Partly allowed

National Insurance Company Ltd. v. Junaid

Karnataka HC20 Jan 2023MFA/8685/2016

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's first appeal partially. The Court modified the award because the Commissioner incorrectly used Rs.4,000 monthly wage and 100% earnings instead of Rs.8,000 and 60%. Disability was recalculated at 13% whole body. Compensation fixed at Rs.1,32,156 with interest.

What did the court decide?

Compensation enhanced to Rs. 1,32,156/- with interest at 12% p.a. from date of accident. Impugned award modified.

National Insurance Company Ltd. Vs Junaid — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 8685 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^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.8685 OF 2016 (WC)

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BETWEEN:

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NATIONAL INSURANCE COMPANY LTD., 1ST FLOOR, BHARATH BUILDING, K S ROAD, MANGALURU TALUK, DAKSHINA KANNADA DISTRICT, REP. BY ITS MANAGER

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…APPELLANT

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Digitally signed by PAVITHRA B Location: HIGH COURT OF KARNATAKA

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(BY SMT. RENUKA H.R., ADVOCATE)

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AND:

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JUNAID S/O. LATE. MOHAMMED, AGED ABOUT 30 YEARS, R/AT KADAVINABAGILU HOUSE, ELANTHILA POST, BELTANGADY TALUK, PRESENTLY R/AT OM NIVAS, PADEEL BAJAL, MANGALURU TALUK-575007. DAKSHINA KANNADA DISTRICT

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SHAFIK S/O. K.A.V.SIDDIQUE, ADULT, R/AT UPPINANGADY, PUTTUR TALUK 574241, DAKSHINA KANNADA DISTRICT

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MFA No. 8685 of 2016

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SHASHIKALA SUVARNA D/O LATE B.P.BABU, ADULT, R/AT KANIYOOR HOUSE, KANIYOOR VILLAGE AND POST, PUTTUR TALUK-574328. DAKSHINA KANNADA DISTRICT

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…RESPONDENTS

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(BY SRI B.R.GURUPRASAD, ADVOCATE FOR R1; R2, R3 ARE SERVED & UNREPRESENTED)

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THIS MFA IS FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED:29.06.2016 PASSED IN ECA NO.98/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, & COMMISSIONER OF WORKMEN'S COMPENSATION, MANGALURU, D.K., AWARDING COMPENSATION OF Rs.1,77,904/- WITH INTEREST @ 12% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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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 appellant-

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Insurance Company challenging the judgment and award dated 29.06.2016 in ECA.No.98/2014 passed by the Prl. Senior Civil Judge & Commissioner of Workmen’s Compensation, Mangaluru, D.K., questioning the quantum of compensation.

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MFA No. 8685 of 2016

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Brief facts of the case are that, on 07.08.2013 when the claimant was proceeding by driving a car bearing Reg.No.KA-20/N-4177 from Uppinangady towards Mangaluru and when he reached in front of Melkar Junction Indian Oil Petrol Bunk, Panemangalore village, Bantwal Taluk at about 4.00 pm., a lorry bearing Reg.No.KA-19/C-8464 driven by its driver in a rash and negligent manner and dashed against the claimant’s car. Due to the impact, the claimant sustained grievous injuries all over his body.

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Heard the arguments from both sides and perused the records.

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This Court on 19.06.2019 has framed the following substantial questions of law:

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“Appeal is admitted to consider the following substantial questions of law:-

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i) Whether the Commissioner for Employees’ Compensation/Tribunal is justified in coming to the conclusion that 100% of monthly wages cannot be taken for the purpose of calculating compensation in view of Section 4(1)(b) of the

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MFA No. 8685 of 2016

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Employees’ Compensation Act, 1923 which enables only 60% of total monthly wages which has to be taken for calculating the compensation in case of injury?

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ii) Whether the Commissioner for Employees’ Compensation/Tribunal is justified in ignoring the loss of earning capacity at 21% for the whole body though there is evidence of the doctor-P.W.2?

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Upon hearing the arguments, the Court finds that one more substantial question of law is to be framed:

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“Whether the Commissioner for Employee’s Compensation is justified in taking wage of Rs.4,000/- per month only contrary to Section 4 of Employee’s Compensation Act?”

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All the substantial questions of law are taken

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together for common consideration as it involves common question of facts and law and therefore, they are taken up for consideration.

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In the present case, the relationship of

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employer and employee is not disputed and also the liability of the appellant/Insurance Company to pay

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MFA No. 8685 of 2016

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lumpsum compensation determined or to be determined is also not disputed.

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The Tribunal has held the monthly wage at Rs.4,000/- pm. The accident was caused on 07.08.2013. Therefore, as per Section 4 of the Employees’ Compensation Act, monthly income at Rs.8,000/- is to be taken into consideration. In the present case, the claimant had suffered restricted movement and weakness of right hip joint and muscle weakness Grade II and there is 10 degree terminal restriction of movement of right hip joint and 15 degree terminal restriction of movement of abduction on the right hip joint and he further found that there is 10 degree terminal restriction of movement of hip joint and there is restriction of movement of lateral rotation on the right hip joint. Therefore, the doctor-P.W.2 had stated that the claimant had suffered 21% of permanent physical disability to the right lower limb. The doctor had not stated the disability applicable to the whole body. In the present case, disability sustained is partial

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MFA No. 8685 of 2016

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permanent disability and holding disability at 21% is on the higher side. Considering the nature of injuries sustained and as it is non-schedule injury, therefore, 13% of disability is to be taken into consideration towards the whole body considering the fact that the claimant had sustained partial permanent disability. Accordingly, the disability is taken at 13%.

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The Tribunal has committed error in taking wage at Rs.4,000/- pm., but ought to have been taken at Rs.8,000/- pm. The claimant was aged 28 years as on the date of the accident, therefore, the relevant factor is 211.79. Further the Tribunal has committed error in considering 100% wage, but 60% of wage ought to have been considered. Hence, the loss of earning capacity due to disability is re-assessed and quantified as follows:

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Rs.8,000/- x 60% x 13% x 211.79=Rs.1,32,156/-

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Accordingly, compensation of Rs.1,32,156/- is

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awarded under the head loss of earning capacity due to disability.

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MFA No. 8685 of 2016

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The rate of interest awarded by the Tribunal is

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correct. Hence, it is kept in tact. Therefore, the Insurance Company shall pay the above determined compensation amount along with interest as observed by the Tribunal/learned Commissioner. 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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ii. The impugned judgment and award dated 29.06.2016 in ECA.No.98/2014 passed by the Prl. Senior Civil Judge & Commissioner of Workmen’s Compensation, Mangaluru, D.K., is modified to the extent that the appellant/claimant is entitled to compensation of Rs.1,32,156/- with interest at 12% pa., from the date of accident till its realization.

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MFA No. 8685 of 2016

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iii. The amount in deposit made by the Insurance Company shall be transferred to the Tribunal/learned Commissioner.

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iv. If the amount deposited is in excess, the same shall be refunded to the Insurance Company.

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v. Registry is directed to transmit the TCR along with copy of this order to the Tribunal/learned Commissioner.

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vi. No order as to costs.

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Sd/JUDGE

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PB List No.: 1 Sl No.: 54

National Insurance Company Ltd. v. Junaid

Case brief

What is this about?

What did the court decide?

National Insurance Company Ltd. v. Junaid

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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