M Mohan Kumar Vs M.N.Kempe Gowda

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1)(a) OF EMPLOYEES COMPENSATION ACT, 1923 AGAINST THE JUDGMENT AND AWARD DATED 19.07.2021 PASSED IN ECA NO.100/2018 ON THE FILE OF THE XXIV ADDITIONAL SCJ AND ACMM AND MEMBER, MACT, BENGALURU, SCCH-26, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶25

THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 27.01.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE FOLLOWING:

¶26

CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE C.M. POONACHA

¶27

CAV JUDGMENT

¶28

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

¶29

Questioning the adequacy of compensation awarded to him, petitioner in ECA No.100/2018 on the file of the XXIV Addl. Small Causes Judge and MACT & ACMM, Bengaluru has preferred this appeal under Section 30(1)(a) of the Employees Compensation Act, 1923 (for short ‘the Act’).

¶30

Appellant was the petitioner, respondent Nos.1 and 2 were respondent Nos.1 and 2 in ECA NO.100/2018. Admittedly the Trial Court is appointed as Commissioner under Section 20 of the Act. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Commissioner.

¶31

3 -

¶32

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶33

First respondent is the owner of lorry bearing registration No.KA-02-AD-3144. He had employed the petitioner as driver in the said lorry. On 15.04.2018 at 9.15 p.m. when the petitioner was driving the said lorry near Pragathi Grameena Bank, NH4 within the limits of Chitradurga Traffic Police Station the said lorry hit the tractor and trailer bearing Nos.KA-16-TA-1455 & KA-16-T-9850. In the accident, one of the inmates of the tractor-trailer died and another inmate by name Nagaraj suffered grievous injuries. In the accident, petitioner also suffered grievous injuries on his legs. On the complaint of Nagaraj, Chitradurga Traffic Police registered FIR/Ex.P1 against the petitioner. On investigation, the said police filed charge sheet/Ex.P2 against the petitioner for the offences punishable under Sections 279, 337, 338 and Section 304A of IPC alleging that accident occurred due to his actionable negligence.

¶34

Petitioner filed ECA No.100/2018 before the Commissioner under Section 22 of the Act read with Rule 20 of the Employee’s Compensation Rules, 1924 claiming compensation of Rs.27,00,000/-. He alleged that the accident and injuries are caused to him during the course of his

¶35

4 -

¶36

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶37

employment as driver, therefore, respondent No.1/employer and respondent No.2/Insurer of the lorry are liable to pay the said compensation.

¶38

Respondent No.1 did not contest the petition. Respondent No.2 alone contested the petition contending that the petitioner is covered under the provisions of Employee’s State Insurance Act, 1948, he availed the benefits under the scheme for the accidental injuries. Therefore his claim is not maintainable. Respondent No.2 though admitted the issuance of insurance policy covering the risk of the driver, contended that the same is subject to terms and conditions of the policy which is enumerated at Schedule-IV of the Act. Further the petitioner was put to strict proof of his age, income, avocation and permanent disability.

¶39

To substantiate his claim the petitioner himself got examined as PW.1, his wife was examined as PW.2, one Mahesh Kumar was examined as PW3. PW.4/the official of ESI Hospital, Rajajinagar was summoned to produce Exs.P27 to 36 from the said hospital and to speak about the same. PW.5/the doctor of M.S.Ramaiah hospital, Bengaluru was examined to prove the disability of the claimant. On behalf of the petitioner

¶40

5 - NC: 2025:KHC:5750-DB MFA No.6155/2021

¶41

Ex.1 to P43 were marked. Respondents did not adduce any evidence.

¶42

7. Commissioner by the impugned judgment and

¶43

award held that the petitioner suffered accidental injuries during the course of his employment under the first respondent as driver of lorry bearing No.KA-02-AD-3144. Commissioner based on the notification issued by Ministry of Labour and Employment dated 31.05.2010 in 1258(E) considered his monthly wage at Rs.8,000/-. Though the doctor/PW.5 assessed the disability at 31%, Commissioner considered the same at 20%, applied the factor of 199.40 and awarded compensation of Rs.1,91,424 on the head of loss of future earning capacity. Commissioner in all awarded compensation

¶44

of Rs.2,38,427/- on different heads as follows:

¶45

Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of future earning capacity	1,91,424/-
2.	Medical expenses	37,003/-
3.	Incidental & attendant charges	10,000/-
	Total	2,38,427/-

¶46

6 - NC: 2025:KHC:5750-DB MFA No.6155/2021

¶47

Respondents have not challenged the award on any

¶48

ground. Therefore, the award against them has become final. Petitioner has challenged the award on the ground that in the accident, the petitioner has suffered 100% functional disability to both lower limbs. Therefore, the percentage of permanent physical disability considered by the Tribunal is on the lower side etc.

