Karnataka High Court

Sri. Rafiq Pasha vs Sri G. Srinivasa on 17 May, 2022

Bench: J.M.Khazi

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 17TH DAY OF MAY, 2022

                           BEFORE

              THE HON'BLE MS.JUSTICE J.M.KHAZI

                M.F.A.NO.7011 OF 2013 (WC)
BETWEEN:

SRI. RAFIQ PASHA
S/O AMEERJAN,
AGED ABOUT 30 YEARS,
R/AT NO.642, TANK ROAD,
DODDABALAPURA VILLAGE,
BENGALURU RURAL DISTRICT
                                           ... APPELLANT
(BY SRI. RAMACHANDRA R NAIK, ADVOCATE)

AND:

1.     SRI G. SRINIVASA,
       S/O B.C. GUNDAPPA,
       NO.13A.24-1, 6TH CROSS,
       2ND MAIN, BAPUJINAGAR,
       MYSORE ROAD,
       BENGALURU - 500 026

2.     THE ORIENTAL INSURANCE CO. LTD
       NO.48, CHURCH STREET,
       BENGALURU - 560 001
       BY ITS GENERAL MANAGER
                                         ...RESPONDENTS
(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R2;
    V/O/DTD 26.09.2013, NOTICE TO R1 DISPENSED WITH)

    THIS MFA IS FILED UNDER SECTION 30 OF THE WORKMEN
COMPENSATION ACT, 1923 PRAYING TO ALLOW THE APPEAL
AND ENHANCE THE COMPENSATION BY MODIFYING THE
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JUDGMENT AND ORDER DATED 28.02.2013 PASSED BY THE
LEARNED LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION SUB-DIVISION-1, BENGALURU IN
NO.Ka A Bem-5/WCA/NFC/CR-5/2011, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED ON
31.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                                   JUDGMENT

Not being satisfied with the quantum of compensation

granted vide the impugned Judgment and order dated

28.02.2013 in ¥ÀæPÀgÀt ¸ÀASÉå: PÁD¨ÉA-5/qÀ§Æèöå¹J/J£ïJ¥sï¹/¹Dgï-

5/2011 on the file of Labour Officer and Commissioner for

Employees' Compensation (hereinafter referred to as 'CEC'),

petitioner has come up with this appeal under Section 30 of

Workmen's compensation Act, 1923 (hereinafter referred to as

'Act').

2. For the sake of convenience the parties are referred

to by their rank before the CEC.

3. Petitioner filed the claim petition before the CEC

under Section 22 of the Act, seeking compensation for the

injuries sustained by him as driver of Goods canter vehicle

bearing registration No.KA-02/AB-7322 (herein after referred to

as offending vehicle), contending that the said injuries were

sustained by him in an accident arising out of and in the course

of employment of respondent No.1.

4. FACTS: Brief facts leading to the filing of the claim

petition are that petitioner was working as a driver under

respondent No.1 in the offending vehicle on salary of Rs.8,000/-

p.m. The offending vehicle was covered by a valid policy issued

by respondent No.2 covering the period from 03.10.2007 to

02.10.2008. On 01.04.2008, while he was proceeding in the

offending vehicle on NH-7, near Electrical Sub Station, Veldurthi

P.S. Ltd, Kurnool District, the offending vehicle met with an

accident. In the said accident, he suffered grievous injuries.

Initially he took treatment at Government Hospital, Kurnool and

shifted to St.John's Medical College Hospital on 02.04.2008.

During the treatment his right hand was amputed and implants

were inserted to his right leg. Even after discharge, he continued

to take treatment. On account of permanent partial disability,

petitioner has suffered loss of income. He is entitled for

compensation in a sum of Rs.15,00,000/- with interest.

5. After due service of notice, respondent No.1

appeared and filed written statement admitting that there exists

relationship of employer and employee between him and the

petitioner on salary of Rs.8,000/-p.m. He has also admitted that

petitioner met with an accident arising out of and in the course

of his employment with respondent No.1. As on the date of

accident, petitioner was holding a valid and effective driving

license and the offending vehicle was covered by a valid policy

and as such respondent No.2 is liable to pay the compensation.

6. Respondent No.2 has filed written statement

disputing the coverage of the offending vehicle and its liability to

indemnify respondent No.1. Its liability if any is subject to the

terms and conditions of the policy. The relationship of employer

and employee between respondent No.1 and petitioner and that

he was paid salary of Rs.8,000/- p.m. and that on 01.04.2008

he was engaged by respondent No.1 to drive the offending

vehicle are denied. It is denied that petitioner sustained injuries

in an accident dated 01.04.2008 during the course of his

employment and sustained severe injuries resulting in

permanent partial disability affecting the earning capacity of the

petitioner. At the time of alleged accident, petitioner was not

holding a valid and effective driving license and the offending

vehicle was not having valid permit and as such respondent No.2

is not liable to indemnify respondent No.1 and prays to dismiss

the petition.

