Karnataka High Court
Smt Nagarathnamma vs Prashanth K on 18 February, 2022
Bench: S.Sujatha, Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.No.1887/2019 (ECA)
BETWEEN:
SMT. NAGARATHNAMMA
W/O SOMASHEKHARA
AGED ABOUT 38 YEARS
R/O INDIRA NAGAR
GAJANURU POST - 577 201
SHIVAMOGGA TQ. & DIST.
...APPELLANT
[BY SRI. S.B.HALLI, ADVOCATE (PH)]
AND:
1. PRASHANTH K.,
AGED ABOUT 50 YEARS
R/O INFRONT OF GDC HOSTEL
SIDHA CONSTRUCTIONS
NEAR VIKASH SCHOOL
VINOBHANAGARA MAIN ROAD
SHIVAMOGGA CITY-577 201.
2. RAVEENDRA B.K.,
S/O BASAVARAJAPPA
AGED ABOUT 40 YEARS
JAYADEVA EXTENSION
NEAR KATTE SUBBANNA
KALYANA MANDIRA
SHIVAMOGGA CITY-577 201.
2
3. THE NATIONAL INSURANCE COMPANY LTD.,
1ST FLOOR, S.S. COMPLEX
B.H.ROAD, SHIVAMOGGA-577 201.
...RESPONDENTS
(BY SRI. SATISH CHANDRA K.V., ADVOCATE FOR R1;
SMT. MANJULA N. TEJASWI, ADVOCATE FOR R3;
NOTICE TO R2 IS DISPENSED WITH V/O DATED 29.10.2021)
THIS M.F.A. IS FILED UNDER SECTION U/S 30(1) OF
EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND
AWARD DATED 12.12.2018 PASSED ON ECA NO.93/2014 ON
THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND
CJM & AMACT-7, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 12.12.2018
passed by I Additional Senior Civil Judge and CJM and
Employees' Compensation Commissioner at Shivamogga, (for
short 'trial court') in E.C.Case No.93/2014, this appeal is filed.
2. Brief facts as stated are that respondent no.1
('employer' for short) was owner of M/s. Siddha Constructions,
involved in construction of buildings. Appellant ('workman' for
short) was employed as coolie on payment of Rs.400/- per day.
On 15.09.2012, when employer had directed workman to attend
building work, at about 4.00 p.m. while she was giving cement
mixture by standing on scaffolding, she lost balance and fell
down due to jerk in scaffolding. She sustained grievous injuries
to her waist and other parts of body and was shifted to Mc.Gann
Hospital, Shivamogga where she took inpatient treatment upto
17.09.2012 and thereafter at Nanjappa Hospital from
17.09.2012 to 26.09.2012. As she did not recover, she took
further treatment at Sanjay Gandhi Trauma and Bone Treatment
Centre from 18.10.2012 to 02.11.2012. Despite treatment, she
did not recover fully and sustained permanent partial physical
disability. Due to same, her earning capacity was reduced.
Claiming compensation for same, she filed application under
Section 3, 4 and 10 of Employees Compensation Act, ('Act' for
short) against employer and insurer.
3. On service of notice, only employer and insurer entered
appearance and filed objections. In his objections, except
admitting fall of workman from top of scaffolding at construction
site of respondent no.2, all other averments were denied. Claim
was also opposed as excessive. He, however, admitted that he
was owner of M/s. Siddha Constructions and obtained employees
compensation insurance policy from insurer. He pleaded
indemnification from insurer. Insurer while denying claim petition
averments specifically denied existence of relationship of
employer and employee between workman and employer. It was
contended that employer had failed to inform about the incident.
It was submitted that terms and conditions of policy were not
complied.
4. Based on pleadings, following issues were framed:
1. Whether the petitioner proves that he comes
within the meaning of "workman" as defined
under Section 2(1)(n) of the Workmen
Compensation Act, 1923?
2. Whether the petitioner proves that she was a
workman under the respondents no.1 and 2 as
on the date of incident?
3. Whether the petitioner proves that she
sustained the injuries while she was working
on the date of incident as per the direction of
the respondents?
4. Whether the petitioner proves the total salary
she was being paid by the respondents and her
age as on the date of accident?
5. To what extent the earning capacity of the
petitioner is lowered due to the incident in
question?
6. Whether the petitioner is entitled for
compensation? If so, from whom and to what
extent?
7. What order or award?
5. Thereafter workman examined herself as PW-1 and
Dr. Shekhar M., as PW-2. Exhibits P.1 to P.94 were marked.
Insurer examined its official as RW-1 and Exs.R.1 to R.3 were
marked.
6. On consideration, trial court answered issue nos. 1 to 4
in affirmative and held that workman was aged about 33 years
and her income was Rs.225/- per day; issue no.5 answered in
negative; issue no.6 answered partly in affirmative by holding
that claimant was entitled to compensation of Rs.24,000/- with
interest at 6% per annum. Trial court answered issue no.7 partly
in affirmative as above and respondent no.3 was directed to
deposit compensation. Not satisfied with quantum of
compensation, workman is in appeal.
