IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.24759 OF 2012 (WC)
BETWEEN:
RELIANCE GENERAL INSURANCE CO. LTD.,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, CTS, 472-474, V A KALBURGI
SQUARE, DESAI CIRCLE, DESHPANDE NAGAR,
HUBLI.
...APPELLANT
(BY SRI.NAGARAJ C KOLLOORI, ADVOCATE)
AND:
1. SRI. BASAPPA S/O SHARANAPPA HAVALAD
AGE:28 YEARS, OCC:DRIVER,
R/O BAGEVADI, TQ:MUNDARAGI,
DIST:GADAG.
2. SRI. BASAVARAJ S/O VENKAPPA
AGE:42 YEARS, OCC:BUSINESS,
AT BELLATII, TQ:SHIRATTI,
DIST:GADAG.
...RESPONDENTS
(BY SRI.CHANDRASHEKHAR M HOSAMANI, ADV. FOR R1)
(NOTICE TO R2 IS DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS AND
TO SET-ASIDE THE JUDGMENT AND AWARD DATED 31.8.2012 PASSED
BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, SUB-DIVISION-II, HUBLI IN WCA/NF NO.36/2011.
THIS HON'BLE COURT MAY PASS ANY SUCH ORDERS AS DEEMS FIT
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UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE
COSTS OF THE ABOVE PROCEEDING IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is at the instance of the insurer calling in question the legality and validity of the award dated 31.8.2012 passed in WCA/NF-36/2011 by the learned Labour Officer and Commissioner for Workmen's Compensation, Sub-division-II, Hubli (for short, 'Commissioner').
2. Brief facts are that the claimant was working as driver in Tempo Trax bearing registration No.KA-26/M-584 owned by respondent No.1-Basavaraj Venkappa and insured with the appellant herein. On 2.5.2010, while the claimant was driving the said tempo trax as per instructions of respondent No.1, it met with an accident resulting in grievous injuries to him. In connection with the said accident, a case in Crime No.85/2010 was registered in Kundagol Police Station.
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3. Respondent No.1 before the learned Commissioner did not file any written statement. The appellant herein filed a separate and detailed written statement denying the averments made in the claim petition.
4. The claimant examined himself as PW1 and also he examined one qualified medical practitioner by name Dr.G. Shivappa, Orthopedic Surgeon as PW2 and Exs.P1 to P7 were marked. The appellant-insurer did not examine any witness.
5. Upon appreciation of the materials produced and the evidence let in, the learned Commissioner answered the points arising for consideration in favour of the claimant and awarded a compensation of Rs.2,28,733/- with interest thereon at 12% per annum.
6. Learned counsel appearing for the appellant- insurer strenuously contended that the quantum of compensation awarded by the learned Commissioner is on the higher side. In support of the same, he submits that disability suffered by the claimant is a schedule injury and as per the Schedule attached to the Employees' 4 Compensation Act, 1923, amputation of right index finger with loss of one phalanx is to the extent of 9% in loss of earning capacity. He refers me to entry at Sl.No.29 of Part-II of Schedule-I of the Act for the said purpose. His further submission is that since PW2, Medical Expert has assessed loss of earning capacity at 40%, it is based on no evidence and perverse. Therefore, the compensation awarded by the learned Commissioner is required to be reduced suitably. He therefore, prays that the appeal is required to be allowed to the said extent.
7. Learned counsel for respondent/claimant, on the other hand, vehemently contends that the evidence has clearly demonstrated that the claimant was working as driver and loss of one phalanx of right index finger has almost deprived him of capacity to drive commercial vehicle and his employability in the labour market as driver has been completely taken away on account of the injury suffered by him. Learned counsel further submitted that the learned Commissioner having taken note of the diminished potentiality of the claimant to work as driver 5 has rightly assessed the loss of earning capacity to the extent of 40% and that being a finding of fact is not liable to be disturbed by this Court in an appeal filed under Section 30(1) of the Employees' Compensation Act, 1923.
8. I have given my anxious consideration to the submissions made on either side and also perused the appeal papers.
9. In this case, the only question that has been canvassed before me is that even though the claimant, who is a driver, had lost one phalanx of right index finger, the loss suffered in the earning capacity as assessed by the learned Commissioner to the extent of 40% is on the higher side and same should be assessed at 9%. The evidence clearly demonstrates that the claimant was working as driver in Tempo Trax in question owned by respondent No.1-Basavaraj Venkappa and on account of the accident, one phalanx of his right index finger has been amputated. Since this loss of one phalanx of right index finger is in the right hand, there cannot be any dispute that his ability to drive a commercial vehicle has 6 been significantly affected and prospects of his being employed as driver in commercial vehicle has been taken away significantly. However, loss of earning capacity assessed by the learned Commissioner at 40% may be slightly on the higher side and I am of the view that it required to be re-fixed at 35%. The main reason is that the prospects of the claimant who has lost one phalanx of right index finger getting a job of driver is reduced considerably as prospective employer will naturally be apprehensive as to whether it is safe to entrust a person like the claimant with driving responsibility because of loss of one phalanx of his right index finger. Accordingly, taking his loss of earning capacity at 35%, the compensation is required to be recalculated as follows:
Rs.4,500 x 60/100 x 211.79 x 35/100= Rs.2,00,141.55 (Rounded off to Rs.2,00,142/-) as against Rs.2,28,733/- awarded by the learned
Commissioner with interest thereon at 12% per annum w.e.f. thirty days from the date of accident till the date of deposit.
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10. Accordingly, I proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The claimant is entitled to receive a total compensation of Rs.2,00,142/- as against Rs.2,28,733/- with interest thereon at 12% per annum w.e.f. thirty days from the date of the accident till the date of deposit.
c) The amount in deposit, if any, before this Court shall be transmitted to the jurisdictional Court of learned Senior Civil Judge forthwith.
d) Excess amount, if any, shall be refunded to the appellant-insurer forthwith.
Sd/-
JUDGE JTR