Sri B C Prakash Vs the Divisional Controller

THIS MFA IS FILED U/S 30(1) OF WORKMEN'S COMPENSATION ACT AGAINST THE JUDGMENT AND DECREE DATED 26.9.2015 PASSED IN E.C.A.NO.28/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, KADUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶22

2 - NC: 2026:KHC:34182 MFA No. 9524 of 2015 C/W MFA No. 2845 of 2016

¶23

HC-KAR

¶24

IN MFA NO. 2845/2016

¶25

BETWEEN:

¶26

KARNATAKA STATE ROAD TRANSPORT CORPORATION CHIKKAMAGALUR DISTRICT CHIKKAMAGALUR - 577 101. BY ITS DIVISIONAL CONTROLLR REPRESENTED BY ITS CHIEF LAW OFFICER.

¶27

...APPELLANT

¶28

(BY SMT. RENUKA H.R, ADVOCATE)

¶29

AND:

¶30

B.C. PRAKASH S/O CHANDRAPPA AGED ABOUT 47 YEARS BUS DRIVER BADGE NO.13328 KSRTC DEPOT, KADUR CHIKMAGALUR DISTRICT - 577 101.

¶31

...RESPONDENT

¶32

(BY SRI. C.T. PARAMESHWARAPPA, ADVOCATE)

¶33

THIS MFA IS FILED U/S.30(1) OF WCA ACT, AGAINST THE JUDGMENT AND AWARD DATED 26.09.2015 PASSED ON ECA NO.28/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, KADUR, ALLOWING THE PETITION FILED U/S.22 OF WORKMEN'S COMPENSATION ACT.

¶34

THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶35

CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

¶36

3 - NC: 2026:KHC:34182 MFA No. 9524 of 2015 C/W MFA No. 2845 of 2016

¶37

HC-KAR

¶38

ORAL JUDGMENT

¶39

MFA.No.9524/2015 is filed by the injured/claimant and MFA.No.2845/2016 is filed by the Division Controller KSRTC and under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 26.09.2015 passed in ECA.No.28/2014 on the file of the Senior Civil Judge, Kadur Chikmagaluru District.

¶40

Heard the arguments of learned counsel for the appellant and learned counsel for the respondent. The ranks of the parties are retained as per Tribunal for the sake of convenience.

¶41

The injured/claimant met with an accident on 10.11.2008 and filed the claim petition claiming compensation. The Tribunal considering the entire evidence on record granted an amount of Rs.54,000/- and directed the respondent to pay the amount in 60 days, failing which they are directed to pay interest at the rate of 6% per annum from the date of default till the date of deposit. Aggrieved by the said order, he preferred appeal and mainly contended that, the claimant sustained 40% disability and unable to do the job of driver. He

¶42

4 - NC: 2026:KHC:34182 MFA No. 9524 of 2015 C/W MFA No. 2845 of 2016

¶43

HC-KAR

¶44

was employed in Division Office as office assistant and he is getting increment of attender. The respondent has not paid 6 months salary during the period of treatment and rest. He was aged 43 years and earning a salary of Rs.6,000/- per month. He paid salary only for 83 days and he has taken treatment/rest from 10.11.2008 to 26.03.2009. As he was unfit to drive the commercial vehicle/bus carrying passengers and he is visual handicap of one eye blind. He produced attendance certificate as Ex.P8. The respondent has not filed any document to show that they paid salary to him during the said period i.e. March, 2009 to August, 2010. Though he sustained a disability of 40%, the Tribunal has taken the disability as 30%. He was appointed in a job of assistant which is lower than the job of driver and the salary is also lower. Therefore, requested to set aside the award of the Senior Civil Judge and enhancement of compensation.

¶45

The Division Controller of KSRTC has filed another appeal and mainly contended that, the compensation granted under Employees Compensation Act is unsustainable. The claimant was provided with change of cadre work. He is working as Office Assistant in the Corporation. There is no loss

¶46

5 - NC: 2026:KHC:34182 MFA No. 9524 of 2015 C/W MFA No. 2845 of 2016

¶47

HC-KAR

¶48

of income on account of the disability suffered by the workmen. He has not examined the doctor in support of the disability suffered by him. The Tribunal has considered his income Rs.15,000/- per month and Rs.1,80,000/- per annum which is contrary to the provisions of Workmen's Compensation Act. Accident occurred in the year 2008 as per Section 4 of the Workmen's Compensation Act, income is to be assessed at Rs.4,000/- per month. The Court below has not followed the provisions of the Employees Compensation Act while assessing the loss of income and thus following substantial questions of law are to be framed:

¶49

"1. Whether the Court below was justified in assessing the disability at 30%, computing the compensation on the said basis in the absence of any loss of income to the respondent as the employer had protected his pay by providing change of cadre?

