Vilhas S/O Ankush Chendake Vs Vilhas S/O Shankar Mane and Ors.

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF WORKMAN COMPENSATION ACT, PAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED 18.12.2018 PASSED BY III ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION ACT, VIJAYAPURA IN E.C.A.NO.14/2014, 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 the judgment and award dated 18.12.2018 passed by II Additional Senior Civil Juge and Commissioner for Employees Compensation Act, Vijayapur in ECA no.14/2014, this appeal is filed.

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Sri Basavaraj R.Math, learned counsel for claimant/workman submitted that appellant was employed

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as coolie by respondent no.1 in his lorry bearing

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HC-KAR

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Reg.no.MH-04/P-1554. While he was in employment on 12.03.2009 vehicle was proceeding for unloading of material, it met with accident near Anadur village on Hyderabad-Solapur road. In said accident, claimant sustained grievous injuries resulting in loss of earning capacity, despite taking treatment. Therefore, he filed claim petition under Section 22 of Workmen’s Compensation Act against employer and Insurer.

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On appearance, petition was opposed. Employer accepted employment but disputed monthly salary as claimed. Vehicle being insured with respondent no.2 and its liability to pay compensation was also pleaded. Insurer admitted insuring vehicle but denied employment, age, occupation and income as well as disability suffered by claimant.

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Based on pleadings issues were framed. Thereafter, claimant led evidence, examined himself as PW.2 and Dr.Avinash Chitral, Orthopedic Surgeon as PW.1 and got marked documents Exs.P.1 to Ex.P.9. An

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HC-KAR

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employee of respondent no.2/insurer was examined as RW.1 and copy of Insurance Policy was got marked as Ex.R1.

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On consideration, Tribunal held relationship of

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employer and employee between claimant and respondent no.1 and occurrence of accident arising out of and during course of employment was established. It assessed monthly income of claimant at 4,000/- and applying factor of 197.06 corresponding to age of claimant at 35 years, assessed disability at 7% and awarded compensation of 33,106/-. It awarded same along with interest at 12% per annum from 12.04.2009.

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Dissatisfied with same, claimant was in appeal. It was submitted award of interest from one month after date of accident by Tribunal was contrary to decision of Hon’ble Supreme Court in case of Shobha and others vs.

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The Chairman, Vithalrao Shinde Sahakari Sakhar

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HC-KAR

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Karkhana Limited and others¹ . It was further submitted assessment of loss of earning capacity was ignoring assessment of disability by PW.1 – Doctor and same would constitute substantial questions of law. Hence, sought for answering same in favour of appellant and to allow appeal.

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Sri J.Augustin, learned counsel for respondent no.2 – Insurer sought to oppose appeal. It was submitted assessment of extent of disability by Tribunal would be finding of fact based on material produced and same would not constitute substantial question of law, to entertain appeal. It was submitted claimant had sustained fracture of lower end of left radius and ulna and fracture of metacarpal would not support 25% disability as assessed by PW.1 and Tribunal rightly disbelieved same and assessed it at 7%. On said ground, prayed for dismissing appeal.

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1 2022 SCC OnLine SC 308

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HC-KAR

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Heard learned counsel. Perused impugned judgment and award.

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With their consent matter is taken up for disposal on following substantial question of law :

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(i) Whether assessment of earning capacity by Tribunal was in ignorance of assessment by PW.1 – Doctor ?

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(ii) Whether award of interest was contrary to decision of Supreme Court in Shobha’s case (supra) ?

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As noted above, occurrence of accident, claimant sustaining injuries during course of and out of employment, liability of Insurer to pay compensation are not in dispute. Enhancement of compensation is prayed. By referring to Ex.P.6 – wound certificate and deposition of PW.1, Tribunal noted that claimant had sustained fracture of lower end of left radius and ulna and fracture of mid shaft of 3^rd metacarpal and base of 4^th metacarpal. Claimant is admittedly a coolie. In his deposition, (certified

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HC-KAR

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copy of which was made available by learned counsel for claimant for perusal of this Court), PW.1 has stated that on clinical examination claimant had sustained restriction of movements of left elbow and wrist i.e., flexion of elbow by 7%, dorsiflexion of wrist by 7.8% and deviation of radial and ulna at 27.2% which resulted in permanent physical disability at 25-30% to left upper limb. PW.1 did not asses loss of earning capacity. During crossexamination, suggestion about assessment of disability be excessive are denied. There is no contrary material placed to challenge assessment. While passing impugned award, Tribunal observed that PW.1 admitted assessment would be on upper side. In disability certificate as well as in deposition PW.1 has noted that fractures are united. There is no mention of mal-union. However considering fact that during clinical examination PW.1 observed restriction of movement of elbow and wrist, in light of claimant’s employment as coolie, it cannot be said that disability would not result in loss of earning capacity. Tribunal

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HC-KAR

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appears to have applied 1/4^th of limb disability as whole body disability formula which would not be appropriate. Taking note of above facts and circumstances, it would be appropriate to assess it as 10%. Consequential computation would be as follows :-

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4,000/- x 60% x 10% x 197.06 = 47,294/-.

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Substantial question of law no.1 is answered accordingly.

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Insofar as award of interest in view of decision

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in Shobha’s case (supra) wherein it is held interest would be payable from date of accident, substantial question of law no.2 has to be answered in affirmative. Consequently, following :

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ORDER

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Appeal is allowed in part.

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Claimant is held entitled for `47,294/- with interest

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at 12% per annum from date of incident i.e., 12.03.2009 till payment.

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