was shifted to SSIMS Hospital, Davanagere and he was operated there. Thereafter he was admitted to Kasturba Hospital, Manipal on 13.09.2012 and the metallic piece was removed from the eyes. He was inpatient in the hospital up to 20.09.2012 and he has also taken follow up treatment in Eye Care Center and Bangalore Netralaya. But however, he lost his right eye. He has spent sufficient amount towards medical expenses and travelling. Further he asserted that the incident has occurred during the course of the employment and hence, he has sought compensation to the tune of Rs.10,00,000/-.

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On the contrary respondent-Corporation has appeared and objected the petition on the ground that the respondent has provided all the safety measures to its employees and the claimant has not used safety measures as provided to him. Hence, it is contended that the alleged incident has occurred due to his negligence. It is also

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contended that the medical expenses were reimbursed and he was also provided leave with full paid salary. It is also asserted that he was given a different employment in the Corporation and there is no loss of future income. Hence, it is contended that the question of petitioner claiming any compensation under the Provisions of Section 22 of the Workmen’s Compensation Act does not arise at all. Hence, the Corporation has sought for dismissal of the claim petition.

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The commissioner after recording the evidence and after appreciating the oral and documentary evidence has rejected the claim petition. Being aggrieved by this order of rejection of the claim petition, the claimant is before this Court.

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Heard the arguments advanced by the learned counsel for the appellant and learned counsel for the respondent-Corporation. Perused the records.

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Learned counsel for the appellant would contend

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that the claimant has admittedly lost his right eye and though the salary was protected, admittedly the petitioner has suffered disability. He has also contended that Section 3 of the Workmen’s Compensation Act does not refer to loss of income alone and it only deals with employees liability to pay the compensation in respect of death or bodily injury suffered during the course of the employment and protection of salary is not covered. In this context he has placed reliance on the decision of Madras High Court in L.P.A.12/1980 dated March 11, 1986 . He would also contend that the claim is covered under Sections 3 and 4 of the Act and the Commissioner was not justified in rejecting the claim petition.

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Per contra learned counsel appearing for the Corporation would support the award passed by the Commissioner. He would contend that though the claimant has suffered damage to his right eye, he was given an alternative employment in the Corporation and his salary

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was protected. He would also contend that subsequently, he got promotion and there is no denial of salary and as such he cannot have a double benefit out of the accidental injuries. He would also contend that there is certain negligence on the part of the petitioner in the accident and as such he would seek for dismissal of the appeal.

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Having heard the arguments and after perusing

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the oral as well as documentary evidence, there is no serious dispute of the fact that the petitioner was working as a technical assistant in workshop of the respondentCorporation. It is also not under dispute that he suffered accidental injuries on his right eye and later on he was operated. There is also no issue regarding he being losing vision of right eye. These are not under serious dispute and admittedly since the petition is under the provision of Workmen’s Compensation Act, the negligence has no relevance unless the Corporation establishes that there is negligence on the part of the employee. Though the Corporation has asserted this aspect contending that all

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safety equipments were provided to the claimant but to substantiate the said contention, no person from the concerned workshop were examined. The respondent has examined only the accountant who has deposed regarding reimbursement of medical bills. The evidence of Pw.2 disclose that claimant has lost his right eye sight. The evidence of Rw.1 disclose that the Corporation has paid Rs.72,305/- towards medical expenses and also provided him treatment. It is all along asserted that no conveyance allowance was provided to him, but the said fact cannot be accepted since he being an employee of the Corporation, he is having a pass for free travelling and under such circumstances, the medical bills as claimed by the claimant were reimbursed by the Corporation. However, the cross examination of Pw.1 disclose that he went on denying everything but the records speak a different story. There is no serious dispute regarding reimbursement of the medical records. It is also an undisputed fact that the claimant continued in the employment of respondent-Corporation. In the cross examination, he admitted that he has applied

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three months leave for treatment and in this period his complete salary was paid. He also admitted that he was still working in the Corporation. It is not his case, that because of disablement, he was demoted and his salary was reduced. No such case is forthcoming and on the contrary admittedly he got all the increments and protection of the salary and continued to be in employment of respondentCorporation. Now only the question is whether after having continued in Corporation having a protected salary, can he seek compensation under Section 22 of the Act.

