Partly allowed

Mrs John Mary v. M/S Kara Learning Pvt.Ltd

Karnataka HC27 Jan 2023MFA/8346/2015

Case brief

AI extract

What is this about?

The High Court allowed an appeal by an employee claiming compensation for permanent partial disablement resulting from a workplace accident. The Court set aside the Tribunal's order dismissing the claim on locus standi grounds, holding that prior compensation for termination did not bar the claim for injury-related disability, and awarded Rs.46,113 with interest.

What did the court decide?

Awarded compensation of Rs.46,113 with interest at 12% per annum from the date of the accident.

Mrs John Mary Vs M/S Kara Learning Pvt.Ltd — Pension and Retirement Benefits | Karnataka HC (2023)

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MFA No. 8346 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO. 8346 OF 2015 (WC)

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BETWEEN:

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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MRS. JOHN MARY W/O ARULDASS, AGED ABOUT 35 YEARS, C/O ALI STORE, NO.13/2, EAST STREET, ANNAYAPPA GARDEN NEELASANDRA, BENGALURU - 560 047.

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…APPELLANT

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(BY SRI. A J SRINIVASAN, ADVOCATE)

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AND:

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M/S. KARA LEARNING PVT. LTD, REPRESENTED BY CEO, MRS. KATHEINE RUSTUMJI, NO.65, (A) OFFICER'S COLONY, OPPOSITE BDA COMPLEX, 4TH SECTOR, HSR LAYOUT BENGALURU - 560 034.

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…RESPONDENT

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(BY SRI.ANIL K.S, ADVOCATE)

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THIS MFA IS FILED U/S 30(1) OF THE EMPLOYEES COMPENSATION ACT, AGAINST THE ORDER DATED:18.06.2015 PASSED IN ECA NO.49/2015 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT

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MFA No. 8346 of 2015

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OF SMALL CAUSES AND MEMBER, MACT-7, BANGALORE, REJECTING THE APPLICATION FILED U/S 10 OF THE EMPLOYEES COMPENSATION ACT AND TO SET ASIDE THE SAME AND ETC.

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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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The present appeal is filed by the injured claimant challenging the order passed in ECA No.49/2015 on 18/06/2015 by the learned IX Additional Small Causes Judge & XXXIV ACMM, Court of Small Causes and Member, MACT-7, Bangalore, ('Tribunal' for short), wherein the application filed by the injured claimant under Section 10 of the Employee’s Compensation Act, 1923, r/w Section 5 of the Limitation Act, came to be rejected.

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2. Brief facts of the case are as below:

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The claimant joined the service of the respondent on 5-6-2006 initially as Facilitator, childcare' on a salary of

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Rs.4,000/- per month. The nature of the work of the appellant was to take care of two year old children and

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MFA No. 8346 of 2015

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help them with taking their foods and attend to their other

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needs, which involved lifting them and carrying them. The respondent promoted her as Carer (Care Taker) and increased her salary to Rs.4,350/- per month and after confirmation increased to Rs.4,500/- per month, however the work of the appellant remained the same.

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It was the further case of the claimant that,

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while on duty on 20-12-2007, at about 3.30 pm, on being called by her superior, crossed the hall and slipped on the water, which was spilt, resulting in grievous injury to her

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left hand and simple injury to the other parts. The claimant lost consciousness and was admitted by the respondent, in the hospital by name Green view Health Care Pvt. Ltd. the said accident, which arose out of and in

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the course of employment, resulted in multiple fractures in the left hand of the claimant. She was treated in the

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hospital as an inpatient from 20-12-2007 to 26-12-2007 and was also operated upon and implants were fixed. The

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MFA No. 8346 of 2015

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hospital authority after providing treatment to the appellant claimed a bill of Rs.42,875/- towards the treatment and hospital expenses. The claimant and her husband made several representations to settle the bill of the hospital, but the respondent did not respond and only a sum of Rs.25,000/- was paid to the hospital by the insurance company towards the medical bill, under the accident coverage policy. She had paid the remaining amount to the Hospital and thereafter also undergone treatment outside totally incurring expenses of

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Rs.45,203.26.

