Managing Director vs Mr. Mallikarjuna
2022 Latest Caselaw 8536 Kant

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

              M.F.A.NO.8604/2016 (WC)

BETWEEN:

1.     MANAGING DIRECTOR,
       KSRTC, CENTRAL OFFICES,
       K.H.ROAD, SHANTHINAGARA,
       BENGALURU-560027.

2.     DIVISIONAL CONTROLLER,
       KSRTC, BANGALORE CENTRAL,
       DIVISION, K.H. ROAD, BENGALURU-560027.

NOW REPRESENTED BY ITS
CHIEF LAW OFFICER,
KARNATAKA ROAD TRANSPORT CORPORATION,
CENTRAL OFFICES, SHANTHINAGAR,
BENGALURU-560027.
                                  ... APPELLANTS
(BY SMT. SHWETHA ANAND, ADVOCATE
APPEARING THROUGH V/C)

AND:

MR.MALLIKARJUNA,
S/O SHANKARAPPA,
AGED ABOUT 32 YEARS,
NO.320 BEHIND VINAYAKA TRADERS,
OPPOSITE TO CLT INDIA BUILDING,
JAKKUR, YELAHANKA HOBLI,
BENGALURU-560064.
                                      ... RESPONDENT
(BY SMT. S.B.LAKSHMI, ADVOCATE)
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     THIS M.F.A IS FILED UNDER SECTION 30(1) OF MV
ACT    AGAINST    THE    JUDGMENT     AND    AWARD
DATED:10.02.2018 PASSED ON ECA NO.172/2014 ON THE
FILE OF THE 21ST ADDITIONAL SMALL CAUSES JUDGE &
THE MACT, BENGALURU, AWARDING COMPENSATION OF
RS.55,300/- WITH INTEREST AT 12% P.A. FROM THE
DATE OF INCIDENT TILL ITS REALISATION AND ETC.,


     THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The above appeal is preferred under Section-30(i) of

the Workmen's Compensation Act (hereinafter referred to

as 'WC Act' for brevity), by the appellant-KSRTC

challenging the judgment and award dated 10.02.2016,

passed in ECA No.172/2014, on the file of Court of XXIth

Additional Small Causes Judge and the Motor Accidents

Claims Tribunal (SCCH-23) at Bengaluru, (hereinafter

referred to as 'the Tribunal' for brevity).

Brief facts:

2. That on 11.01.2008 at about 5.10 a.m., the

clamant was driving a vehicle bearing registration No.KA-

01-F-8028, from Bengaluru to Hosapet enroute of

Koodlige. At that time, another North-East KSRTC vehicle

bearing registration No.KA-26-F-627 plying from Koodala

Sangama to Bengaluru, which came from the opposite

direction met with an accident. Both vehicles were

damaged. The claimant sustained injuries on his right leg

and body. Immediately, he was shifted to Koodlige

Hospital for first aid treatment and then shifted to Mallige

Medical Center, at Bangalore where he was inpatient from

13.01.2008 at 21.01.2008.

3. Hence, a claim petition was filed by the

claimant under Section-22 of the W.C. Act, seeking

compensation for the injuries sustained in the accident

during the course of his employment. The Tribunal on

appreciating the materials on record, allowed the petition

in part, and awarded a compensation of Rs.55,300/- along

with interest at 12% per annum from the date of petition

till the date of realisation. The Tribunal held respondents -

appellants herein, liable to pay the compensation.

4. The Tribunal has awarded a compensation of

Rs.55,300/- on the ground that the respondent has

suffered permanent disability at 26% and hence awarded

compensation under the head 'loss of earning capacity due

to disability' by taking into consideration the relevant

factors. The learned counsel for the appellant-KSRTC

argued that the compensation under the head 'loss of

earning capacity' by considering the percentage of

disability cannot be awarded for the reason that the

respondent has not lost the job and after the accident he

was given job of Office Assistant Helper-B and his salary

was protected and his Medical Bills were also paid and was

granted leave on duty of 293 days and also the channel for

promotion was made available. Therefore, in any manner

the respondent has not lost earning capacity, the Tribunal

has awarded compensation which is not permissible.

