Allowed

Sri Chandrashekar S/O B. Rajanna v. Sri K S Narayanappa

Karnataka HC16 Jun 2023MFA/7937/2012

Case brief

AI extract

What is this about?

This High Court set aside a lower tribunal's assessment of compensation for an injured workman, enhancing the award from Rs.53,760 to Rs.1,66,656 based on revised wage calculations and disability percentage, dismissing the insurer's appeal against liability.

What did the court decide?

Compensation enhanced to Rs.1,66,656; insurer to pay first and recover from owner; tribunal record returned with modified order.

Sri Chandrashekar S/O B. Rajanna Vs Sri K S… — Writ and Judicial Review | Karnataka HC (2023)

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 7937 OF 2012 (WC)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 9019 OF 2012 (WC)

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M.F.A. NO.7937/2012 :

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BETWEEN:

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SRI CHANDRASHEKAR S/O. B. RAJANNA AGED ABOUT 20 YEARS OCC: COOLIE (LOADER/UNLOADER) R/O NO.40, 6TH MAIN, 4TH PHASE, BSK 3RD STAGE, BANGALORE 85.

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…APPELLANT

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(BY SRI. SURESH M LATUR.,ADVOCATE - VC)

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AND:

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA

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SRI K S NARAYANAPPA S/O SRI SIDDALINGAIAH R/O KARENAHALLI VILLAGE KEMPASAGARA POST KASABA HOBLI, MAGADI TALUK, RAMANAGAR DISTRICT.

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THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO LTD., D. NO.6, NO.911, 2ND FLOOR, DASAPPA COMPLEX,

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T. DASARAHALLI, PEENYA,

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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BANGALORE 57.

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…RESPONDENTS

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(BY SRI. O MAHESH, ADVOCATE FOR R2;

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R1 – NOTICE DISPENSED WITH V/O. DATED 16.04.2013)

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THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 21.5.2012 PASSED IN WCA/NFC/CR.NO.22/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-2, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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M.F.A. NO. 9019/2012 :

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BETWEEN:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE NO.6 NO.911, 2ND FLOOR, DASAPPA COMPLEX, T. DASARAHALLI, PEENYA BANGALORE-560 057. THROUGH NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, 144, M.G. ROAD, BANGALORE-560 001. BY ITS MANAGER.

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…APPELLANT

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(BY SRI. O MAHESH.,ADVOCATE - VC)

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AND:

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SRI CHANDRASHEKAR, MAJOR S/O RAJANNA, NO.40, 6TH MAIN, 4TH PHASE, BANASHANKARI 3RD STAGE BANGALORE-560 085.

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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SRI K S NARAYANAPPA S/O SIDDALINGAIAH KARENAHALLI VILLAGE KEMPASAGARA POST, KASABA HOBLI, MAGADI TALUK RAMANGARA DISTRICT-571511.

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…RESPONDENTS

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(BY SRI. SURESH M LATUR, ADVOCATE FOR R1 – VC;

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R2 - SERVED)

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THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED21.5.2012 PASSED IN WCA.BEN-2/NFC/CR.NO.22/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-2, BANGALORE, AWARDING COMPENSATION OF RS.53,760/- ALONG WITH INTEREST @ 12% P.A.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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M.F.A. No.7937/2012 is filed by claimant challenging

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the order dated 21.05.2012 passed by the Labour Officer and Commissioner for Workmen Compensation, SubDivision-2, Bangalore, (for short, 'learned Commissioner') in WCA/BEN-2/NCF/CR.No.22 of 2007 for seeking enhancement.

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M.F.A. No.9019/2012 is filed by insurance company questioning the liability fixed on the insurance company.

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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3. Brief facts :

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On 03.08.2007 at about 4.00 p.m. when claimant

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was standing near Gavigangadhareshwara Temple, Magadi town, behind the tractor to unload the stones at that time the driver of tractor bearing No.KA-52/T-379 and trailer bearing No.KA-52/T-380 suddenly drove the offending vehicle in reverse direction in rash and negligent manner, as a result, the stones fell on the claimant, who was working as a coolie. The claimant was immediately rushed to Mysore Clinic, Magadi for first aid and later he was shifted to Victoria Hospital, Bengaluru.