¶49

Before this Court the appellant has filed IA No.1/2024 under Order XLI rule 27 of CPC for production of medical certificate said to have been issued by PW.5/doctor on 21.07.2023 assessing functional disability of the appellant at 100% and some photographs. The said application is opposed by respondent No.2. As the same is required to be considered along with the main matter, the said application is taken up for consideration along with the main matter.

¶50

Submissions of Sri T.C.Sathish Kumar, learned counsel for the petitioner:

¶51

Petitioner is a driver by profession. The evidence on record shows that he had suffered fractures in both legs and underwent several surgeries. The medical evidence shows that his fractures were not properly united and he was admitted into

¶52

7 - NC: 2025:KHC:5750-DB MFA No.6155/2021

¶53

the hospital several times and underwent several surgeries. It

¶54

is clear that he was totally incapable to undertake driving work. Therefore, Commissioner should have considered 100% disability. PW5/the Doctor deposed only about permanent physical disability and not about the functional disability. During the pendency of this appeal he has issued the certificate assessing the functional disability at 100%. Therefore, the said document needs to be taken on record and compensation ought to be awarded considering functional disability at 100%. He further submits that the compensation awarded on medical expenses and the other heads is on the lower side.

¶55

In support of his submissions he relies on the following judgments:

¶56

i) Chanappa Nagappa Muchalagoda vs. Divisional Manager, New India Insurance Co. Ltd¹ .

¶57

ii) Indra Bai vs. Oriental Insurance Co. Ltd & another²

¶58

Submissions of Sri C.R.Ravishankar, learned counsel for respondent No.2.

¶59

There was no material to show that the claimant/petitioner had suffered 100% physical or functional

¶60

1 AIR 2020 SC 166

¶61

2 Civil Appeal No.4492/2023 (DD 17.07.2023)

¶62

8 -

¶63

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶64

disability and his own witness PW.5 assessed the disability at 31%. Therefore the Commissioner was justified in assessing the disability at 20%. The compensation awarded is in accordance with Section 4(1) of the Act. The judgments relied on by the appellant’s counsel are not applicable. So far as additional evidence, the said document is produced at a highly belated stage only to make wrongful gain, therefore liable to be rejected.

¶65

This appeal was admitted to consider the following substantial question of law:

¶66

“Whether the compensation awarded by the Commissioner is in accordance with Section 4(1) & (2A) of the Employees Compensation Act, 1923 ?”

¶67

Analysis

¶68

There is no dispute that on 15.04.2018 at 9.15 p.m.

¶69

when the petitioner was driving the lorry bearing registration No.KA-02-AD-3144, he hit the tractor and trailer No.KA-16 T 9850 and in the accident he suffered injuries. As already noted the respondents have not challenged the finding regarding the occurrence of the accident during the course of employment. Ex.P2/charge sheet produced by the petitioner shows that he was charge-sheeted alleging that he himself drove the lorry in

¶70

9 -

¶71

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶72

rash and negligent manner, caused the accident leading to death of one person and grievous injury to another person who were in the tractor trailer. An appeal under Section 30 of the Act lies only on a substantial question. It is not on par with claim petition under Section 166 of the Motor Vehicles Act or an appeal arising under the provisions of the said Act. Therefore, material on record should be considered within the scope of the substantial question of law framed in the matter.

¶73

The evidence of PW.5 shows that the petitioner was put up with External fixators in both leg. On 01.06.2018 both fixators were removed. The medical evidence adduced by the petitioner before the Commissioner shows that he underwent surgeries for the fractures and petitioner’s own witness PW.5 assessed his overall disability at 31% to the whole body. PW.5 in his affidavit evidence by way of chief examination did not whisper anything about total functional disability of the petitioner. Though learned Counsel for the petitioner in the oral evidence of PW5 got elicited that the petitioner has 100% occupational disability, but he had not issued disability certificate to that effect. Apart from that the petitioner did not adduce evidence to show that his driving licence was cancelled

¶74

10 - NC: 2025:KHC:5750-DB MFA No.6155/2021

¶75

on the ground of disability or he had surrendered the same.

¶76

Even before this Court, no evidence is produced to that effect.

¶77

So far as additional evidence, the records show that

¶78

PW.5 has filed his affidavit evidence on 28.01.2021. He was further examined on 12.02.2021. Commissioner passed the impugned order on 19.07.2021. This appeal is pending since 2021. I.A.No.1/2024 to adduce additional evidence is filed on 12.02.2024. Absolutely no reasons are forthcoming in the evidence for not producing such alleged disability certificate at the required stage of the proceedings. The said document does not even state that such functional disability of 100% was assessed on the basis of examination of the petitioner conducted on such date. It is also not stated why the said doctor did not issue such certificate at appropriate stage. Therefore, there are no grounds to entertain such application at such belated stage and application deserves no merit. However, when PW.5 assessed disability at 31%, the Commissioner was in error in reducing the same to 20% without assigning any reasons.