7. Based on these pleadings necessary issues were

framed by the CEC.

8. In support of his case, petitioner got himself

examined as PW-1 and got marked Ex-P1(1) to (13). He has

examined the Doctor as PW-2, got marked Ex.P2(1) and (2) and

one more witness as PW-3 and got marked Ex.P3 (1) to (4).

9. On the other hand on behalf of respondent No.2,

RW-1 is examined and Ex-R2 (1) to (4) are marked.

10. Respondents have not led any evidence before CEC.

11. After hearing arguments of both sides, vide the

impugned judgment and order, the CEC has partly allowed the

petition and granted compensation in sum of Rs.2,61,351/- with

interest at 7.5% from the date of petition till the date of order

i.e., 28.03.2013 and from 29.03.2013 at 12% p.a. till the

deposit is made and directed respondent No.2 to pay the same.

12. Being aggrieved by the impugned judgment and

order, petitioner has come up with this appeal contending that

the CEC has erred in not considering the disability as 90% and

having failed to reimburse the actual medical expenses incurred

by him. The CEC has also erred in granting interest at 7.5%

instead of 12%. The CEC has also not properly adopted the

fractions for assessing loss of earning capacity.

13. Based on the grounds urged by the petitioner, vide

order dated 16.03.2021, this Court has framed the following

substantial questions of law:

i. Whether the injury sustained by the claimant fall under Schedule-I part II of Workmen Compensation Act, 1923 ?

ii. Whether the order/award of the Commissioner is otherwise opposed to law, material evidence placed on record ?

14. Heard arguments and perused the record.

15. My findings on the substantial question of law are:

SQL.No.(i): Partly in the Affirmative

SQL.No.(ii):In the Affirmative

16. Substantial Question of Law Nos (i) & (ii): Since

these two substantial questions of law involve common

discussion, the same are considered together.

17. Though respondent No.2 has disputed that the

relationship of employer and employee exists between

respondent No.1 and the petitioner, it has not challenged the

impugned judgment and order and thereby the findings to the

effect that there exists relationship of employer and employee

between them and that the petitioner was injured in an accident

arising out of and in the course of employment has attained

finality. The CEC has accepted the evidence of PW-2 that on

account of amputation of right hand, the petitioner has sustained

90% disability of the right upper limb and it is 40% of the whole

body and so far as lower limb he has sustained 28% disability

and it is 14% of the whole body and thereby the total disability

suffered by the petitioner is 54%.

18. As per Section 4(1)(b) of the Employees

Compensation Act, 1923, in case of permanent total disability,

the maximum compensation that could be granted is 60% of the

monthly wages multiplied by the relevant factor. In other words,

in case of permanent partial disability, the compensation that

could be granted cannot exceed 60% of the wages, as that is the

maximum compensation that could be granted in case of

permanent total disability. Though respondent No.1 has pleaded

that he used to pay salary of Rs.8,000/- to the petitioner in

addition to the batta, having regard to the fact that the incident

is dated 01.04.2008, as per Section 4(1B) of the Employees

Compensation Act, 1923, the wages that is required to be taken

into consideration is Rs.4,000/-. In case of permanent total

disability, 60% of this amount is to be taken into consideration

which comes to Rs.2,400/-. As per the driving license of the

petitioner at Ex.P1(7), he was born on 10.05.1975 and

therefore, the CEC has taken the age of the petitioner as 33

years and consequently, the relevant factor is 201.66. Taking

into consideration these components, the CEC has calculated the

compensation payable to the petitioner as 2,400 x 201.66 =

Rs.4,83,984/-. Since this is the maximum which could be

granted in case of permanent total disability, 54% of is 4,83,984

x 54% = Rs.2,61,351/- and accordingly the CEC has calculated

the compensation payable to the petitioner as Rs.2,61,351/-.

