Dismissed

Bajaj Allianz Insurance Co.Ltd v. C .Sivaraj

Kerala HC7 Jun 2024MFA (ECC)/28/2023

Case brief

AI extract

What is this about?

Insurer appealed an Employee's Compensation Commissioner's award to an injured workman. The High Court upheld reliance on later medical treatment evidence linking it to the 2007 accident, accepted the Medical Board's 25% loss of earning capacity finding, and sustained interest under Section 4A(3). Appeal dismissed with costs.

What the court decided

AI extract

Bajaj Allianz Insurance Co.Ltd Vs C .Sivaraj — Insurance | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE G.GIRISH

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FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946

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MFA (ECC) NO. 28 OF 2023

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AGAINST THE ORDER DATED 28.03.2022 IN ECC NO.29 OF 2014 OF
COMMISSIONER FOR EMPLOYEES COMPENSATION, (INDUSTRIAL
TRIBUNAL, PALAKKAD

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APPELLANT/2ND OPPOSITE PARTY:

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BAJAJ ALLIANZ INSURANCE CO.LTD
DOOR NO. 11, PEOPLES PARK, 3RD FLOOR, GOVT. ARTS
COLLEGE ROAD, COIMBATORE-641018 , REPRESENTED BY ITS
SENIOR LEGAL EXECUTIVE, 3RD FLOOR, COASTAL CHAMBERS,
RAVIPURAM, KOCHI, PIN - 682026

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BY ADVS.
GEORGE A.CHERIAN
LATHA SUSAN CHERIAN
GEORGE CHERIAN (SR.)

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RESPONDENTS/APPLICANT & 1^ST OPPOSITE PARTY:

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1 C .SIVARAJ

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S/O CHINNARAJ GOUNDER, "BINDU" , KOVILPALAYAM,
PUDUSSERY. P.O., PALAKKAD, PIN - 678623

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2 MANAGING DIRECTOR

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SEPR REFRACTORIES INDIA LIMITED, KTC JUNCTION,
KANJIKODE, PALAKKAD., PIN - 678621

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BY ADVS.
THAREEQ ANVER K
P.K.MOHANAN(PALAKKAD)(K/174/1987)

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THIS MFA (ECC) HAVING COME UP FOR HEARING ON 29.05.2024,
THE COURT ON 07.06.2024 DELIVERED THE FOLLOWING:

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M.F.A (ECC) No.28/2023

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G.GIRISH, J.

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--------------M.F.A (ECC) No.28 of 2023

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------------------------------

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Dated this the 7^th day of June, 2024

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-------------------------------------------------

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J U D G M E N T

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The 2^nd respondent insurance company in E.C.C.No.28/2014 of the files of the Court of Employee’s Compensation Commissioner (Industrial Tribunal), Palakkad, is the appellant in this case. The order under challenge is one dated 28.03.2022 awarding a compensation of Rs.91,854/- with interest @ 12% per

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annum to the 1^st respondent herein who sustained injury to his right knee during the course of employment under the 2^nd respondent.

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It is stated that the 1^st respondent, who was a workman in the manufacturing unit of the 2^nd respondent, was hit

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on his right knee with a mould and its case while pushing the conveyor, at about 10 a.m on 02.07.2007, while working in the shift from 8 a.m to 4 p.m. The 1^st respondent was immediately taken to R.V.Clinic, Palakkad and administered treatment there.

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M.F.A (ECC) No.28/2023

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From 06.07.2007 to 11.07.2007, he was said to have been admitted in that hospital and undergone treatment for severe contusion injury on the right knee. According to the 1^st respondent, the pain and disability due to the above injury subsisted, though he resumed duty at the establishment of the 2^nd respondent. On 10.03.2010, the 1^st respondent is said to have approached Kovai Medical Centre, Coimbatore for the treatment of the aforesaid injury which continued to trouble him with pain and sufferings. In the above hospital, the 1^st respondent is said to have undergone reconstruction using PTB auto graft and partial meniscectomy of the lateral meniscus of right knee joint on 25.03.2010. He is said to have remained in that hospital as inpatient from 25.03.2010 to 29.03.2010 related to the above surgery. The medical bills related to the said treatment are said to have been met by the 2^nd respondent. In the application filed before the Employee’s Compensation Commissioner, Palakkad, the 1^st respondent claimed a total compensation of Rs.1,66,366/- on the basis of a contention that he was drawing monthly wages to the tune of Rs.17,000/-.