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It was further alleged that, the claimant's left hand

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was operated and rod was inserted while treating the multiple fracture and she was advised to undergo another operation for removal of the rod (implant) as apart of the treatment for the fractured hand caused by the employment injury. The doctor of Greenview Medical Centre as per their letter dt.08-08-2011 have estimated

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MFA No. 8346 of 2015

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cost of Rs.45,000/- for removal of implant. She further submits that on several occasions she requested the respondent to pay the balance medical expenses of Rs.45,203.26 which she had paid for treatment and requested for Rs.45,000/- for of rod (implant), but the respondent till date has not bothered to pay the same. Thereafter, the claimant sent a letter to the respondent on 20-07-2011 and on 02-09-2011 through RPAD and asked him to reimburse the above said amount but respondent has not paid the balance amounts of hospital expenses incurred nor prepared to bear the expenses towards the removal of the implant nor paid any compensation for the " total permanent disability'. The injury sustained to her left hand has resulted in 'Total Permanent Disablement' and to this day she is unable to lift weight or carry the children and has become incapable of performing the work, which she was last performing before the accident.

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The respondent inspite of her repeated requests is insisting her for doing the same work and is not prepared

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MFA No. 8346 of 2015

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to give her any lighter job and hence the claimant is without any employment or earning resulting in 100% loss of earning capacity. Therefore, she prayed to allow the petition.

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On issuance of summons, respondent-School appeared and contested the case denying all the averments made in the claim petition and contending that the petitioner has suppressed the material facts and that the petition is time barred and prayed to dismiss the petition.

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The Labour Officer and Commissioner for

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Workmen' Compensation, Bangalore, after considering the materials available on file, rejected the petition filed by the petitioner on the ground of delay on 9-10-2012.

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Being aggrieved by the same, the claimant has preferred MFA No.4486/2013 before this Court, which

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came to be allowed and the matter was remanded to the Tribunal for fresh consideration on 9-2-2015 with a

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MFA No. 8346 of 2015

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direction to give an opportunity for the parties to lead

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evidence and to dispose of the same.

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After the remand, the Tribunal, considering the

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oral and documentary evidence and other materials available on file and after hearing the learned counsel for both the parties, rejected the application filed under Section 10 of the Employees' Compensation Act, 1923 r/w Section 5 of the Limitation Act filed by the petitioner. Being aggrieved by the same, claimant has approached this Court in appeal.

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This Court, admitted the appeal on 15-03-2021 to

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consider the following substantial questions of law:

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Whether the trial Court justified in rejecting the claim petition on the ground that she has no locusstandi to claim the compensation towards permanent disablement?

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Whether the trail Court has properly exercised the discretionary power in considering the application for condonation of delay?

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MFA No. 8346 of 2015

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Whether the order of the trail Court is otherwise opposed to law and material evidence on record?

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Heard Shri A.J.Srinivasa, learned counsel for the

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appellant and Shri Anil K.S. learned counsel for the respondent and peruse the records.

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The Tribunal has dismissed the claim petition on

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the ground that the claimant had received the amount from the respondent-employer as a full and final settlement in ID No.21/2008 dated 12-12-2008 passed by

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the Labour Court, Bangalore. Further, the Tribunal has opined that the claimant had received the amount as full and final settlement as per Joint Memo filed by the claimant and the respondent-employer and therefore, dismissed the claim petition as claimant does not have locus standi.

