Karnataka High Court

Sri Narasimhan @ Narasimhaiah vs M/S Universal Transport Service on 8 February, 2022

Bench: P.Krishna Bhat

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 08TH DAY OF FEBRUARY, 2022

                         BEFORE

         THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

               MFA NO. 10765/2011 (WC)

BETWEEN:

SRI NARASIMHAN @ NARASIMHAIAH
S/O.RAJU NAIDU
AGED ABOUT 48 YEARS
R/AT.NO.264, 6TH CROSS,
BSK I STAGE, BANGALORE 50
                                            ... APPELLANT

(BY SRI. N.GOPAL KRISHNA, ADVOCATE)


AND:

1.     M/S UNIVERSAL TRANSPORT SERVICE
       NO.2/80, KAGRAHARAM KOTHAVASA,
       PHONATHOTTAM POST
       NANILAM TALUK
       TIRUVARUR DISTRICT-600041
       TAMILNADU.

2.     THE NEW INDIA ASSURANCE CO LTD
       REGIONAL OFFICE
       SPENCER TOWER,
       3RD FLOOR, 770/A, ANNA SALAI
       CHENNAI 600002
       REP BY ITS MANAGER
                                         ... RESPONDENTS

(BY SRI C.R. RAVISHANKAR, ADVOCATE FOR R2;
    R1-SERVED AND UNREPRESENTED)
                                 2




     THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE    JUDGMENT     DATED   26.7.2011    PASSED   IN
WCA/B2/NFC/CR.4/2008 ON THE FILE OF THE LABOUR
OFFICER    AND     COMMISSIONER     FOR     WORKMEN
COMPENSATION, SUB DIVISION-2, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS MFA COMING ON FOR HEARING THIS DAY,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is at the instance of claimant calling in

question the legality and validity of the judgment and award

dated 26.07.2011 passed by the Commissioner, Workmen's

Compensation & Labour Officer, Sub. Div-II, Bangalore, in

WCA/B2/NFC/CR 4/2008.

2. The brief facts as made out in the claim petition is

that on 13.06.2007 at 10.00 p.m. while the claimant was

working as a driver in lorry bearing registration No.TN 50 /D

8429 owned by respondent No.1-M/s.Universal Transport

Services and insured with respondent No.2, the accident

resulted in causing serious injuries to the claimant.

3. Before the learned Commissioner, Workmen's

Compensation, respondent No.1-employer has not contested

the proceedings and he has remained exparte. Respondent

No.2 - insurance company contested the proceedings by filing

detailed written statement.

4. During the enquiry, claimant examined himself as

PW1 and examined a qualified medical practitioner as PW2.

Exs.P-1 to P-10 were marked. Respondents did not examine

any witness, but policy of insurance was marked as Ex.R-1.

5. After hearing the learned counsel on both sides

and on perusing the records, learned Tribunal allowed the

claim petition in part by awarding a compensation of

Rs.2,05,459/- with interest.

6. Learned counsel for the appellant submitted that

learned Commissioner has taken the whole body disability and

functional disability of the claimant at 60% even though

claimant has suffered amputation of his right forearm at the

wrist joint and therefore, he is rendered unfit to work as a

driver of the lorry as before. He also submitted that learned

Commissioner has erred in awarding interest at a rate lesser

than 12% and therefore, same is required to be enhanced.

7. Learned counsel for the insurance company per

contra contended that he had filed an appeal calling in

question the impugned award in MFA No.8132/2012 and it

has already been dismissed. He submitted that as per the

schedule, for the amputation of right forearm on wrist joint,

the functional disability is 60% and therefore, it cannot be

taken at a higher percentage as per law. He therefore

submitted that there is no merit in the appeal and it is

required to be dismissed.

8. I have given my anxious consideration to the rival

contentions made on both sides and perused the records.

9. In view of medical records produced namely,

Exs.P-1 and P-2, which are issued by GIPMER Hospital,

Pondicherry, apart from several other injuries and

disfiguration, claimant's right forearm at the level of wrist

joint has been amputated and now he cannot use right hand

for any functional purposes. Admittedly, he was driver of a

truck at the time of accident. He cannot therefore any longer

work as a driver, which was his primary source of livelihood.

10. Learned counsel for the appellant has drawn my

attention to the decision of Hon'ble Supreme Court in

S.SURESH vs. ORIENTAL INSURANCE CO. LTD. AND

ANOTHER reported in AIR 2010 SCW 437 and contended

that in a case of this nature, the functional disability has to be

taken at 100% and based on that compensation has to be

awarded. Para 8 of the said judgment (supra) reads as

follows:

"8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act."

11. Apart from same, it is relevant to refer to the

observation of the Hon'ble Supreme Court in JAGADISH v.

MOHAN AND OTHERS reported in (2018) 4 SCC 571

wherein following observation has been made:

"14. In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of

imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing - at least in the facts of this case - can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity."

12. In that view of the matter, compensation in this

case is required to be assessed on the footing that claimant

has suffered 100% functional disability. Learned

Commissioner has taken the monthly income of claimant at

Rs.4,000/-. For his age, the relevant factor is 142.68.

Accordingly, compensation is recomputed as follows:

Rs.4,000/- x 60% (Rs.2,400/-) x 142.68 = Rs.3,42,432/-.

13. Thus, claimant is entitled to total compensation of

Rs.3,42,432/-. Learned Tribunal has already awarded a sum

of Rs.2,05,459/-. Hence, claimant is entitled to enhanced

compensation of Rs.1,36,973/-. On the enhanced

compensation, claimant is entitled to interest @ 12% p.a. with