Jahir S/O Ahmad @ Javid Pathan Vs Abdul Kudus and Anr.

ABDUL KUDUS S/O USMANSAHEB BULULKHAN, AGE: MAJOR, OCC: OWNER OF MARUTI ERTIGA CAR VEHICLE ITS BEARING REG.NO.MH.45/BN-7863, R/O: HOTAGI STATION, TQ: SOUTH SOLAPUR, DIST: SOLAPUR – 413 215.

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THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., GURUKUL ROAD, VIJAYAPUR – 586 101.

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…RESPONDENTS

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(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH)

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF WORKMAN COMPENSATION ACT, PAYING TO CALL FOR RECORDS AND MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED 17.11.2018 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION, VIJAYAPURA IN E.C.A.NO.151/2016, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 17.11.2018 passed by II Addl. Senior Civil Judge and Commissioner for Employees' Compensation, Vijayapura (for short, 'Tribunal') in ECA No.151/2016, this appeal is filed.

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Sri Basavaraj R.Math, learned counsel for appellant/claimant would submit that while working as driver on monthly wages of Rs.15,000/- and daily bhata of Rs.100/- in vehicle bearing registration No.MH-13/BN-7863 owned by his employer-respondent no.1, vehicle met with accident at about 8.30 p.m., near Chikala Cross of Jamboti-Chorala road. In said accident, claimant sustained injuries to his stomach, leg, etc and was shifted to Belgaum Institute of Medical Science,

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HC-KAR

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Belagum, for treatment. He was later shifted to Civil Hospital, Solapur and to Yeshodhara Hospital, Solapur, wherein he underwent operations spending Rs.2,50,000/- towards medical treatment. Alleging that injuries had led to claimant sustaining permanent physical disability and loss of earning capacity, he filed application under Section 22 of Employees’ Compensation Act, 1923, against owner/employer and insurer.

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On service of notice, respondents appeared and filed separate objections. Owner admitted occurrence of accident and vehicle being insured with respondent no.2. But denied income as claimed by claimant. Insurer opposed petition denying age, occupation and monthly income as well as suffering of permanent physical disability. Based on pleadings, following issues were framed;

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ISSUES

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Whether the petitioner proves that, he has sustained grievous injuries in employment with Respondent No.1 as a driver as being alleged?

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Whether the petitioner proves that, he has sustained grievous injuries during the course and arising out of employment under the Respondent No.1 as an employee?

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Whether the Respondent No.2 proves that, due to violation of policy conditions, they are not liable to pay the compensation?

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HC-KAR

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Whether the petitioner is entitled for compensation? If so, how much and from whom?

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What order or award?

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Claimant examined himself as PW.1 and doctor was

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examined as PW.2. Exs.P1 to P13 were marked. Insurer did not lead oral evidence and insurance policies were got marked with consent as Exs.R1 and R2.

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On consideration, Tribunal held relationship of claimant with respondent as employee-employer established, accident had occurred during course and arising out of employment and claimant was entitled for compensation. Taking monthly income of claimant at Rs.7,000/-, disability @ 10% & applying factor of 211.79 corresponding to claimant aged of 28 years, awarded Rs.88,951/- towards loss of future earning capacity. It also awarded medical expenses to tune of Rs.1,29,618/- corresponding to value for which medical bills were produced. Thus, total compensation of Rs.2,18,600/- was awarded with interest @ 12% p.a. from 30 days after date of accident.

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HC-KAR

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It was submitted while passing impugned judgment and award, Tribunal erred in taking monthly income of claimant at Rs.7,000/- only. It was further submitted, award of interest from one month after date of accident was also contrary to law. Even assessment of loss of earning capacity at only 10% was contrary to material on record and therefore substantial question of law would arise for consideration.

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On other hand, Sri Sanjay M.Joshi, learned counsel

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for respondent no.2 sought to support award and oppose appeal.

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Heard learned counsel and perused impugned

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judgment and award.

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Appeal was admitted to consider following

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substantial question of law:

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“Whether assessment of compensation by Tribunal is contrary to law especially Notification issued under Section 4 of E.C.Act and Ex.P13?”

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HC-KAR

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And with consent of learned counsel for parties, it is

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taken up for final disposal.

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This appeal is by claimant seeking for enhancement of compensation. Relationship of employee, employer and insurer between appellant, respondents no.1 and 2 are not in dispute. Occurrence of accident on 13.06.2015 involving insured vehicle, claimant sustaining injuries leading to permanent physical disability and consequent loss of earning capacity as well as liability of insurer to pay compensation are not in dispute. Grievance of claimant is about assessment being contrary to law and material on record.

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Insofar as monthly income, claimant had asserted it to be Rs.15,000/- per month and Rs.100/- per day as bhata but denied by employer. Admittedly, accident occurred on 13.06.2015, which is after issuance of notification by Union Ministry of Labour and Employment in S.O.1258 (E) on 31.05.2010, stipulating 8,000/- as monthly wages under Section 4(1B) of E.C. Act, for purposes of Section 4(1) thereof. Therefore, Commissioner/Tribunal would not be justified in taking monthly income at 6,000/-. This Court has in

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HC-KAR

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innumerable matters held same to be mandatory. Therefore, assessment would be contrary to provisions of E.C. Act.

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Likewise, in view of ratio laid down by Hon’ble Supreme Court in case of Shobha and others v. The Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Limited and others¹ interest under Employees Compensation Act would be payable at 12% per annum from date of incident. Therefore, award of interest from one month after date of incident would also be contrary to law.

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Insofar as contention about assessment of compensation towards loss of earning capacity being contrary to material on record, it is seen claimant alleged that he sustained blunt injury to his abdomen resulting in intestinal injury and for which he underwent laparoctomy. Due to same, he claimed to be suffering from 15% permanent physical disability. To substantiate same, he relied on treatment records, medical bills, prescription, scan reports, etc., issued by Yeshodhara Hospital, Solapur as Exs.P8 to P12. However, same were got marked noting objections about proof of contents.

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1 2022 SCC OnLine SC 308

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HC-KAR

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Admittedly, claimant did not examine any official from Yeshodhara Hospital, Solapur, to prove contents. PW.2Dr.S.S.Bedar, examined by claimant did not treat claimant. In cross-examination (certified copy of which was made available by learned counsel for claimant for perusal by this Court), he admitted Ex.P13, disability certificate was issued two years after date of accident by referring to treatment records issued by Yeshodhara Hospital and without any fresh clinical or other examination/test. He also admitted that injury to abdomen had healed. Suggestions about assessment being excessive are denied.

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While passing impugned award, Tribunal assessed loss of earning capacity at 10% as against 15% by PW.2. When assessment of permanent physical disability by Tribunal is on due consideration of documentary and oral evidence and by assigning reasons, same would not be open for challenge on ground of perversity. Moderation of assessment by Tribunal was taking note of admissions by PW.2. Therefore, assessment of permanent physical disability would not call for interference.

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HC-KAR

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Thus, re-computation of compensation towards loss

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of earning capacity would be as follows:

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Rs.8000/- X 60% X 211.79 X 10% = Rs.1,01,659.2/-.

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Award of Rs.1,29,618/- under other heads is undisturbed. Thus, total re-assessed award would be Rs.2,31,277.2/- along with interest @ 12% per annum from date of accident. Substantial question of law is answered partly in affirmative. Consequently, following :

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ORDER

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