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The learned counsel for insurance company submitted that the tractor and trailer is falsely implicated into the case for the purpose of making false claim against the insurance company. There is no evidence with regard to the involvement of tractor – trailer in the incident. In the wound certificate and discharge card, the tractor – trailer number is not mentioned, and hence, involvement of tractor – trailer as alleged in the claim petition is

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5 - NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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suspicious one. Furthermore, the Motor Vehicle Inspection Report is much prior to the seizure of the tractor – trailer. Therefore, it creates doubt regarding the case. Hence, it is submitted that there is no cogent evidence with regard to the involvement of tractor – trailer in the incident. Hence, learned counsel for insurance company prays to allow the appeal filed by it by setting aside the order passed by the learned Commissioner.

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On the other hand, the learned counsel for the claimant submitted that the monthly wage taken by the learned Commissioner is on the lower side and also the physical disability assessed by the learned Commissioner is also on the lower side. Hence, prays for enhancement of compensation.

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This Court while admitting the appeals on 03.03.2021

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had framed the following substantial questions of law :

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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In MFA No.7937/2012 :

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Whether the commissioner is just filed in considering only 16% as loss of earnings, though there was clear evidence by the claimant and doctor that, he has become disabled to do his earlier work or any other manual work?

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Whether the Hon'ble Workmen Compensation Commissioner is just in considering monthly wages of Appellant at Rs.2,500/- per month as against Rs.4,000/- as per Workmen Compensation Act?

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In MFA No.9019/2012 :

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Whether the commissioner justified in saddling the liability on the insurer when it was specifically dined and proved the claim was false, concocted and collusive one to non-plus the insurer?

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Whether the commissioner justified in holding that the insurer is liable when it was evident from the records produced by the injured established that the driver of insured T.T had no driving licence at all was prosecuted for such offence under section 181 of M.V.Act along with provisions of I.P.C [exhibit P-2]?

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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In the present case, it is stated that the claimant was loader and unloader in the alleged offending tractor-trailer. Due to the accident, the claimant sustained grievous injuries. Therefore, it is stated that the claimant has sustained grievous injuries during the course of employment. The Tribunal has granted compensation and fixed liability on the insurance company.

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Though the accident occurred on 03.08.2007, complaint was lodged on 28.08.2007. There is a delay of about 25 days in lodging complaint. The explanation offered for the delay is that since the claimant was taking treatment in the hospital, he could not lodge complaint before the police. Even though the claimant was discharged from hospital on 23.08.2007 and was taking bed rest at home, complaint is lodged after five days of discharge from hospital. But due to the grievous injuries sustained by the claimant to his leg, there might be delay in lodging complaint. The delay in lodging complaint

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always cannot be made a ground to suspect the case of the claimant.

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To consider the grievous injuries sustained by the claimant during the course of employment, the evidence which is available on record is appreciated. In the wound certificate and discharge summary, it is clearly stated that claimant was admitted to hospital with a history of accident that stone fell on the right leg while loading stones to the offending tractor-trailer on 03.08.2007 at about 4.00 p.m. near Gavi Gangadhareshwara Temple, Magadi town. Therefore, soon after the accident the claimant was admitted to hospital. All these facts have been clearly stated in the discharge summary, reference card and wound certificate of the hospital. Therefore, just because the number of offending tractor-trailer is not stated in discharge summary, reference card and wound certificate, it does not amount to doubt the occurrence of accident. Therefore, it is proved that tractor-trailer is involved in the accident.

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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The learned Commissioner has correctly assessed

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that the accident has occurred during the course of employment. On perusal of the wound certificate and the evidence available on record, it can be seen that the claimant has sustained the following injuries and

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disabilities :

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Walk with limp.

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Deformity of right leg.

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Tenderness over right knee joint.

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Restriction of joint movement right knee flexion 40 degree, normal 125 degree.

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Difficulty to stand on fractured limb, squat, sit, cross-legged, climb upstairs.