Therefore, prays for setting-aside the impugned judgment

passed by the Tribunal.

5. Though the case is called out twice, the

learned counsel for the respondent is absent. Even on

previous two occasions, the counsel for the respondent

was absent. Therefore, the matter is taken up for disposal.

In the present case, when the respondent was a Trainee

Driver, who met with an accident. It is not an disputed fact

that the respondent had sustained injuries when he was

during the employment on behalf of the appellant

corporation. Therefore, has preferred claim petition before

the Tribunal by invoking the provisions of the Employees

Compensation Act.

6. The Tribunal while giving reasonings at para -

16 of the judgment had come to conclusion that the

respondent had sustained permanent disability at 60% to

the whole-body and accordingly held 60% of monthly wage

and once again multiplied by 26% of disability and

awarded compensation at Rs.50,300/-. But the Tribunal

virtually has discussed anything as to on what ground the

appellant is entitled for compensation. The question of

granting of compensation under the head 'loss of earning

capacity or loss of future income due to functional

disability' arises, only when the injured is not able to do

any avocation, then only the compensation under the head

'loss of earning capacity or under the loss of future earning

capacity' can be awarded, based on the salary, percentage

of functional disability and the relevant factors. But in the

present case, as contended by the learned counsel for the

appellant, the income of the claimant was protected in all

respects. Hence, the learned counsel for the appellant

submitted that the appellant corporation had sanctioned

the following benefits:

(i) Injury on Duty Benefits for 293 days;

(ii) reimbursed medical expenses on the basis of

bills produced;

(iii) paid on month's salary of Rs.3,300/- for

treatment period;

(iv) re-categorised the respondent's employment to

a post on par with that of a 'driver';

(v) retained the pay scale and service benefits;

(vi) confirmed the respondent's status from

'trainee' to permanent employee; and

(vii) made available the channel for promotion.

7. Therefore, when the appellant corporation had

taken care of all the interest of the respondent, for the

injuries suffered during the employment then there is no

question of awarding compensation under the head loss of

earning capacity due disability. The Tribunal had observed

that the respondent had suffered disability. Therefore,

awarded compensation under the said head. As discussed

above, the compensation under the head 'loss of earning

capacity or loss of future income' is only when due to the

fracture injuries and when the claimant is deprived of

future income / earning capacity. But in the present case,

the respondent even though being trainee was given a job

of Office Assistant Helper - B in the appellant corporation

and he is drawing the same salary as that of the driver.

Therefore, there is no question of granting compensation

under the head loss of earning capacity due to disability.

This fact is lost-sight of the Tribunal. What has been

discussed above regarding benefits sanctioned and also

the respondent was given a alternate desk work job as

Office Assistant Helper - B. Therefore, the job of the

respondent is continued and he is receiving same salary.

Under these circumstances and facts, the respondent is

not entitled for compensation under the head loss of

earning capacity due to 'disability'.

8. Further, the Tribunal has held that 60% of

disability. Further, held once again 26% disability. But

there is no observation or reasoning by the Tribunal in this

regard. Therefore, the compensation amount awarded by

the tribunal is not correct. Therefore, the judgment passed

by the Tribunal is liable to be set-aside. Hence, the

impugned judgment and award is required to be set-aside.

Therefore, the appeal succeeds.

9. Accordingly, I pass the following:

ORDER

i. The appeal is allowed.

ii. The impugned judgment and award dated

10.02.2016, passed in ECA No.172/2014, on

the file of Court of XXIth Additional Small

Causes Judge and the Motor Accidents Claims

Tribunal (SCCH-23) at Bengaluru, is set-aside.

iii. The amount in deposit shall be transferred to

the account of the appellant / Corporation.

     iv.    Draw award accordingly.




                                       Sd/-
                                      JUDGE




JJ