Manju vs M.R. Shivakumar
2022 Latest Caselaw 2747 Kant

     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.7174/2016 (WC)

BETWEEN :

MANJU
S/O LATE KRISHNEGOWDA
AGED ABOUT 22 YEARS
R/AT SALIGRAMA
DOUBLE TANK ROAD
SALIGRAMA, K.R.NAGAR TALUK
MYSORE DISTRICT                                ...APPELLANT

              (BY SRI SYED ABDUL SABOOR, ADV.)

AND :

1.      M.R.SHIVAKUMAR
        S/O RAJAPPA
        AGED ABOUT 50 YEARS
        R/AT 183/D NITHIN NILAYA
        BOMMANAYAKANAHALLI VILLAGE
        HOLENARASIPURA ROAD
        CHENNAPATNA TOWN
        HASSAN TALUK & DISTRICT-573201

2.      RELIANCE GENERAL INSURANCE CO. LTD.,
        B.N.ROAD, MYSORE-570001
        POLICY OF INSURER OF LORRY
        BEARING REG NO.KA-13A 3772
        VALID FROM 24.2.12 TO 23.2.13
                           -2-

3.      SHIVARAMU @ JAYANNA
        S/O SIDDEGOWDA
        AGED ABOUT 40 YEARS
        R/AT 3RD CROSS, HALVAGILU ROAD
        CHIKKAMANDIGANAHALLI VILLAGE
        HASSAN TOWN & DISTRICT
        GPA HOLDER OF THE
        FIRST RESPONDENT                   ...RESPONDENTS

       (BY SRI ASHOK N. PATIL, ADV. FOR R-2; R-1 SERVED;
     VIDE COURT ORDER DATED 04.02.2020 NOTICE TO R-3 IS
                      DISPENSED WITH.)

      THIS M.F.A. IS FILED UNDER SECTION 30(1) OF
WORKMEN'S COMPENSATION ACT, AGAINST THE JUDGMENT
AND AWARD DATED 15.04.2016 PASSED ON ECA NO.8/2014
ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC,
K.R.NAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING ENHANCEMENT     OF
COMPENSATION.

      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is filed by the appellant under Section

30 of the Employee's Compensation Act, 1923 ('Act' for

short) challenging the judgment and award dated

15.4.2016 passed in ECA No.8/2014 on the file of the

Senior Civil Judge and JMFC, K.R.Nagar ('Tribunal' for

short) raising the following substantial questions of law;

"(1) Whether income taken by tribunal at Rs.8,000/- is justifiable as against the income claim by the appellant is Rs.12,000?

(2) Whether functional disability of the appellant taken by the tribunal at 10.67% is justifiable when the doctor has assessed the functional disability to the extent of 32%?"

2. Succinctly stated the facts of the case are

that the appellant claiming to be a cleaner and loader of

the lorry bearing No.KA-13-A-3772 filed claim petition

under Section 10 read with Section 22 of the Act

contending that while he was working as cleaner and

loader of the said lorry which was proceeding from

Keralapura to Saligrama on 19.3.2012 at about 4.15

pm., the driver of the said lorry has driven the same in a

rash and negligent manner and dashed to a road side

tree and thereby caused the accident. As such, he

sustained grievous injuries on left heel and knee and

immediately he was shifted to Saligrama General

Hospital, wherein he took treatment as an inpatient and

underwent surgery to his left knee having suffered the

fracture of tibia and fibula and thereby spent more than

Rs.3,00,000/- for the medical expenses. It was further

contended that he was drawing a salary of Rs.12,000/-

p.m., from the respondent No.1. Due to the accident,

he could not do his work being disabled. On these

grounds sought for compensation under the provisions

of the Act.

3. The Tribunal, after issuing notice to the

respondents and considering the objections filed by

them, proceeded to allow the claim petition awarding

total compensation of Rs.1,45,241/- along with interest

at the rate of 12% p.a., after one month from the date of

the accident till its complete realization. Being

aggrieved by the aforesaid order, the appellant has

preferred this appeal seeking for enhancement of

compensation.

4. Learned counsel appearing for the appellant

submitted that the income determined by the Tribunal

at Rs.8,000/- p.m., is wholly unjustifiable as against

the income of Rs.12,000/- p.m., proved. Learned

counsel further submitted that PW.2 - Dr Ravi H.S, has

assessed the disability to an extent of 32%, however, the

Tribunal has taken it at 10.67%, which is wholly

untenable. Accordingly, seeks for enhancement of

compensation.

5. Learned counsel appearing for the

respondent No.2 - insurer justifying the impugned

judgment submitted that the monthly income of

Rs.8,000/- determined by the Tribunal is in accordance

with law and the disability assessed by PW.2 - Doctor

was only functional disability, not the loss of earning

capacity and as such, the Tribunal determining

disability to the extent of 1/3rd of 32% to the whole body

is justifiable.

6. We have considered the rival submissions of

the learned counsel appearing for the parties and

perused the material on record.

7. The first substantial question of law raised

by the appellant is no more res intergra in view of the

decision of this Court in the case of Mangalore

Electricity Supply Company Limited v. Smt

Bellamma, in MFA No.8577/2017 and connected

matters, disposed of 16.7.2021, wherein it has been

held that by virtue of Section 4(1)(b) inserted by Act

45/2009 w.e.f., 18.1.2010 and the notification issued in

the Official Gazette by the Central Government dated

31.5.2010, the monthly wages under the said provision

would be Rs.8,000/-. Hence, the first substantial

question of law is answered in the negative against the

appellant.

8. Regarding the second substantial question of

law, we find some force in the argument advanced by

the learned counsel appearing for the appellant. No

doubt, the qualified Medical Practitioner has not

assessed the loss of earning capacity, the material

evidence on record would disclose that the appellant

has sustained 32% of disability to the left lower limb.

The evidence of PW.2 in this regard has remained

unrebutted.

9. Having regard to the medical records

available on record and the evidence of PW.2, we deem

it appropriate to redetermine the loss of earning

capacity of the appellant at 20%. Applying the same,

the compensation works out to Rs.4,800/-

x221.37x20/100, that would be equal to Rs.2,12,515/-.

Making the addition of Rs.31,971/- towards the medical

expenses, the total compensation awarded by the

Tribunal is modified and enhanced to Rs.2,44,486/- as

against Rs.1,45,241/- with interest at the rate of 12%

p.a., after one month from the date of the accident till

its realization. In all other respects, inasmuch as the

liability and disbursement of the compensation amount

shall be in terms of the judgment of the Tribunal.

Accordingly, the second substantial question of law is

answered in favour of the appellant.

In the result, the appeal is allowed in part.

Draw the modified award accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

nd