Sri A Anand vs The Manager
2022 Latest Caselaw 4793 Kant

                              1




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF MARCH, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

                 MFA NO.5170 OF 2019(ECA)

BETWEEN:

SRI. A. ANAND
S/O ANNU, AGED ABOUT 46 YEARS
R/O HOSAHALLI DIVISION
(GURGALLI ESTATE TATA COFFEE LTD.)
MUDIGERE TALUK- 577 132
CHIKKAMAGALURU DISTRICT
                                               ... APPELLANT
(BY SRI. VENKATEGOWDA .K, ADVOCATE)

AND:

1.     THE MANAGER
       (GURGALLI ESTATE, TATA COFFEE LTD.)
       AREHALLI POST, BELURU TALUK
       HASSAN DISTRICT-573 101

2.     THE DIVISIONAL MANAGER
       UNITED INDIA INSURANCE CO. LTD.
       DIVISIONAL OFFICE, K.M. ROAD
       CHIKKAMAGALURU - 577 101
                                             ...RESPONDENTS

(BY SRI. P.D. VISHWANATH, ADVOCATE FOR R1,
   SRI. P.B. RAJU, ADVOCATE FOR R2)

     THIS MFA FILED UNDER SECTION 30(1) OF EMPLOYEES
COMPENSATION ACT, AGAINST THE JUDGEMENT AND AWARD
DATED:11.04.2019 PASSED IN ECA.NO.1/2018 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, M.A.C.T., MUDIGERE,
ALLOWING THE CLAIM PETITION FOR COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                2




                          JUDGMENT

This appeal is preferred by the appellant/workman being

aggrieved by the judgment and award dated 11/04/2019,

passed in ECA.No.1/2018, by the Senior Civil Judge & MACT

at Mudigere, (hereinafter referred to as "the Civil Court" for

short) partly allowing the petition with interest at 12% per

annum.

2. This appeal is filed on the ground of inadequacy of

compensation awarded by the Civil Court more specifically

with regard to computation of disability which is grossly erred

by the Civil Court.

3. Brief facts of the case are that the petitioner who

was working in the estate owned by respondent No.1 met

with an accident on 29/01/2016 at about 4.00 p.m. while he

was doing coffee pulping work in the Hosalli Division of the

said estate. Due to the said accident, his right leg was tagged

to chain of the pulper machine and the petitioner sustained

serious injuries to his right leg. Immediately thereafter, he

was shifted to M.G.M.Hospital, Mudigere and as per the advice

of the doctor, he was shifted to Government Wenlock

Hospital, Mangalore, wherein he was treated as an inpatient

from 29/01/2016 to 31/01/2016 and thereafter, he was

admitted and treated from 08/02/2016 to 26/02/2016 as an

inpatient. Due to the injuries sustained in the accident, the

petitioner underwent several treatment, where he had to

spend huge money towards medical expenses and is still

under treatment. It is a specific claim of the petitioner that

the injuries sustained by him "arise out of and in the course of

his employment". It is stated that he was aged about 45

years as on the date of the accident and was getting daily

wages of Rs.400/- which included other lawful benefits such

as free quarters, overtime wages, bonus etc. In view of the

injuries sustained by him in the accident, the appellant/

claimant sought for compensation.

4. On parties being served, respondent/owner and

the insurer appeared before the Court through their

respective counsel and filed statements of objections

separately.

5. Respondent No.1 admitted the relationship of

employer and employee and also the accident having occurred

on 29/01/2016. Respondent No.1/owner also admitted that

the petitioner was aged about 48 years as on the date of the

accident. It is further stated that all the employees working

under respondent No.1 were insured with respondent

No.2/insurance company and admitted the wages as

Rs.247.97 as against Rs.400/-, which was claimed to be the

wage per day by the petitioner. He has not disputed that he is

the owner of the estate and he is the employer of the

petitioner. It is stated that respondent No.1/owner of the

estate is insured with respondent No.2/insurance company

and that the insurance policy was in force as on the date of

the accident. Accordingly, he prayed for dismissal of the

petition.

6. On the other hand, respondent No.2/insurance

company denied the entire claim made by the petitioner in the

petition, but admits the insurance policy and the same being

in force as on the date of the accident, but same being

subject to the terms and conditions of the policy. It is also

stated by respondent No.2 that the insurance company will

not be liable to pay interest as the same would have to be

paid by respondent No.1/owner of the estate. Hence, he

sought for dismissal of the petition.

7. On the basis of the pleadings, the trial Court

framed the following relevant issues for consideration:

(1) Whether the petitioner proves that, there exist a relationship of employee and employer between him and the respondent No.1?

(2) Whether the petitioner proves that, accident took place and he sustained injury during the course of employment?

(3) What is the age of the employee at the time of accident?

(4) What is the wage of the employee at the time of accident?

(5) Whether the petitioner is entitled for compensation? If so, what is the amount of compensation and from whom?

(6) What order or award?

In order to substantiate his case, the petitioner got

examined himself as PW.1 and examined Dr.Prasanna Kumar

as PW.2 and got marked 14 documents at Exs.P-1 to P-14.