¶79

Grant of compensation under the Act is covered by Section 4 of the Act. Section 4(1)(a) of the Act deals with

¶80

11 -

¶81

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶82

cases where the death of employee takes place during the

¶83

course of employment. The same is inapplicable in this case. Section 4(1)(b) applies to the cases where permanent total disability results from the injuries that occurred during the course of employment. Section 4(1)(c) applies to the cases where permanent partial disablement results from the injuries suffered during the course of employment.

¶84

As per the evidence of PW.5 and the medical

¶85

records produced by his witnesses, petitioner had suffered the following injuries:

¶86

“i) Type 3 B open fracture of both bones of right leg ii) right proximal tibia fracture iii) right hip dislocation iv) Left distal tibia fracture”

¶87

Injuries suffered by the petitioner was not covered

¶88

under Part I and Part II of Schedule-I of the Act. In such

¶89

cases, Section 4(1)(c) of the Act applies which reads as under:

¶90

“4. Amount of compensation. —(1)Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

¶91

(a) XXX (b) XXX

¶92

(c) Where permanent (i) in the case of an injury partial disablement result specified in Part II of from the injury Schedule I such percentage of

¶93

12 -

¶94

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶95

the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and

¶96

(ii) in the case of an injury not specified in Schedule I such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;

¶97

Explanation I .— Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.

¶98

Explanation II. — In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;

¶99

20. Photographs produced along with I.A.No.1/2024 are

¶100

not even primary evidence. On the basis of the same, it cannot be said that he has suffered 100% functional disability, more particularly when he has not produced any evidence regarding cancellation of driving licence. In view of the above quoted Section and the affidavit of PW.5, disability has to be assessed

¶101

13 - NC: 2025:KHC:5750-DB MFA No.6155/2021

¶102

at 31%. The applicable factor is 199.40. The Commissioner

¶103

was right in considering wages at Rs.8,000/- per month based on Central Government Notification and applying 60% of the monthly wages of the petitioner. Under the above circumstances, the Commissioner should have awarded compensation towards future earning capacity as follows:

¶104

Rs.8,000/- x 60% =Rs.4,800/-

¶105

4800 x 199.40 X 31= Rs.2,96,707/-. 100

¶106

Reading of the judgments relied on by learned counsel for the petitioner shows that in those cases there was medical evidence regarding proof of functional disability as claimed. Therefore, in those cases the functional disability was assessed as per the said medical evidence. They cannot be justifiably applied to the facts of the present case.

¶107

In para 29 and 30 of the impugned award, the Commissioner on detailed examination of the documents has awarded compensation of Rs.37,003/towards medical expenses. Though it is contended that even after the award the petitioner has incurred certain expenses, no material is produced for the same. Section 4(2A) specifically states that

¶108

14 -

¶109

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶110

the actual medical expenses incurred has to be reimbursed.

¶111

Therefore, the award needs no interference on that aspect.

¶112

Incidental expenses is also awarded considering the

¶113

material on record. The Commissioner is justified in awarding Rs.10,000/- for incidental charges.

¶114

The Compensation payable as per Section 4 of the

¶115

Act is as follows:

¶116

Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of future earning capacity	2,96,707/-
2.	Medical expenses	37,003/-
3.	Incidental and attendant charges	10,000/-
	Total	3,43,710/-
	Less: Awarded by the Commissioner	2,38,427/-
	Enhanced compensation	1,05,283/-

¶117

Substantial question of law is answered accordingly.

¶118

Hence the following:

¶119

ORDER

¶120

i) IA No.1/2024 is hereby rejected.

¶121

ii) The appeal is allowed in part.

¶122

iii) The impugned order is modified as follows:

¶123

15 -

¶124

NC: 2025:KHC:5750-DB MFA No.6155/2021

¶125

a) Petitioner-employee is entitled to enhanced compensation of Rs.1,05,283/payable by respondent No.2/Insurer.

¶126

b) The said enhanced compensation shall carry interest at 12% p.a. from the date of accident till its realization.

¶127

c) Respondent No.2/Insurer shall deposit the said amount within one month from the date of this judgment.

¶128

d) If respondent No.2 fails to pay the said amount within the specified time, liberty is reserved to the petitioner to proceed in accordance with Section

¶129

4A(3)(b) of the Act.

¶130

Sd/(K.S.MUDAGAL) JUDGE

¶131

Sd/(C.M. POONACHA) JUDGE

¶132

Akc/KSR

M Mohan Kumar v. M.N.Kempe Gowda

Case brief

What is this about?

What did the court decide?

M Mohan Kumar v. M.N.Kempe Gowda

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Sahana H.K. Vs Sri. Naveen H P

Mr. Chandrakanth Pai Vs Smt. Shakunthala

Mr Kishore Vs Mrs Niveditha R

The Managing Director Ksrtc Vs Smt Bhagyamma

Smt Padma Vs Monika

Mrs Roshella D Costa Vs Mr Joe Ashwin Correa