7. Sri. S.B. Halli, learned counsel for appellant submitted
that trial court after considering evidence led before it came to a
conclusion that relationship between employer and employee
was established. It also determined age of workman at 33 years.
Though, it was contended that workman was being paid Rs.400/-
per day, it determined it at Rs.225/-. It was further submitted
that PW-2 examined by workman had assessed permanent
partial physical disability of 35% to limb. But, merely on ground
that disability certificate was not produced, trial Court held that
claimant did not suffer from loss of earning capacity and denied
compensation. It was also submitted that trial court erred in not
awarding interest at 12% per annum from 30 days after date of
incident as held by Hon'ble Supreme Court in decision of
Oriental Insurance Co., Ltd., Vs. Siby George reported in
2012 ACJ 2126.
8. In the light of above submissions, learned counsel
proposed following substantial questions of law for consideration:
1. Whether the trial court has justifying in
awarding only Rs.24,000/- compensation,
without considering nature of injuries sustained
by the appellant in the accident?
2. Whether the trial court has justifying in not
considering the loss of earning capacity, the
evidence on records clearly goes to show that,
the physical disability of 35% as assessed by
the Doctor on the ground that, not producing
disability certificate?
3. Whether the trial court has justifying in
considering income of the appellant is Rs.225/-
per day, though evidence on records clearly
goes shows that the appellant has received
sum of Rs.400/-per day from the 1st
respondent?
4. Whether the trial court has justifying in not
taken into consideration of the Central
Government Notification in respect of
calculating the amount of monthly wages?
5. Whether the trial court has justifying in
awarding the interest only 6% on the
compensation amount?
9. On the other hand, Smt. Manjula S. Tejaswi, learned
counsel for respondent - insurer supported award and opposed
enhancement. It was submitted that though workman contended
that she was earning Rs.400/- per day, same was not
substantiated by any evidence. Though employer admitted
employing her on payment of Rs.225/- per day, even employer
did not produce any records such as Muster Roll, payment
vouchers etc. It was also contended that PW.2 did not assess
loss of earning capacity sustained by workman with regard to her
avocation. Therefore, trial court was justified in denying
compensation towards the same. It was submitted that award
was passed on findings of fact and no substantial questions of
law arose for consideration in appeal and sought for its dismissal.
10. From above submission, it is not in dispute that while
working at construction site, as per instructions of her employer,
on 15.09.2012, workman fell down from scaffolding, sustained
grievous injuries. Despite treatment, she did not recover fully
and sustained permanent partial physical disability. Trial court
determined her income at Rs.225/- per day and age as 33 years.
Insurer has not challenged award. Only claimant is in appeal for
enhancement. As issuance of policy is not disputed and as
insurer has not preferred appeal, its liability is also admitted.
Since, it is contended that trial court erred in ignoring evidence
of PW.2 with regard to assessment of physical disability and loss
of earning capacity, trial court award suffers from perversity. As
trial court also failed to take note of amendment to Act by
insertion of sub-section 1B to Section 4 and notifying Rs.8,000/-
as monthly income and further it is contended that award of
interest was contrary to provisions of Section 4A(3)(a) and
decision of Hon'ble Supreme Court in Oriental Insurance Co.,
Ltd., Vs. Siby George reported in (2012) 12 SCC 540,
following substantial questions of law arise for consideration in
this appeal:
1. Whether trial court was justified in
ignoring evidence of PW-2 for denying
compensation towards loss of earning
capacity?
2. Whether trial court erred in not taking
note of amendment to Section 4, by
introduction of sub-section 1B and
notifying Rs.8,000/- as monthly income
for assessment of compensation under
Section 4(1B) vide notification dated
31.05.2010?
3. Whether award of interest at 6% per
annum is perverse and calls for
interference?
Re. Substantial questions of law no.1 & 2:
11. Since substantial questions of law no.1 and 2 are
contiguous, they are taken up together. In the instant case, trial
court has denied compensation to workman towards 'loss of
earning capacity'. Reason assigned is that workman failed to
produce disability certificate to establish 'loss of earning
capacity'. The prescription under the Act, with regard to
permanent partial disability as per Section 4(1)(c) (ii) are that, in
case of non-scheduled injury is to establish permanent disability
as is proportionate to loss of earning capacity assessed by
qualified medical practitioner. It is not in dispute that workman
sustained grievous injury to her backbone due to fall from
height. In order to establish accident and disability, she produced
wound certificate, discharge summary, prescription slip,
discharge summary, out patient registration form, intimation
from hospital to police station, bills issued by Nanjappa hospital
and Sanjay Gandhi hospital, prescription slips, case-sheet, x-ray
film and out patient records were marked as Exhibits P1 to P.5,
P.10 to P.84 and P.92 to P.94 respectively. Ex.P.10 - intimation
from hospital to police station and Ex.P.1 - wound certificate
followed by treatment records established that workman
sustained injuries in the course and arising out of employment
on 15.09.2012 and for which she took treatment in various
hospitals. In order to establish disability, Dr. Shekar M., was
examined as PW.2, who is a qualified medical practitioner. In his
evidence, PW.2 stated as follows:
"1. I submit that patient had following injury:
Compression fracture L1 vertebra with loss of
more than 50% of height.