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The claimant was working as a loader and unloader

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in the tractor-trailer. The Doctor has stated that the claimant has suffered disability at 31% towards right lower limb which is permanent in nature and 15.5% disability to the whole body. Functional disability and physical disability

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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are two different factors. This Court has followed the principles of law laid down by the Hon’ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343, wherein at Paragraph Nos.12, 13 and 19, it is held as under:

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“12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for crossexamination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

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13. 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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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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

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“19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.”

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The learned counsel for claimant submitted that the

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claimant had suffered 100% loss of earning capacity. From the medical evidence on record, it is proved that the

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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claimant had suffered permanent partial disability. There is no evidence that the claimant had suffered permanent total disability. Therefore, from the medical evidence on record, it is proved that the claimant had suffered permanent partial disability and hence, the evidence of Doctor can be believed.

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This is not the case of amputation of either of the limbs. Therefore, it is not a permanent total disability and

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cannot be treated disability at 100%.

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Following the evidence of Doctor, it is proved that the claimant has suffered permanent partial disability. Therefore, the Doctor has stated that the claimant had suffered 31% permanent partial disability towards right lower limb and that is considered for awarding compensation under the head 'loss of earning capacity due to disability' as per Section 4 of the Employee's Compensation Act, 1923.

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NC: 2023:KHC:20791 MFA No. 7937 of 2012 C/W MFA No. 9019 of 2012

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The Labour Commissioner has erred in taking Rs.2,500/- as monthly wages. Therefore, as per the Workmen's Compensation Act, claimant's monthly wage is taken at Rs.4,000/-. His age was about 20 years at the time of incident and hence, the relevant factor would be '224.00' as per Schedule IV of the Employee's Compensation Act. Therefore, the 'loss of earning capacity due to disability' is computed as below :

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'Rs.4,000/- x 60/100 x 31/100 x ‘224.00’ = Rs.1,66,656/-'

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Consequently, the claimant is entitled for compensation of Rs.1,66,656/- along with interest at the rate of 12% per annum from the date of accident till the date of realisation.

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The learned counsel for insurance company sought for an order of pay and recovery since the driver of the tractor and trailer did not hold any driving licence under the Employee's Compensation Act. The only thing to be considered is, whether the claimant had sustained injuries or not. There is no similar provision in the Employee's

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Compensation Act enabling to pass order as pay and recovery, as the claimant is not a third party. The principle of pay and recovery under the Motor Vehicles Act is to protect the interest of the third party in case where the defence of insurance company is proved, but there is no analogous provision in the Employee's Compensation

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Act, 1923.

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Even though the insurance company may contend that there is violation of conditions of insurance policy, but that is nothing to do with the claimant. The claimant is entitled for compensation, when the insurance policy is in existence the insurance company shall indemnify the owner. The inter se dispute between the insurer and insured under the Employee's Compensation Act cannot deprive right of claimant. If any of the insurance company has any grievance regarding violation of conditions of policy, then the insurance company shall work out the remedy against the owner of the offending vehicle as per the law. Hence, in the peculiar facts and circumstances,

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the insurance company shall pay compensation to claimant at first instance and then recover from owner of the

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tractor-trailer.

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Accordingly, I pass the following-

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ORDER

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i. M.F.A. No.7937/2012 filed by claimant is allowed in part.

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ii. M.F.A. No.9019/2012 filed by Insurance Company is dismissed.

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iii. The judgment and award dated 21.05.2012, passed in WCA/B2/NFC/CR-22/2007, on the file of Labour Officer And Commissioner For Workmen Compensation, Sub Division-2, Bangalore, is modified to the above extent.

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iv. The claimant is entitled to an additional compensation of Rs.1,12,896/- (Rs.1,66,656 - Rs.53,760), along with interest at the rate of 12% per annum from the date of accident till the date of

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realization, in addition to what has been awarded by

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the Tribunal.

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v. The insurance company shall pay compensation at first instance and then recover from the owner of tractor-trailer.

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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. Draw award accordingly.

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Sd/JUDGE

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List No.: 1 Sl No.: 6

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HNM

Sri Chandrashekar S/O B. Rajanna v. Sri K S Narayanappa

Case brief

What is this about?

What did the court decide?

Sri Chandrashekar S/O B. Rajanna v. Sri K S Narayanappa

Case brief

What is this about?

What did the court decide?

What the court decided

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