Sri. K.R.Afsarulla Khan Vs M/S Sharma Transports

SRI K.R. AFSARULLA KHAN S/O. AHAMEDULLA KHAN AGED ABOUT 48 YEARS RESIDING AT NO.259 SFS 407, 4TH PHASE 2ND CROSS, OPP. MOTHER DAIRY YELAHANKA NEW TOWN BENGALURU-64.

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…APPELLANT

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(BY SMT. SUGUNA R. REDDY, ADVOCATE)

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AND:

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Digitally signed by ANJALI M Location: High Court of Karnataka

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M/S. SHARMA TRANSPORTS NO.158/177, RAJ MANDIRAM NATIONAL HIGH SCHOOL ROAD BASAVANAGUDI BENGALURU-4.

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THE BRANCH MANAGER ICICI LOMBARD GEN. INS. CO. LTD. 1ST FLOOR, NO.62/1 PRESTIGE CORTICH RICHMOND ROAD BENGALURU-25.

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…RESPONDENTS

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(BY SRI PRADEEP B., ADVOCATE FOR R-2;

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VIDE C/O DATED 16-6-2021, NOTICE TO R-1 IS DISPENSED WITH)

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1)(a) of WORKMEN COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 19-2-2016 PASSED IN ECA NO.226 OF 2014 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSE JUDGE, & XXXII ACMM, MEMBER, MACT-3, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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Heard learned counsel for the appellant and learned counsel for respondent No.2.

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The appellant has filed this appeal under Section 30(1) (a) of Workmen Compensation Act, 1923 for enhancement of compensation being aggrieved by the judgment and award dated 19.02.2016 passed by Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (for short, 'Tribunal') in E.C.A.No.226/2014, whereby the Tribunal awarded a compensation of Rs.1,99,548/- alongwith interest at the rate of 12% per annum and hence seeking enhancement of compensation.

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HC-KAR

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For the sake of convenience, the parties are referred to as

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they are referred to in the claim petition before the Tribunal.

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Brief facts of the claimant's case before the Tribunal are that :-

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On 13.02.2011, the appellant/claimant, who was working under respondent No.1 as a driver in a Volvo Bus bearing registration No.KA-05-AC-0347 drove the bus to Thiruvananthapuram, Kerala via Salem-Erode of Tamilnadu from Bangalore and when he reached near Perundurai, the bus met with an accident, as a result of which, he sustained grievous injuries all over the body and immediately after the accident, he was shifted to local hospital and later he was shifted to Live-100, Bengaluru. Thereafter, he lodged the complaint, which led to FIR and investigation.

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Learned counsel Smt. Suguna R., appearing for the appellant/claimant contended that the Tribunal considered the notional income of the appellant at Rs.8,000/- p.m., by discarding the positive evidence on record, that the employer admitted the wages of the appellant in addition to batta, and that the said evidence was not controverted by the Insurance company. Further, the evidence of the Medical Practitioner clearly demonstrates that the claimant sustained 100% functional disability and that he will not be in a position to do his work as driver of heavy passenger vehicle, but

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HC-KAR

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the Tribunal considered the disability at 25%, which is in the lower side. Further, the claimant has furnished medical bills, which works out to Rs.1,79,002/-. But the Tribunal has not considered certain medical bills for the simple reason that those medical bills were not marked. Infact, the Tribunal is required to reimburse the actual medical expenses incurred by the claimant as per Section 4(2A) Employees Compensation Act, 1923.

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Per contra , learned counsel Sri Pradeep B, for respondent No.2-Insurance company contended that the Tribunal considering the oral and documentary evidence on record has rightly granted fair and just compensation. Hence, no interference is called for.

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In view of the submissions made by learned counsels and on perusal of the material available on record, the following substantial questions of law arises for our consideration in this appeal:-

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Whether the MACT was right in discarding positive evidence adduced by the appellant with regard to wages and also in the light of admission of employer with regard to special allowances in terms of daily bata as a driver in heavy passenger vehicle though which evidence remained unchallenged?

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Whether the court below was right in discarding the evidence of medical practitioner in respect of functional disability sustained by the appellant as 100% being a driver of Volvo bus?

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Whether the court below was right in taking the whole body disability in order to assess the

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HC-KAR

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compensation on mere surmises and conjectures by ignoring material evidence on record?

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Whether the MACT was right in not awarding any amount towards medical expenditure incurred by the appellant merely because the medical bills were not marked in evidence though he shall be compensated towards the same as per Section 4(2A) of Employees Compensation Act, 1923 ?

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The claimant in order to substantiate his contention,

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examined himself as PW.1 and also examined Dr. P.V. Manohar as PW.2 and one eyewitness to the incident viz., Sri. M. Sugirtha Raj as PW-3 and relied upon Exs-P1 to P23. According to the claimant, due to the injuries sustained in the road traffic accident, he sustained permanent disability, he has lost control of left leg and he can no longer drive the vehicle in view of permanent disability. To substantiate this contention, he has produced the medical records and disability certificates and also examined PW-2 Orthopedic Surgeon, who has stated that the petitioner has functional disability at 100% and left lower limb disability at 75% and whole body disability at 25%. Therefore, the Tribunal considered 25% disability of the whole body, which is on the lower side. Infact, prior to the accident, the claimant was driver of Volvo bus and while considering the nature of the injuries sustained and disability, the claimant must have sustained more than 75% disability to the whole body. Hence, the whole body disability is assessed at 70% which is fair and

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HC-KAR

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reasonable. The Tribunal considering the material available on record, assessed the monthly income of the claimant at Rs.8,000/p.m. Prior to the accident, the age of the claimant was 46 years. Hence, the factor 166.1 is applicable, for his age group. Therefore, as per Section 4(1) (b), where permanent total disablement results from the injury, an amount equal to 60% of the monthly wages of the injured employee multiplied by relevant factor is to be taken and hence, 60% of Rs.8,000/-= works out to Rs.4,800/- Then, loss of income would be Rs.5,58,096/-(Rs.4,800 x 166.1 x70%/100). Hence, the claimant is entitled to Rs.5,58,096/- towards 'loss of future earning capacity'.

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So far as medical expenses is concerned, the Tribunal has not granted any compensation. The claimant has filed I.A. 2/2016 under Order 41 Rule 27 CPC read with Section 151 CPC and furnished affidavit, copy of examination-in-chief of the claimant dated 28.08.2012 and copy of the calculated list of medical expenses and pharmacy charges filed by the applicant and submits that due to oversight, those documents were not marked in evidence, before the Tribunal. Therefore, we assess global compensation of Rs.1.00 lakh towards 'medical expenses'. Hence, the claimants are entitled for a total compensation of Rs.6,58,096/- as against Rs.1,99,548/awarded by the Tribunal.

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HC-KAR

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Accordingly, we pass the following:-

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ORDER

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The appeal is allowed in part.

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The judgment and award dated 19.02.2016 passed by Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru in E.C.A.No.226/2014, is modified to the extent stated hereinabove.

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The appellant/claimant is entitled for additional compensation of Rs.4,58,548/- together with interest at the rate of 12% per annum after 30 days from the date of the *accident.

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Respondent No.2- Insurance Company is directed to deposit enhanced compensation amount together within interest at 12% p.a. within six weeks from the date of receipt of copy of this judgment.

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