Partly allowed

Shashikumar v. Anand Gowda

Karnataka HC14 Oct 2024MFA/9146/2015

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenges an award for compensation from a motor accident during employment. The High Court found the Commissioner erred in assessing wage and disability. The Court reassessed disability at 18.7%, increased compensation to Rs.2,26,700, and directed the insurer to deposit the amount.

What did the court decide?

Total compensation increased to Rs.2,26,700 with 12% interest. Respondent No.2 directed to deposit the amount within six weeks.

Shashikumar Vs Anand Gowda — Karnataka HC (2024) — LawSathi Research

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NC: 2024:KHC:41337-DB MFA No.9146/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF OCTOBER, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.9146 OF 2015 (WC)

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BETWEEN:

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SHASHIKUMAR S/O SHIVEGOWDA AGED ABOUT 28 YEARS R/AT NO.6, I CROSS 9TH B MAIN NAGARABHAVI MAIN ROAD BYRAVESHWARANAGAR BANGALORE-72

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…APPELLANT

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. A.K. BHAT, ADV., APPOINTED AS AMICUS CURIAE)

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AND:

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ANAND GOWDA

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S/O BYRAHANUMAIAH NO.66, NARNAHALLI VILLAGE DODDABELAVANGALA POST DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT-561204.

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RELIANCE GENERAL INSURANCE CO LTD NO.28, V FLOOR, EAST WING CENTENARY BUILDING M G ROAD, BANGALURU-560 001

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…RESPONDENTS

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(BY SRI. D. VIJAY KUMAR, ADV., FOR R2 V/O DTD: 16.03.2023 NOTICE TO R1 IS D/W)

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2 - NC: 2024:KHC:41337-DB MFA No.9146/2015

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THIS MFA IS FILED U/S.30(1)(a) OF THE EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 31.08.2015 PASSED ON ECA NO.334/2014 ON THE FILE OF THE 3RD ADDITIONAL SENIOR CIVIL JUDGE & MEMBER OF MACT, COURT OF SMALL CAUSES, BENGALURU, ALLOWING THE PETITION FILED U/S.22 OF WORKMEN COMPENSATION ACT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL

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and

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL)

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Challenging the judgment and award dated 31.08.2015, the petitioner in E.C.A. No.334/2014 on the file of the III Addl. Senior Civil Judge and MACT, Bangalore, has preferred this appeal.

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The appellant was the petitioner and respondent Nos.1 and 2 in this appeal were respondent Nos.1 and 2 before the Commissioner. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Commissioner.

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The injured petitioner filed claim petition before the Commissioner under the provisions of Workmen's

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Compensation Act, 1923, seeking compensation for the accidental injuries suffered by him. It was contended that on 15.02.2014, when petitioner was driving lorry bearing registration No.KA-43-4466 owned by respondent No.1, same dashed a stationary lorry bearing registration No.TN-30-AQ9630. It was further contended that the petitioner suffered grievous injuries. He was initially treated at Government Hospital, Chitradurga and later shifted to Victoria Hospital, Bengaluru. It was also contended that due to the road accident, petitioner suffered disability which resulted in loss of earning capacity and also incurred substantial amount towards treatment and other incidental expenses. It was alleged that the accident in question occurred during the course of employment, petitioner was aged about 25 years and earning wages at Rs.12,000/- p.m. He filed claim petition seeking for compensation.

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Respondent No.1 - owner of the offending vehicle filed objections denying his liability. It is contended that the lorry involved in the accident was insured with respondent No.2 and as on the date of accident, the insurance policy was in force. Respondent No.2 - insurer filed objections denying its

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liability to pay compensation. It was contended that police have filed charge sheet against the petitioner as accused No.2 for the negligent driving of offending lorry and that he contributed to the accident in question. They have denied the age, avocation, income and disability of the petitioner and sought for dismissal of the claim petition.

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The Commissioner recorded the evidence. The petitioner examined himself as PW-1 and other two witnesses as PW-2 and PW-3 and on his behalf Exs.P1 to P19 were marked. The respondent did not adduce oral evidence but with consent got marked Ex.R1. The Commissioner, on appreciation of the oral and documentary evidence, partly allowed the claim petition awarding compensation of Rs.1,88,500/- with interest @ 12%p.a. from the date of accident till deposit. Being aggrieved, the petitioner is in appeal seeking for higher compensation.

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Sri.A.K.Bhat, learned Amicus Curiae appearing for petitioner submits that the Commissioner committed error in assessing the wage of the injured as well as his disability. It is submitted that the petitioner specifically pleaded and deposed

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before the Commissioner that he was drawing a wage at Rs.12,000/- p.m. However, the Commissioner considered the wage as Rs.8,000/- p.m. It is further submitted that the Commissioner failed to appreciate the evidence of PW-3 who had assessed the disability to the left lower limb at 37.4% and 18.7% to the whole body. However, without any reasons, the Commissioner considered the disability at 15% to the whole body which is contrary to the evidence on record. Hence, he seeks to re-assess the same by allowing the appeal.