2. I submit that patient underwent surgery on
22.10.2012 in the form of bone grafting from
left posterior iliac crest on to L1 vertebra. After
that surgery she was put on antibiotics,
analgesics and ambulation with K T brace. She
got discharged on 3.11.12.
3. I submit that on 19.2.18, the patient came for
the disability assessment and following points
noted:
a. Healed surgical scar over midline of
dorsolumbar spine.
b. Healed surgical scar over posterior
iliac crest.
c. Tenderness and kyphotic deformity
with gibbus over L1 vertebra.
d. She has difficulty in walking due to
weakness in left lower limb and
severe pain in the low back.
e. She uses anterior spinal
hyperextension brace to support her
dorsolumbar vertebral column.
f. She has weakness in her left great toe
with EHL power grade 4 and
quadriceps muscle power grade 3+.
g. X-ray dorsolumbar spine AP and
Lateral views taken on 19.2.18 shows
complete collapse of L1 vertebra with
kyphotic deformity.
According to the guidelines given by
office of the Chief Commissioner for persons
with disabilities, the patient has got permanent
physical disability for spine of 35%. ...."
12. During the course of cross-examination of PW.2, it is
elicited that workman came to him for treatment one month
after accident. He also admits that he did not stipulate in Ex.P.92
and P.94 that workman was suffering from neurological
deficiencies. It is also elicited that whole body disability would be
less than '1/3' of disability of injured part. PW.2 also admits that
workman has received some compensation from Chief Minister's
Relief Fund. From the above, it cannot be held that workman
did not suffer from permanent physical disability. PW.2 has
opined that disability is partial and permanent. He assessed it at
35%. As workman examined qualified medical practitioner, in
compliance of requirement of the Act, she established permanent
partial physical disability sustained by her. Though, PW.2
admitted that disability in comparison to whole body would be
'1/3', considering fact that workman was employed as coolie in
construction work, where she is required to carry heavy load,
injury to backbone would affect her earning capacity to higher
degree. In our considered opinion, it would be just and proper to
assess 'loss of earning capacity' at 20%.
13. Insofar as monthly income of workman, she deposed
that she was earning Rs.400/- per day. Respondent no.1 -
employer, however, stated that he was paying Rs.225/- per day.
But, employer has not entered witness box and workman denied
suggestion that she was being paid Rs.225/- per day. As per
Notification dated 31.05.2010 issued by Central Government
under Section 4(1-B) of the Act, monthly wages notified for
purposes of Section 4(1-B) is Rs.8,000/-. This view is in
consonance with the view taken by Division Bench of this Court
[to which one of us (Hon'ble SSJ) was a member] in M.F.A. No.
8577/2017 and connected matters disposed of on 16.07.2021.
14. As per Section 4 of the Act, 60% of monthly wage has
to be multiplied by relevant factor i.e. 201.66 and extent of loss
of earning capacity. Hence compensation is assessed as under:
Rs.8,000 x 60% x 20 % x 201.66 = Rs.1,93,593/-
15. In addition, workman would be entitled to Rs.24,000/-
towards medical expenses. Thus, total compensation would be
Rs.2,17,593/-.
16. Thus, substantial question of law no.1 is answered
in negative and substantial question of law no.2 is answered
partly in affirmative.
Re: Substantial Question of Law No.3:
17. In the impugned award, trial court granted interest at
6% per annum from date of petition till realization. Sub-section
3(a) of Section 4A of the Act reads as follows:
(3) Where any employer is in default in paying the
compensation due under this Act within one month from
the date it fell due, the Commissioner shall--
(a) direct that the employer shall, in addition to the
amount of the arrears, pay simple interest thereon at the
rate of twelve per cent per annum or at such higher rate
not exceeding the maximum of the lending rates of any
scheduled bank as may be specified by the Central
Government, by notification in the Official Gazette, on the
amount due;
18. Said provision has been interpreted by the Hon'ble
Supreme Court in Siby George (supra) to hold that employer
would be liable to pay interest at 12% per annum from one
month after date of accident, if compensation is not deposited
within that time. Above provision and decision of Apex Court do
not leave any room for a different opinion. Hence, substantial
question of law No.3 is answered in negative, it is held that
workman would be entitled to simple interest at 12% per annum
from one month after date of accident i.e., from 14.10.2012 till
realisation.
In view of above findings, we pass the following:
ORDER
Appeal is allowed in part.
Compensation awarded by the trial court
is enhanced to Rs.2,17,593/- as against
Rs.24,000/- with interest at 12% per annum
after 30 days from the date of accident till its
realisation.
Substantial questions of law are
answered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
Bvk/psg*