¶50

2. Whether the Court below committed an error in considering the monthly income of the respondent at Rs.15,500/- per month which is in excess of statutory ceiling limit provided under the act at the time of accident?

¶51

3. Whether the assessment of Disability at 30% is justified in the absence of evidence of medical

¶52

6 - NC: 2026:KHC:34182 MFA No. 9524 of 2015 C/W MFA No. 2845 of 2016

¶53

HC-KAR

¶54

practitioner certifying the disability suffered by the claimant?"

¶55

Learned counsel for the Divisional Controller relied

¶56

upon the judgment of the Co-ordinate Bench of this Court in the case of The Divisional Controller NEKRTC Bidar V.s Sri.

¶57

Mohammed Shareef in MFA.No.30715/2010 (MV), DD 06.08.2014 in which it was observed as follows:

¶58

"The case of the claimant is that on account of the injuries that he has sustained he is disabled to an extent of 35% in performing his day to day activities as an employee. It is on this base, his claim has been set up. However, the material on record which is undisputed, is that there is no loss of income. That he is drawing the same salary that he had drawn earlier. There is no reduction in pay nor it is the case of the claimant that he has been denied any promotion or otherwise due to the permanent disability. Notwithstanding the fact that there is a disability certificate, the same has not been come in the way of the claimant receiving the same salary, that he is entitled to. Therefore, it would mean that in spite of the accident as well as the disability certificate, there is no loss of income in any manner. Under these circumstances, the claim set up for compensation would not arise. Compensation is necessarily to be granted in case of loss of earning and not otherwise. Under these circumstances, I am of the considered view that the

¶59

7 - NC: 2026:KHC:34182 MFA No. 9524 of 2015 C/W MFA No. 2845 of 2016

¶60

HC-KAR

¶61

order or the Commissioner is perverse in holding that the claimant is entitled to compensation."

¶62

Learned counsel for the respondent/claimant also

¶63

relied upon the citation in K. Janardhan V.s United India Insurance Company Limited and Another¹ . It is a case of amputation and moreover, he has stated that he was a tanker driver and he is not an employee of the Corporation. Learned counsel for the Division Controller contended that the facts of the said citation are not applicable to the facts of this case. He filed Ex.P1 the disability certificate issued by the doctor, but the doctor is not examined before the Tribunal. In the said certificate it is stated that, there is loss of vision and disability is assessed as 40%. As the petitioner could not examine the doctor, Tribunal has rightly considered the disability as 30%. The Tribunal has relied upon Section 4(c) of the Employees Compensation Act, at paragraph No.14 which reads as under:

¶64

"Section 4(c) of Employees Compensation Act states that "in case of permanent partial disablement result from the injury, the percentage of compensation payable to the employee is as specified in part II of schedule I". The serial No.26(a) of the part II of schedule I stated that

¶65

1 (2008) 8 SCC 518

¶66

8 - NC: 2026:KHC:34182 MFA No. 9524 of 2015 C/W MFA No. 2845 of 2016

¶67

HC-KAR

¶68

"for loss of vision of one eye, without complications or disfigurement of eyeball, the other being normal, the percentage of loss of earring capacity would be 30%."

¶69

Admittedly, the petitioner driver met with an accident on 10.11.2008 during the course of employment and sustained injury to the right eye and also had loss of vision as such the Corporation provided an alternate employment to him and appointed him as Office Assistant with a pay protection. His contention is that he was given a lower cadre than the driver cannot be accepted. Admittedly, as per the loss of vision he cannot drive the commercial vehicle, as such he was rightly accommodated in the office. Once the Corporation has taken care of their employee with full pay protection, again he is not entitled for compensation. Therefore, the order of the Senior Civil Judge regarding granting of compensation to an extent of Rs.54,000/- is not on proper possession of facts or law and is liable to be set aside.

¶70