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In this regard learned counsel for the claimantappellant has invited the attention to Section 3 of the Act and contended that the compensation under Section 3 of the Act is not restricted only regarding disability during the course of employment. In this context he placed reliance on the decision of Madras High Court stated supra. Relying on this decision in respect of observation made in paragraph 10, it is contended that loss of earning power should not be confined only to the present capacity. But the facts are

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entirely different and in the said case it was a private employment and there was no protection of salary and in that context it was held otherwise. However, this issue has been covered by the decision of this Court in the case of The Divisional Controller NEKRTC Bidar vs. Mohammed Shareef in MFA No.30715/2010(MV) , wherein the similar set of facts this Court has held that when there is no loss of income and he is drawing the same salary as he had drawn earlier and when there is no reduction in pay nor he has denied any promotion due to the permanent disability, the petition under Section 22 of the Act is not maintainable. In paragraph Nos.5 and 6 of above case, the co-ordinate bench of this Court has observed as under:

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“5. On hearing learned counsels’ I’ am of the considered view that appropriate relief requires to be granted. The case of the claimant is that on account of the injuries that he has sustained he is disabled to an extent of 35% in performing his day to day activities as an employee. It is on this base, his claim has been setup. However, the material on record which is undisputed, is that there is no loss of income. That he is drawing the same salary that he had drawn

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earlier. There is no reduction in pay nor it is the case of the claimant that he has been denied any promotion or otherwise due to the

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permanent disability. Notwithstanding the fact that there is a disability certificate, the same has not been come in the way of the claimant receiving the same salary, that he is entitled to. Therefore, it would mean that in spite of the accident as well as the disability certificate, there is no loss of income in any manner. Under these circumstances, the claim set up for compensation would not arise. Compensation is necessarily to be granted in

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case of loss of earning and not otherwise. Under these circumstances, I’ am of the considered view that the order of the Commissioner is perverse in holding that the claimant is entitled to compensation. Consequently, the substantial question of law is answered in favour of the appellant and against the claimant. Consequently, the appeal being devoid of merit, is dismissed.

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6. It is needless to state that if in future the claimant suffers any monetary loss or otherwise because of the accident, he is always entitled to set up a claim for compensation.”

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It is not the case of the petitioner that his salary

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was not protected or he denied any interest . Further there is no evidence to show that he has suffered any monetary

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loss or otherwise subsequently also. Under these

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circumstances, when the issue has been covered by Coordinate Bench of this Court the principles enunciated in the decision reported supra cannot be made applicable.

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Learned counsel for the claimant/appellant would contend that in the said above cited decision the implication of Provision of Section 3 of the Act was not at all considered. But the Court has gone to the extent of considering his loss of future earning as well as present earning in the said case and hence, the said arguments does not hold any water.

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Learned counsel for respondent-Corporation in this regard has further placed reliance on the full Bench decision of this Court in Shivalinga Shivanagowda Patil and Others vs. Erappa Basappa Bhavihala and Others reported in ILR 2004 KAR 193 . The point No.3 of paragraph No.4 raised by the full Court Bench on the basis of reference was

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(iii) Whether the determination of the loss of earning capacity has to be by reference to the work, which the workman was performing at the time of the accident, or by reference to his capacity to do any other work after he has sustained the disability?

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While answering this point on page 217 the full

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Bench has observed as under:

“25.

(i) XXXX

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(iii) Determination of the loss of earning capacity has to be with reference to “all the work” which the workman was capable of performing at the time of the accident resulting in such disablement and not with reference to the work which the workman was performing at the time of the accident. However, this is subject to the condition that in case the workman establishes by acceptable evidence that after the injury not only he is not able to do the work which he was performing before the accident but he is not able to do any other work, the loss of earning capacity could be assessed on the basis of such evidence.”

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Hence, it is evident from the full Court Bench

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decision of this Court that the compensation is required to be determined in respect of loss of earning capacity in respect of all the work which workmen was capable of

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performing at the time of accident resulting in disablement and not with reference the work which he was performing at the time of the accident. Admittedly, it is not the case of the appellant that he is unable to perform any work at all. Further he is also entitled for retirement benefits under the regulations of the Corporation. Under such circumstances, he cannot have a double benefit out of the accident took place during the employment. In the instant case, no evidence is placed by the appellant/claimant to show that he is incapacitate to do any work including his day today work.

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Under such circumstances, in view of the above decisions, question of again he seeking compensation does not arise at all as there is no evidence that he is incapable of performing any duty. Further his job is protected and he got promotion including reimbursement of medical expenses and he got all the future benefits including increments and promotion. Under such circumstances, in view of the decision of the full Bench as referred above in

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Shivalinga Shivanagowda Patil case as well as in the Coordinate Bench decision of this Court in Mohammed Shareef’s case, question of claimant again claiming compensation does not arise at all under Section 22 of the Act unless he establish by cogent evidence that he is incapable of performing any duty and there is complete future loss of income also which is not forthcoming in the instant case.

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Under such circumstances, the judgment and award passed by the Commissioner in dismissing the claim petition cannot be said to be erroneous and it does not call for any interference. Hence, the claimant is not entitled for any further compensation once again on account of disability when all his demands are met. Hence, the Commissioner is justified in rejecting the claim of the claimant and the judgment and award passed by the Commissioner/III Additional Senior Civil Judge & VII MACT, Davanagere does not call for any interference in this regard. Hence, the petition being devoid of any merits does

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not survive for consideration. As such the petition needs to

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be rejected. Accordingly, I proceed to pass the following:

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ORDER

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The appeal stands dismissed .

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Sd/JUDGE

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