Respondent Nos.1 and 2 did not lead any evidence. However,

got marked 7 documents as per Exs.R-1 to R-7 by consent.

8. After hearing both the parties and giving fair

opportunity to the parties, the Civil Court awarded

compensation of Rs.48,480/- with interest at 12% per annum

and held that respondent Nos.1 and 2 are jointly and

severally liable to pay the compensation amount and directed

respondent No.1 to pay the interest portion to the

appellant/petitioner and respondent No.2/insurance company

to deposit the compensation amount. Being aggrieved by the

award of compensation, the appellant/petitioner is before this

Court seeking enhancement of compensation, more

specifically on the ground that the disability percentage

calculated by the Tribunal is erroneous as PW.2/doctor has

erred in assessing the disability to the whole body to the

extent of 20% in view of loss of future earning capacity.

9. It is not in dispute that the accident occurred on

29/01/2016 at 4.00 p.m. while the petitioner was doing

pulping work in the estate of respondent No.1/owner. It is

also not in dispute that the appellant/employee of respondent

No.1 and respondent No.1 has also admitted the relationship

of employee and employer and he is the owner of the estate.

It is also not in dispute that respondent No.2/insurance

company has insured the workers of respondent No.1/estate

wherein the appellant is also one of the workmen.

10. On the pleadings of the parties, the material

placed before the Court and on hearing the contentions of the

counsel the substantial questions of law that arise for

consideration before this Court are:

(i) Whether the Civil Court is right in awarding compensation, more specifically with regard to the disability of future earning capacity from 20% to the extent of 6.6% as stated by the doctor/PW.2 in his evidence and as per the disability certificate at Ex.P-14 award of compensation?

(ii) Whether the Civil Court was justified in holding that the loss of earning capacity of the Appellant is 6.66% which is contrary to the evidence of PW2 and Ex.P14 Disability certificate which clearly discloses that the Appellant has suffered 20% permanent disability?

11. The short point for consideration before this Court

is, "whether the trial Court could have gone beyond the

expert opinion of the assessment with regard to disability

based on the clinical examination of the petitioner, wherein

he has assessed 20% disability to the whole body and that

20% to the loss of earning capacity as determined by the

doctor and found that 50% restricted movement of ankle joint

and 30% power reduced and 20% being the loss of earning

capacity".

12. This aspect of the matter has been clearly stated

by the doctor/PW.2 and has also produced Ex.P-14 disability

certificate showing the disability to the extent of 20% earning

capacity, which is the loss arisen out of the accident during

the course of his employment. The Civil Court though has

appreciated the same in its reasoning, considering the total

disability of 20% towards loss of future earning and also

came to a conclusion that there was no reason to discard

Ex.P-14 issued by the doctor/PW.2 on the basis of the

evidence. However, has deducted 1/3rd as disability and

arrived at 6.66% which is unsustainable, and the same is

seriously contended by the learned counsel for the

appellant/claimant to be erroneous.

13. Learned counsel appearing for the insurer fairly

submits that there is an error in the assessment of disability

while awarding 6.66% as loss of future earning capacity by

the Civil Court.

14. Placing the said submission of learned counsel for

the insurer on record and appreciating the same, I am in

agreement with the learned counsel for the appellant/claimant

that the loss of future earning capacity assessed at 20% by

the doctor, an expert opinion has to be taken on the face

value in view of Section 4(1)(c)(ii) of the Employee's

Compensation Act, 1923 as well as the explanation that when

there is specific clinical assessment made by the doctor/PW.2,

the same has to be accepted by the Civil Court. Whereas, in

the present case on hand, the Civil Court has deducted 1/3rd

as is normally done in a motor accident claims case and

arrived at 6.66% towards loss of earning and the same is not

acceptable in law and the facts and circumstances of the

present case. The Civil Court has taken the age of the

claimant as 47 years and the relevant factor as 163.07 and

the income is taken at Rs.7,440/- (247.97 x 30) per month as

per Section 4(1)(A) of the Act for arriving at the income and

the same has to be multiplied by 20% instead of 6.6% which

has been taken by the Tribunal. Hence, the computation of

compensation would be 7,440/- x 60% x 20% x 163.07 =

1,45,589/- as against 48,480/- awarded by the Civil Court.

15. The other aspect of the award of the Tribunal is

interest at 12% to be paid by the employer/respondent No.1

is not seriously questioned and thus, the same does not call

for any interference. However, in view of the above discussion

and the submission of learned counsel for the appellant and

respondents, I do not find any reason warranting interference

with the other terms and conditions stipulated by the Civil

Court. The first and second substantial questions of law are

answered in the negative.

16. Accordingly, I pass the following:

ORDER

(i) The appeal is partly allowed.

(ii) Compensation is modified from Rs.48,480/- to

Rs.1,45,589/-.

(iii) The insurer/respondent No.2 shall pay the enhanced

compensation within a period of four weeks from the

date of receipt of certified copy of this order.

(iv) It is needless to mention that the other terms and

conditions stipulated by the trial Court is not interfered

and the same shall stand intact.

(v) Learned counsel, Sri P.B.raju is permitted to file his

vakalat within a period of two weeks.

Sd/-

JUDGE S*