Partly allowed

The Divisional Manager v. Seena

Karnataka HC16 Jan 2023MFA/4033/2017

Case brief

AI extract

What is this about?

Insurance company challenged compensation under Employees Compensation Act, arguing injury was partial, not total. Court held injury warranted lower compensation under partial disability clause and set aside the extra amount. Medical expenses held unrecoverable from insurer absent contract term.

What did the court decide?

Award modified; compensation fixed at Rs.35,470/- by insurer; medical bills to be reimbursed by employer/respondent No.2.

The Divisional Manager Vs Seena — Pension and Retirement Benefits | Karnataka HC (2023)

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MFA No. 4033 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 4033 OF 2017 (WC)

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BETWEEN:

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO LTD PLANTERS COURT, K M ROAD, CHICKMAGALURU.

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…APPELLANT

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(BY SRI. A N KRISHNA SWAMY., ADVOCATE)

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AND:

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SEENA

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Digitally signed by PAVITHRA B

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Location: HIGH COURT OF KARNATAKA

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S/O NAVURA,

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AGED ABOUT 35 YEARS,

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R/O SATHIHALLI VILLAGE, GULLANPETE POST, CHIKKAMAGALURU TALUK

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PLASIDIA ‘D’ SOUZA MADENERALU VILLAGE, ALDUR HOBLI, GULLANPETE POST, CHIKKAMAGALURU TALUK

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…RESPONDENTS

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(BY SRI. A.S. GIRISH, ADVOCATE FOR R2, R1-SERVED)

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THIS MFA FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT 1923, AGAINST THE JUDGMENT AND AWARD DATED 14.03.2017 PASSED IN ECA NO.223/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM CHIKKAMAGALURU. AWARDING COMPENSATION OF RS.1,83,989/- WITH INTEREST AT 12% P.A WITHIN ONE MONTH FROM THE DATE OF THE JUDGMENT.

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MFA No. 4033 of 2017

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the Appellant - Insurance

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Company under Section-30(1) of Employees

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Compensation Act 1923, challenging the judgment and award dated 14.03.2017, passed in E.C.A. No.223/2014, (hereinafter referred to as ‘EC Act’ for brevity) on the file of the Principal Senior Civil Judge And CJM Chikkamagaluru (hereinafter referred to as ‘Commissioner/Tribunal’ for brevity) regarding the

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quantum of compensation is concerned.

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Brief facts:

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The claimant was working as a coolie under the

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second respondent-employer. On 26.04.2012, when the

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claimant was cutting a tree in the estate of the second respondent, at that time he accidentally fell down from the tree, due to which he sustained grievous injuries.

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MFA No. 4033 of 2017

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Hence, a claim petition was filed by the claimant under Section-22 of the E.C. Act, claiming compensation for the injuries suffered in the accident during employment. The Commissioner/ Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of Rs.1,83,989/-, along with interest at 12% per annum from the date of accident till the date of realisation. The Tribunal held appellantinsurance company is liable to pay the compensation.

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Heard arguments of the learned counsel for the

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appellant - insurance company and the learned counsel for respondent No.2 and perused the materials on record.

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The learned counsel for the appellant -

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insurance company submitted that the learned Commissioner/Tribunal has committed error in granting

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the compensation by forming opinion that the case is of ‘permanent total disability’ under Section-4(1)(b) of E.C.

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MFA No. 4033 of 2017

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Act and added compensation of Rs.1,40,000/-, which is not correct. Further, submitted that when the present case is of ‘permanent partial disablement’ clause-(ii) of Section–4(1)(c) of E.C. Act is applicable. Therefore, the insurance company is liable to be pay the compensation what is determined considering the case as permanent partial disability only, but not an extra amount of Rs.1,40,000/-.

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Further, submitted that the insurance company is not liable to pay the compensation under the head ‘Medical Expenses’ since there is no contract as such.

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On the other hand, the learned counsel for the respondent-claimant submitted that the judgment and award passed by the Tribunal/Commissioner is correct which needs no interference. Hence, prays for dismissal of the appeal.

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MFA No. 4033 of 2017

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The following substantial questions of law are framed for consideration:

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i) Whether under the facts and circumstances of the present case the learned Commissioner / Tribunal is justified in making addition of Rs.1,40,000/- as if the case is under Section4(1)(b) of E.C.Act, treating the case as if the claimant has sustained ‘permanent total disablement’?

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ii) Whether under the facts and circumstances of the present case, the appellant / insurance company is liable to reimburse the medical expenses in the absence of contract of insurance, regarding reimbursement of medical expenses?

