Shivakumar S/O Amarayya Hiremath vs Shreya Joshi W/O Swaroop Joshi And ...
2022 Latest Caselaw 5983 Kant

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           IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

        DATED THIS THE 4TH DAY OF APRIL, 2022
                           BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

               MFA No.201321/2021 (ECA)

Between:

Shivakumar S/o Amarayya Hiremath,
Age: 32 years, Occ: Driver of the car
No.KA-36/M-9211,
R/o Near Shadi Mahal, Mudgal,
Tq: Lingasugur, Dist. Raichur.
                                                 ... Appellant
(By Sri. Gopalkrishna B Yadav, Advocate)

And:

1.     Mrs. Shreya Joshi W/o Swaroop Joshi,
       Age: 45 years, Occ: Owner of the Car
       No.KA-36/M-9211,
       R/o. Begumpur, Mudgal,
       Tq: Lingasugur,
       Dist: Raichur-585 401.

2.     The Divisional Office
       United India Insurance Co. Ltd.,
       Anaga Complex, No.12/10/89/1,
       1st Floor, Lingasugur Road, Raichur.
       Chandramouleshwar Temple,
       Raichur-585 601.
                                              ... Respondents

     (By Sri. Varun Patil, Adv. For
      Sri. Shivanand Patil, Adv. For R2
     Notice to R-1 dispensed with)
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      This Miscellaneous First Appeal is filed under Section
30(1) of E.C. Act praying to allow this appeal by modifying
the judgment and award of the II Addl. Senior Civil Judge
and Commissioner for workmen's Compensation, at
Raichur, dated 30.01.2020 in ECA No.01/2017.

      This appeal coming on for Admission, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal under Section 30(1) of the

Employees Compensation Act, (hereinafter referred to

as 'the Act', for short) has been filed by the petitioner

being aggrieved by the judgment and award dated

03.01.2020 passed in ECA.No.1/2017 by the II Addl.

Senior Civil Judge and JMFC and Commissioner for

Workmen's Compensation, Raichur (hereinafter

referred to as 'the CWC', for short).

2. For the sake of convenience, parties are

referred to as per their ranking before the CWC.

Appellants are the petitioner and respondents are

respondents before the CWC.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 18.08.2016, the petitioner

was proceeding near Yellamme temple at Gumgera

village, at that time, a cattle came across the road, he

was trying to avoid the accident and in that process

the said car turtle and sustained grievous injuries.

Thereafter, the petitioner was immediately shifted to

Government Hospital, Kustagi and as per the

directions of doctors of said hospital, he was shifted to

Kathare Nursing Home, Ilkal. The petitioner has spent

huge amount for medical treatment. It is contended

that the petitioner is an employee of respondent No.1

and the accident was occurred during the course of

employment. Hence, the petitioner filed the claim

petition under Section 10 and 22 of the Workmen's

Compensation Act, 1923 seeking for compensation on

the account of injuries sustained in the road traffic

accident.

4. The respondent No.1 was remained absent

and placed ex-parte. Respondent No.2 filed written

statement admitting the alleged date of accident and

involvement of car. It is contended that the petitioner

was on duty at the time of accident. Hence, sought for

dismissal of the petition.

5. In order to prove the case, petitioner

examined as PW-1 and also examined one witness as

PW.2 and got exhibited documents namely Ex.P1 to

Ex.P19. The official of respondent No.2 examined as

RW.1 and got marked as Ex.R1. After recording the

evidence and considering the material on record, the

CWC has recorded a finding that petitioner has proved

that the petitioner met with an accident and

petitioner is entitled for compensation and

consequently allowed the claim petition in part and

awarded a compensation of Rs.1,26,741/- with

interest @ 6% p.a. and held that respondent Nos.1

and 2 are jointly and severally liable to pay

compensation with interest @ 6% from the date of

petition till realization and directed the respondent

No.2 to deposit the compensation. Being dissatisfied

with the compensation awarded by the CWC, the

petitioner has filed the present appeal seeking for

enhancement of compensation amount.

6. Heard the learned counsel for petitioner

and learned counsel for respondent No.2.