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The 2^nd respondent, in his written statement filed

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before the trial court, admitted the employer-employee relationship with the 1^st respondent, as well as the injuries

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M.F.A (ECC) No.28/2023

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sustained by the 1^st respondent in an accident during the course of employment on 02.07.2007. According to the 2^nd respondent, treatment was provided to the 1^st respondent as per the company’s medical scheme. However, the 2^nd respondent disputed the contention of the 1^st respondent about the persistence of the injury and pain leading to the surgery and treatment at Kovai Medical Centre, Coimbatore. According to the 2^nd respondent, if at all the 1^st respondent had undergone any such treatment, it could only be due to any ailment which is not related to the accident occurred on 02.07.2007. The 2^nd respondent also contended that the monthly wages of the 1^st respondent during 2007 was only Rs.11,901/-, and that he did not suffer any disability due to the accident which occurred on 02.07.2007. The 1^st respondent is said to be working in the company of the 2^nd respondent and showing the same level of performance as earlier. According to the 2^nd respondent, if at all the 1^st respondent is entitled for any compensation, it has to be paid by the appellant insurance company.

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The appellant insurance company filed written statement before the Employee’s Compensation Commissioner denying the employer-employee relationship between the 1^st and 2^nd respondents, and also the contention of the 1^st respondent

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M.F.A (ECC) No.28/2023

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about the accident sustained during the course of employment with the 2^nd respondent. The appellant further disputed the monthly wages of the 1^st respondent and the disability said to have been sustained as a result of the accident.

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Before the learned Employee’s Compensation Commissioner, the 1^st respondent and one witness were examined as AW1 and AW2 and 11 documents marked as Exts.A1 to A11. The medical examination report of the 1^st respondent, issued by the Medical Board of District Hospital, Palakkad, was marked as Ext.X1. The respondent No.2 and the appellant did not choose to adduce any evidence before the trial court.

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After hearing all the parties, and after having an evaluation of the evidence adduced, the learned Employee’s Compensation Commissioner fixed the compensation amount due to the 1^st respondent at Rs.91,854/-. Interest @ 12% per annum with effect from 02.07.2007 was also awarded. The appellant insurance company was mulcted with the liability to pay the aforesaid amount to the 1^st respondent.

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In the present appeal, the appellant insurance company would contend that the power and authority of the Employee’s Compensation Commissioner to award compensation

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M.F.A (ECC) No.28/2023

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to the 1^st respondent for the minor injuries sustained in the year 2007 which were said to have been treated in the year 2010, and the fixing of loss of earning capacity at 25% as against 12% assessed by the Medical Board, are the substantial questions of law to be considered. It is also stated that the award of interest for the compensation amount is beyond the scope of the Workmen’s compensation policy.

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Heard the learned counsel for the appellant and the learned counsel for the 1^st respondent.

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The challenge in this appeal is mainly pointed against the award of compensation to the 1^st respondent for the injury suffered by him in the year 2007, by placing reliance on the evidence relating to the treatment undergone by him in the year 2010. According to the learned counsel for the appellant, the Employee’s Compensation Commissioner went wrong in relying on the evidence pertaining to the treatment undergone by the 1^st respondent for the complaints of his right knee in the year 2010, to arrive at the conclusion about the disability said to have been suffered in the accident which occurred in the year 2007. However, a reading of the impugned order of the learned Employee’s Compensation Commissioner would reveal that he

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M.F.A (ECC) No.28/2023

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arrived at the finding in the above regard by rightly appreciating the evidence tendered by the 1^st respondent as AW1 in the context of the medical records marked as Exts.A1 to A3. Ext.A1 treatment certificate dated 20.05.2010 would disclose the treatment administered to the 1^st respondent at the time when he attended R.V.Clinic and Hospital, Palakkad at about 10.40 a.m on 02.07.2007 with the complaint of right knee pain following the trauma sustained while working in the establishment of the 2^nd respondent. As per the above treatment certificate, the 1^st respondent was seen in the O.P department on 06.07.2007 and 11.07.2007, and his condition had improved. Thereafter, the 1^st respondent is stated to have gone for native treatment and oil massage before his return after four months with internal derangement of right knee with quadriceps muscles. It is also stated in the said certificate that the 1^st respondent did not turn up thereafter. Exts.A2 and A3 are medical records issued by the Kovai Medical Centre and Hospital, Coimbatore pertaining to the treatment administered there to the 1^st respondent for the complaint of his right knee joint. There is absolutely no illegality or perversity in the course adopted by the learned Employee’s Compensation Commissioner by relying on the evidence of AW1 and the documents marked as Exts.A1 to A3 towards arriving at