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Learned counsel appearing for the

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appellant/injured claimant submitted that the claimant was terminated from service and therefore, she had raised

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MFA No. 8346 of 2015

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an industrial dispute before the Labour Court, Bangalore in ID No.21/2008. The Labour Court, had passed an award of reinstatement of the claimant with back wages and that is challenged before this Court by the respondent-employer in W.P.No.15851/2011. In the said writ petition, both the parties have filed a Joint Memo stating that the claimant would be reinstated with back wages and whatever amount received under the joint memo is only in respect of the back wages in lieu of termination of the claimant from services and this is nothing to do with the employment injuries sustained by her and compensation to be granted for the employment injuries. Therefore, he

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submitted that the Tribunal has committed an error in misconstruing the facts that the claimant has received the amount in full and final settlement. This is not correctly appreciated by the Tribunal which has resulted into the dismissal of the claim petition erroneously. Therefore, he

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prays to set aside the said judgment and award by awarding compensation for the disability sustained by the

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MFA No. 8346 of 2015

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claimant on account of injuries sustained by her out of and during the course of employment

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On the other hand, learned counsel for respondent-School Management submitted that, before this Court in W.P.No.15851/2011, the claimant has received the amount as full and final settlement and as such, the Management did not owe any amount to the claimant and therefore, the Tribunal has correctly dismissed the claim petition and justified the same and prays to dismiss the appeal.

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It is pertinent to note that, the claimant was working as a Facilitator in the respondent-School. The job of facilitator means, taking care of the children when the parents leave their children to the school. During such course of employment, the claimant had sustained employment injuries as she slipped on the floor in the school premises and sustained fracture of radius and ulna bone of left hand. Thereafter, the claimant had requested

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MFA No. 8346 of 2015

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the respondent-Management to assign any other job considering her nature of injury and disability sustained. But it is the case of the claimant that she was refused to give alternative job and ultimately respondent-School Management terminated her.

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Being aggrieved by the termination or deemed

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termination of the claimant from service, claimant had raised an industrial dispute under the provisions of the Industrial Disputes Act, 1947 before the Labour Court, Bangalore in ID No.21/2008. The Labour Court, Bangalore, had passed an award on 12-12-2008 directing reinstatement of claimant with back wages. The said award passed by the Labour Court in ID No.21/2008 dated 12-12-2008 was challenged before this Court in WP No.15851/2011. During the pendency of the said writ petition, both the claimant and respondent-School Management have filed a Joint Memo of Settlement. This Court, by placing on record the joint memo of settlement

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MFA No. 8346 of 2015

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disposed of the said writ petition and accordingly, modified the order passed by the Labour Court.

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But, the Tribunal has dismissed the claim petition

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of the petitioner as claimant does not have any locus

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standi, on the ground that, the claimant had received the amount in full and final settlement as per joint memo as recorded by this Court in the writ petition.

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The Tribunal has committed an error in misconstruing the facts alleged in the case and remedies available to the claimant on two aspects.

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The claimant approaching the Labour Court

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raising industrial dispute is regarding termination of her services by the respondent-School Management. The genesis of termination may be the claimant having sustained employment injuries. But approaching the Labour Court by the claimant is for seeking remedy of reinstatement into service with back wages. The Labour Court has passed the award directing the respondent-

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MFA No. 8346 of 2015

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School Management to reinstate the claimant with back wages. This is compromised before this Court in W.P.No.15851/2011. But the award passed by the Labour Court later which was modified as disposed by this Court is nothing to do with the right of the claimant for seeking compensation for having sustaining employment injuries occurred out of during the course of her employment. Therefore, whatever amount which were received by the claimant as per the joint memo of settlement filed before this Court in the writ petition is only in respect of the cause of action of terminating the services of the claimant from the school. The joint memo is very clear that, whatever the amount received from the respondent by the claimant is towards back wages as per the award passed by the Labour Court.