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Per contra, Sri.D.Vijaykumar, learned counsel appearing for respondent No.2 supports the impugned judgment and award of the Commissioner and submits that the petitioner did not produce any evidence in proof of wage at Rs.12,000/p.m. and considering the minimum wage notification issued under the Act, the Commissioner assessed the wage which does not call for any modification. He submits that PW-3 assessed the disability at 37.4% to the left lower limb and generally 1/3^rd of the same has to be taken as disability to whole body to assess compensation. Considering the same, the assessment of disability by the Commissioner is proper. Hence, he seeks to dismiss the appeal.

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Considering the rival submissions of the parties and

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examining the materials on record including the Trial Court record, the following substantial question of law arises for consideration:

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"Whether the Commissioner was justified in assessing the income and permanent physical disability of the petitioner overlooking the evidence on record?"

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ANALYSIS

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The pleading and evidence on record indicate that in the motor accident that occurred on 15.02.2014, petitioner sustained grievous injuries. The evidence on record further indicates that petitioner was working as driver in lorry bearing registration No.KA-43-4466 which was owned by respondent No.1. It is also not in dispute that the accident in question occurred during the course of employment. The Commissioner recorded the detailed finding that the jural relationship of employer and employee is proved by the petitioner. The said finding of the Commissioner is based on the pleading and oral evidence on record which does not call for any interference.

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Sofar as claim of wage by the petitioner, except petitioner's self-serving statement, there is no evidence whatsoever on record with regard to drawing of wage by the petitioner at Rs.12,000/- p.m. The Commissioner, considering the minimum wage notification issued by the Central Government, rightly assessed the wage of the injured petitioner at Rs.8,000/- p.m. which does not call for any interference.

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Regarding the assessment of disability, the Commissioner has considered 15% as disability to the whole body and awarded compensation. Ex.P-5, the wound certificate, and Ex.P-7, discharge summary, indicate six injuries and fracture. PW-2 deposed that the petitioner has taken treatment at Victoria Hospital and through the said witness the documents were marked. PW-3 Dr.S.Ramachandra, Orthopedic Surgeon, has deposed that the petitioner has been treated for (i) Closed segmental fracture of tibia and fibula of left leg with skin necrosis, (ii) Fracture of head of 5^th metatarsal phalanges of 2, 3 and 5^th toes of left foot, (iii) Blunt injury over abdomen with jejunal perforation. He further deposed that on examining the petitioner he is of the opinion that the petitioner has suffered 37.4% disability of left lower limb and 18.7% (19%) of

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whole body. The treated doctor came to the conclusion that the petitioner suffered physical disability to the extent of 18.7% to the whole body. PW-3, while arriving for such conclusion, has detailed his reasons at para Nos.4 to 6 of the evidence. The said witness has been cross-examined by the contesting respondents, however nothing contrary could be elicited.

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Considering the oral testimony of PW-3 and other medical evidence on record, we are of the considered view that the Commissioner has erred in assessing the disability of the petitioner at 15% without any basis and such assessment is contrary to the evidence available on record. On reappreciation of the medical evidence available on record, we are of the considered view that it would be just and appropriate to re-assess the physical disability of the petitioner at 18.7% to the whole body. Insofar as award of compensation under the head of medical expenses by the Commissioner is unaltered as the same is based on actual medical expenses incurred by the petitioner. Having assessed the physical disability of the petitioner at 18.7%, we re-determine the compensation under the head of loss of earning capacity as under:

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NC: 2024:KHC:41337-DB MFA No.9146/2015

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Rs.8,000 X 60% X 216.91 x 18.7% = 1,94,698.41 which is rounded off to Rs.1,94,700/- .

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Thus, the petitioner is entitled to compensation of Rs.1,94,700/- towards loss of earning capacity and Rs.32,000/towards medical expenses. In total, the petitioner is entitled to compensation of Rs.2,26,700/- (Rs.1,94,700 + Rs.32,000).

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For the aforementioned reasons, we proceed to pass the following :

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ORDER

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i. Appeal is allowed in part.

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ii. The appellant-petitioner is entitled to total compensation of Rs.2,26,700/- with interest at 12% p.a. from the date of accident till the date of deposit.

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iii. Respondent No.2 is directed to deposit the entire compensation amount with accrued interest before the Commissioner within a period of six (06) weeks from the date of receipt of certified copy of this judgment.

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iv. The impugned judgment and award of the Commissioner is unaltered sofar it relates to release and investment of compensation.

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v. Registry to draw modified award accordingly.

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10 -

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NC: 2024:KHC:41337-DB MFA No.9146/2015

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vi. This Court places on record its appreciation for the able assistance rendered by Sri. A.K. Bhat, learned Amicus Curiae. Registry shall release honourium of Rs.15,000/- to him.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL)

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JUDGE

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RV/BSR List No.: 1 Sl No.: 34

Shashikumar v. Anand Gowda

Case brief

What is this about?

What did the court decide?

Shashikumar v. Anand Gowda

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

Coram

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