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In the present case, as per Exhibit-P10, the

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claimant had sustained following injuries:

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MFA No. 4033 of 2017

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“left intertrochanteric fracture with subtrochantric extension and L2 anterior wedge fracture”

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The above said injuries as are proved from

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discharge summary are grievous in nature and the Doctor evidence, has stated that the claimant had suffered 5% physical disability and the Doctor has not stated anywhere that it is a ‘permanent total disablement’ or ‘permanent partial disablement’. The meaning of ‘permanent total disablement’ and ‘permanent partial disablement’ are stated in Schedule-I of the E.C. Act, certainly, the present case is not the one coming under the category ‘permanent total disability’ and as per Para-II of Schedule–I, which deals with ‘permanent partial disablement’ and even in this category also, the disability suffered by the claimant in the present case is not coming.

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Considering the nature of injury as above discussed, Facture of L2-Vertebra it is a case of ‘temporary partial disability’. The Doctor had stated that the claimant

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MFA No. 4033 of 2017

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had suffered 5% disability. The Commissioner/Tribunal has considered income of the claimant as Rs.6,000/- per month and accordingly awarded compensation of Rs.35,470/- under the head ‘loss of earning capacity due to disability’. As stated above, clause-(ii) of Section4(1)(c) of E.C. Act is applicable.

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The learned Commissioner / Tribunal committed

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an error in adding Rs.1,40,000/- by observing that as if it is a case of ‘Permanent Total Disablement’ coming under Section-4(1)(b) of E.C. Act and therefore wrongly formed opinion that since the above determined compensation is less than Rs.1,40,000/-, hence he added Rs.1,40,000/which is not correct. The present case is one of ‘permanent partial disability’ coming within clause-(ii) of Section-4(1)(c) but not Section-4(1)(b) of E.C. Act. Therefore, the Commissioner / Tribunal has committed error. Therefore, it is proved that the claimant has suffered only ‘permanent partial disability’ the

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MFA No. 4033 of 2017

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compensation determined ought to be under clause–(ii) of Section-4(i)(c) of E.C. Act. Therefore, the addition of Rs.1,40,000/- is hereby set-aside. Hence, I answer the substantial question No.1 in NEGATIVE.

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Exhibit-R1 is the insurance policy, which is pure contract of insurance. According to the premium paid covering risk of employees based on the wages of the employees, Exhibit-R1 insurance of contract was executed.

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There are no express terms putting condition that insurance company shall reimburse the ‘medical expenses’ also. Just because there is an express term and condition that the insurance company is not liable to pay the interest and penalty, that does not mean that in the absence of stipulation of reimbursement of medical expenses, the insurance company is liable to reimburse the medical expenses. Where the insurance policy is purely in the nature of contract between the parties, the conditions must be expressly stated either to pay or not to

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MFA No. 4033 of 2017

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pay the amount under different heads. In Exhibit-R1, insurance policy there is no express stipulation that the insurance company is not liable to reimburse / indemnify the sum regarding payment of medical expenses or liable to reimburse / indemnify the medical expenses. Therefore, putting burden on the insurance company to pay the medical expenses by indemnifying the owner is out of contract since there is no express stipulation. There is no

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such stipulation in Exhibit-R1 – Insurance Policy that the insurance company shall also pay the medical expenses. Therefore, the medical expenses shall be reimbursed by the respondent No.2 - owner. Hence, I answer the substantial question No.2 in NEGATIVE.

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Hence, the appeal filed by the insurance company is liable to be allowed in part. Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed in part .

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MFA No. 4033 of 2017

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ii. The impugned judgment and award dated 14.03.2017, passed in E.C.A. No.223/2014, (hereinafter referred to as ‘EC Act’ for brevity) on the file of the Principal Senior Civil Judge And CJM Chikkamagaluru is modified to the aforesaid extent.

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iii. The claimant is entitled for a compensation of Rs.35,470/-, along with interest at 12% per annum from the date of accident till the date of realization, which shall be paid by the appellant-insurance company.

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iv. The respondent No.2 – employer shall reimburse the medical bills and receipts to the claimant.

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v. If any excess amount is deposited by the appellant – insurance company, the same shall be refunded to the appellant – insurance company.

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MFA No. 4033 of 2017

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vi. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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vii. No order as to costs.

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Sd/JUDGE

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JJ List No.: 3 Sl No.: 1

The Divisional Manager v. Seena

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Seena

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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