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M.F.A (ECC) No.28/2023

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the finding that the treatment undergone by the 1^st respondent in the year 2010 for his right knee complaint was in connection with the injury sustained by him in the accident occurred on 02.07.2007 during the course of employment with the 2^nd respondent.

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The next challenge in this appeal is against the fixing of loss of earning capacity of the 1^st respondent as 25%, and the calculation of compensation on the basis of the above finding. The learned counsel for the appellant would contend that the trial court overstepped the finding of the Medical Board about the disability of the 1^st respondent as 12%, and fixed the compensation assuming 25% loss of earning capacity without any basis. It is not possible to accept the argument advanced by the learned counsel for the appellant in the above regard since it is clear from Ext.X1 medical report issued by the special Medical Board consisting of an orthopaedic consultant, physician and the Superintendent of District Hospital, Palakkad that the loss of earning capacity of the 1^st respondent is 25%, though the disability assessed as whole body is 12%. It is not possible to doubt the veracity of the finding of the special Medical Board in the above regard in the absence of any reliable material to the contra.

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M.F.A (ECC) No.28/2023

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The learned counsel for the appellant would contend that there was absolutely no disability, and much less any loss of earning capacity for the 1^st respondent since it is revealed from the evidence adduced before the trial court that the 1^st respondent resumed his employment with the 2^nd respondent within a short period after the accident of 02.07.2007, and started receiving monthly emoluments at the same rate as that of the pre-accident period. For the above reason, the appellant challenges the award of compensation to the 1^st respondent. It is not possible to accept the argument of the learned counsel for the appellant in the above regard in view of the provisions contained in Section 3(1) of the Employee’s Compensation Act. It is to be noted that as per the proviso to Section 3(1) of the Employee’s Compensation Act, 1923, the only contingency where the employer is not liable to make payment of compensation for the personal injury sustained by the employee in an accident arising out of the course of employment is when the injury sustained by the employee does not result in the total or partial disablement of the employee for a period not exceeding three days. As far as the present case is concerned, the evidence on record would reveal that the employee resumed work with the 2^nd respondent after about 20 days from the date of the accident, and he continued to suffer the trauma

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M.F.A (ECC) No.28/2023

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caused as a result of the injury sustained in the accident for a period of about three years, till the treatment undergone at Kovai Medical Center and Hospital, Coimbatore in the month of March, 2010 for right ACL Reconstruction using PTB autograft, and partial meniscectomy of lateral meniscus of right knee joint. Therefore, it is not possible to say that the 1^st respondent had not suffered any disability or loss of earning capacity as a result of the accident suffered by him on 02.07.2007 during the course of employment with the 2^nd respondent. The learned Employee’s Compensation Commissioner cannot be found fault with for relying on the percentage of loss of earning capacity indicated in Ext.X1 medical report of the special Medical Board as 25%, and making the calculation of the compensation amount upon the above footing.

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There is also no merit in the challenge against the award of interest for the compensation amount since it is clearly covered by Section 4A of the Employee’s Compensation Act, 1923. The rate of interest at 12% is permissible under Sub Section (3) of Section 4A of the said Act. Therefore, the challenge against the order of the Employee’s Compensation Commissioner directing the appellant to make payment of interest for the award amount, cannot be sustained.

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M.F.A (ECC) No.28/2023

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In conclusion to the above discussion, I find no reason

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to interfere with the order under challenge.

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The appeal is found to be devoid of merit, and hence

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dismissed with the costs of 1^st respondent.

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(sd/-)

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G.GIRISH, JUDGE

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jsr/vgd

Bajaj Allianz Insurance Co.Ltd v. C .Sivaraj

Case brief

What is this about?

What the court decided

Bajaj Allianz Insurance Co.Ltd v. C .Sivaraj

Case brief

What is this about?

What the court decided

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