19. As per Section 4 of the Employees Compensation

Act, 1923, if the injury suffered by the petitioner results in

permanent partial disability and if such injury is specified in Part-

II of Schedule-I, such percentage of disability is to be taken into

consideration for calculating the compensation payable. Only in

case the injury suffered is not specified in Part-II of Schedule-I,

then the percentage of the compensation payable is to be

assessed as per the disability calculated by the Medical

Practitioner. As evident from substantial question of law No.(i), it

is to be examined whether the injury sustained by the petitioner

falls under Part-II of Schedule-I of the Employees Compensation

Act, 1923. From the documents placed on record which is

corroborated by the testimony of PW-2, the right hand of the

petitioner is amputed above the elbow level. As per Part-II of

Schedule-I, Sl.No.2, the amputation of upper arm below the

shoulder with stump less than 20.32 cms from the tip of

Acromion, the disability would be 80%. In the present case, the

amputation of the right hand of the petitioner is though above

the elbow level, it is not with stump less than 20.32 cms and

therefore it does not fall under Sl.No.2. However, Sl.No.3 of

Part-II of Schedule-I relates to amputation of the upper limb

from 20.32 cms from the tip of Acromion to less than 11.43 cms

below the tip of Olecranon. In that case the disability comes to

70%. So far as amputation of right upper limb, the case of the

petitioner falls under this category i.e. Sl.No.3. The amputation

is in between 20.32 cms from the tip of Acromion to less than

11.43 cms below the tip of Olecranon. Therefore, the disability

so far as the right upper limb is concerned is to be taken as

70%.

20. As evident from the testimony of PW-2 and as

accepted by the CEC, the petitioner has also suffered closed

fracture (Rt) femur and on account of the same, he walks with a

limp restriction of joint moment (Rt) hip. There is difficulty for

him to stand, fold his leg, climb the steps and consequently, the

lower limb disability is calculated at 28% and it comes to 14% so

far as the whole body disability is concerned. Therefore, in

addition to petitioner having suffered 70% disability so far as his

right upper limb is concerned, he has sustained 14% whole body

disability so far as right lower limb is concerned. Therefore, the

total disability suffered by the petitioner comes to 84%.

Consequently, the compensation is required to be calculated by

taking the disability at 84%.

21. As rightly held by the CEC, since the accident is

dated 01.04.2008, the income of the petitioner is required to be

taken at Rs.4,000/-. Since the maximum compensation that

could be granted in case of permanent total disability is 60%,

calculation is required to be made by taking 60% of the salary

which comes to Rs.2,400/- p.m. As on the date of accident,

petitioner was aged 33 years and therefore, the relevant factor

to be taken into consideration is 201.66. With these

components, the total compensation payable in case of

permanent total disability is 2,400 x 201.66 = Rs.4,83,984/-.

Since the disability suffered by petitioner is calculated at 84%,

this compensation is required to be multiplied by 84% i.e.,

4,83,984 x 84% = Rs.4,06,546/-. Therefore, petitioner is

entitled for compensation in a sum of Rs.4,06,546/-.

22. As per Section 2A, the employee is entitled for

reimbursement of the actual medical expenses incurred by him

for the treatment of injuries caused during the course of

employment. It is pertinent to note that the CEC has not at all

granted any compensation towards medical expenses, even

though the petitioner has produced number of medical bills. The

total amount admissible as per the medical bills at Ex.P1(13) is

Rs.1,09,379/-. In addition to compensation for the disability

suffered, petitioner is also entitled for compensation in a sum of

Rs.1,09,379/-. Thus, in all petitioner is entitled for total

compensation in a sum of Rs.5,15,925/-.

23. As per Section 4A (3), the employer is required to

make payment within a period of one month from the date it fell

due and in case of default, he is liable to pay interest at 12%

p.a. However, CEC has granted interest at the rate of 7.5% from

the date of petition till the date of his order and 12% from the

next date of his order till realization which is incorrect. From the

date of accident, within one month the employer is required to

deposit the compensation or where he disputes its liability, to

the extent claimed he shall be bound to make provisional

payment based on the extent of liability which he accepts. In the

present case if the employer has deposited any amount, minus

the said amount, for the remaining amount he is liable to pay

interest at 12% p.a. after expiry of one month from the date on

which it fell due. Since in the present case respondent No.2 has

covered the risk of respondent No.1, it is liable to pay the

compensation with interest at 12% p.a. Accordingly, substantial

question of law Nos.(i) and (ii) are answered and I proceed to

pass the following:

ORDER

(i) Appeal filed by the appellant/petitioner is

allowed in part.

(ii) The impugned judgment and order is

modified increasing the compensation to

Rs.5,15,925/- with interest at 12% p.a.

from the date of expiry of one month on

which date the liability fell due, as

against Rs.2,61,351/- granted by the

CEC.

(iii) Respondent No.2 is directed to deposit

the compensation together with interest

within a period of six weeks (minus the

compensation already paid/deposited).