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Further, it is very clearly and specifically stated in the joint memo that the claimant has received the

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amount towards back wages as per the award. The

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MFA No. 8346 of 2015

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award means, which is passed by the Labour Court in the aforesaid ID No.21/2008. Whatever recited in the Joint Memo that the claimant has received full and final settlement is only in respect of the back wages and not on

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other heads which is clearly stated in the joint memo of settlement. The joint memo is filed by both the claimant and respondent-School Management along with their respective Advocates and accordingly, this Court has disposed of the said writ petition as per the joint memo of settlement. When this being the fact, the Tribunal has committed an error in dismissing the claim petition under the impression that the claimant has received the amount

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in full and final settlement. In which context, the claimant has received the amount in full and final settlement is not correctly appreciated by the Tribunal, as the claimant has received the amount from the respondent-School Management before this Court in writ petition as her back wages what the claimant is entitled due to the termination of her service by the respondent-

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MFA No. 8346 of 2015

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School Management. The receipt of the said amount is nothing to do with the right of the claimant's entitlement

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for receiving the compensation on account of the employment injuries sustained by her in the school. Therefore, the Tribunal has committed an error in not distinguishing between these two aspects while considering the case of the claimant.

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It is not disputed fact that the claimant being the Facilitator in the respondent-School Management, has sustained employment injuries and she has sustained fracture of radius and ulna of left hand. It is not disputed that the respondent had paid a sum of Rs.25,000/- when the claimant was in the hospital for taking treatment. Therefore, the Tribunal ought to have considered the case appreciating the fact that the claimant has sustained employment injuries and is entitled for compensation for having sustaining injury which has resulted in disability. But, misconstruing the factual matrix involved in the case,

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MFA No. 8346 of 2015

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the Tribunal has committed an error in dismissing the petition as discussed above. Therefore, the claimant is entitled for compensation for having sustaining injuries which occurred out of and during the course of employment which has resulted in disability. Therefore, the judgment and award passed by the Tribunal is liable to be set aside holding that the claimant is entitled for compensation.

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The claimant was working as the Facilitator in the respondent-School and has sustained fracture of radius and ulna bones of left hand during the course of her employment. The work of the Facilitator means looking after the children who were left by the parents in the school including lifting the children, cleaning, washing etc., and for such work, the claimant is required some strength. But due to the fracture sustained by her as stated above, the claimant, certainly, was not able to lift the children, lift the heavy objects like washing needs, lift the water filled

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MFA No. 8346 of 2015

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utensils like bucket etc. Therefore, to that extent, the claimant has sustained disability and this has to be compensated. The claimant's case is one of permanent partial disablement under Sub clause (ii) of Clause (c) of Sub Section (1) of Section 4.

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The claimant was aged about 37 years as on the

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date of the accident. Therefore, the relevant factor is, '192.14' as per Schedule 4 of the Employees' Compensation Act. Therefore, considering the nature of injuries sustained by the claimant, she might have sustained at least 10% disability as she has suffered fracture of radius and ulna bone of left hand. The accident had occurred on 20-12-2007. Therefore, the maximum monthly wage of the claimant is to be taken into consideration at Rs.4,000/-. Therefore, the loss of income due to disability is assessed and computed as:

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Rs.4,000/- x 60% x 10% x 192.14 = 46,113.6

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(which is rounded off to Rs.46,113/-).

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MFA No. 8346 of 2015

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Hence, the claimant is awarded the compensation

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of Rs.46,113/- along with interest at 12% p.a. from the date of the accident till its realization (excluding the interest for the delayed period of 68 days in filing the appeal). The substantial questions of law are answered accordingly.

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Hence, I pass the following:

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ORDER

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i. The appeal is allowed in part . ii. The impugned order dated 18.06.2015 passed in ECA No.49/2015 by the Tribunal is set aside.

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iii. The petition filed by the claimant is allowed in part by awarding the compensation of Rs.46,113/- along with interest at 12 % per annum from the date of the accident till its realization (excluding the interest for the delayed period of 68 days in filing the appeal).

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MFA No. 8346 of 2015

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iv. The respondent is directed to pay the said amount with interest within four weeks from the date of receipt of the copy of this order.

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

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vi. No costs.

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vii. Draw award accordingly.

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Sd/JUDGE

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tsn*

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List No.: 1 Sl No.: 34

Mrs John Mary v. M/S Kara Learning Pvt.Ltd

Case brief

What is this about?

What did the court decide?

Mrs John Mary v. M/S Kara Learning Pvt.Ltd

Case brief

What is this about?

What did the court decide?

What the court decided

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