7. Learned counsel for the petitioner submits

that petitioner has taken a specific contention that the

petitioner was working as a driver and earning

Rs.9,000/- per month. In order to substantiate the

same, the petitioner has not tendered any evidence

with regard to income proof. In the absence of income

proof, the CWC ought to have taken the income of

Rs.8,000/- per month as per Section 4(1)(a) of the

Employees Compensation Act. The CWC has taken

monthly income at Rs.4,500/- which is on the lower

side. He further submits that 50% of the salary is to

be deducted. Hence, he submits that the petitioner

has suffered permanent disability and CWC has taken

10% disability which is on the lower side. Hence,

prays to allow the appeal.

8. Per contra, learned counsel for respondent

No.2-Insurance Company supports the impugned the

judgment and award passed by the CWC and does not

call for any interference . Hence, on these grounds, he

prays for dismissal of the appeal.

9. Heard the learned counsel for the parties

and perused the records.

10. The point that arise for consideration is

with regard to quantum of compensation.

11. It is not in dispute that petitioner was

working as a driver under respondent No.1 and further

the petitioner met with an accident during the course

of employment. In order to prove that the accident

was occurred, petitioner has produced copy of FIR and

complaint marked as Exs.P9 & 10 respectively. Ex.P9

discloses that the accident was occurred due to rash

and negligent driving of the driver of the offending

vehicle Ford bearing registration No.KA-36/M-9211

and further the petitioner in order to prove that the

petitioner was earning Rs.9,000/- per month, he has

not produced any records in support of the contention.

12. As per Section 4(1)(b) of the Employees

Compensation Act, an amount equal to sixty per cent

of the monthly wages of the injured (employee)

multiplied by the relevant factor; or an amount of

eighty thousand rupees whichever is more. Section

4(1)(a) was amended by Act No.45 of 2009. The said

amendment came into effect from 18.01.2010.

13. In the present case, the accident was

occurred on 18.08.2016, the CWC ought to have

taken monthly wages of Rs.8,000/- on the contrary

has taken Rs.4,500/- which is on the lower side.

Considering section 4(1)(a) of the Employees

Compensation Act, this Court has taken the monthly

wages of the petitioner at Rs.8,000/-. The petitioner

was aged 28 years as on the date of the accident,

relevant factor applies to the age group of petitioner is

211.19. In order to prove the disability the petitioner

examined the doctor as PW.2, who has deposed that

he has issued disability certificate at Ex.P7 on

examination of petitioner and he has stated that

petitioner has suffered permanent disability of 25-

26% to whole body and 40-42% particular affected

part. The CWC without considering the evidence of

PW.2 has taken the disability at 10% which is on the

lower side. This Court enhance the disability to 20%.

Thus, if 60% of the salary is deducted out of

Rs.8,000/- which comes to Rs.4,800/- and hence

Rs.4,800 x 211.79 x 20% = 203,318.4/-. Hence, the

petitioner is entitled for compensation towards

disability of Rs.203,318.4/- as against Rs.95,305.50

awarded by the tribunal.

14. In addition, the petitioner is entitled for

compensation of Rs.31,436/- towards medical

expenses.

15. Thus, the petitioner is entitled to a total

compensation of Rs.2,34,754/- as against

Rs.1,26,741/- awarded by the CWC. In view of the

above discussions above, the question of law is

answered in favour of the petitioner.

16. The petitioner are entitled for enhanced

compensation of Rs.1,08,013/- along with interest at

the rate of 6% p.a.

17. In view of the discussions above, I proceed

to pass the following;

ORDER

(a) The appeal is allowed in part.

(b) The Judgment and award dated 30.01.2020 passed in ECA No.1/2017 by the CWC is modified.

(c) The petitioner is entitled to a total compensation of Rs.2,34,754/- as against Rs.1,26,741/- awarded by the CWC.

(d) The petitioner is entitled for enhanced compensation of Rs.1,08,013/- along with interest at the rate of 12% p.a. from the date of accident till the date of realization of amount.

(e) Respondent No.2, Insurance Company is directed to deposit the enhanced compensation amount along with interest, within a period of eight weeks from the date of receipt of copy of this order.

Sd/-

JUDGE

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