Karnataka High Court
Shivanna @ Shivamurthy vs G M Thippeswamy on 22 November, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.2911/2017 (WC)
BETWEEN:
SHIVANNA @ SHIVAMURTHY,
S/O GODAPPA,
NOW AGED ABOUT 23 YEARS,
R/O KUNCHIGANAHALU VILLAGE,
CHITRADURGA TALUK-577501. ...APPELLANT
(BY SRI RANGEGOWDA N.R., ADVOCATE)
AND:
1. G.M. THIPPESWAMY,
S/O MARAPPA,
AGED MAJOR,
R/AT KUNCIGANAHALU VILLAGE,
CHITRADURGA TALUK-577501.
2. THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, BESIDE TALUK OFFICE,
VASAVI CIRCLE, CHITRADURGA-577501.
...RESPONDENTS
(BY SRI C. SHANKAR REDDY, ADVOCATE FOR R2,
R1 IS SERVED AND UNREPRESENTED)
THIS M.F.A IS FILED UNDER SECTION 30(1) OF EMPLOYEES
COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD
DATED 19.01.2016 PASSED IN ECA.NO.196/2014 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND CFEC,
CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION.
2
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for respondent No.2.
2. This appeal is filed challenging the judgment and
award dated 19.01.2016, passed in E.C.A.No.196/2014, on the
file of the II Additional Senior Civil Judge and CFEC, Chitradurga,
('the Commissioner' for short) questioning the quantum of
compensation.
3. The claimant before the Commissioner contended
that on account of the accident which took place on 08.10.2006,
he had suffered grievous injury, as a result, he is unable to do
the job of autorickshaw driver. In support of his contention, he
examined the doctor as P.W.2, who assessed the disability of
25% to 30% and the Commissioner has taken the disability of
15% and calculated the loss of income taking the income of
Rs.3,000/- per month and awarded 9% interest and hence the
present appeal is filed.
4. The main contention of the learned counsel for the
appellant is that the Commissioner committed an error in taking
the income of Rs.3,000/- per month and also committed an error
in taking the 15% disability while calculating the loss of income
and awarding 9% interest from the date of petition. The learned
counsel submits that apart from the income of Rs.4,000/- per
month, the claimant was also getting Rs.50/- per day bata and
hence total income of the claimant is Rs.5,500/- per month and
hence the compensation has to be enhanced.
5. Per contra, the learned counsel for respondent No.2
submits that no document has been placed before the Court that
he was earning Rs.5,500/- per month as contended by the
learned counsel for the appellant. The learned counsel submits
that the Tribunal has rightly taken the income of Rs.3,000/- per
month and disability of 15%. However, he fairly submits that
the interest awarded at 9% per annum is erroneous and should
have awarded 12% interest from the date of 30 days after the
accident.
6. Having heard the respective learned counsel and also
on perusal of the material available on record, it is the claim of
the claimant that he was an auto rickshaw driver and while
driving the vehicle, the accident was occurred. In order to
prove his contention, he has also produced the driving licence
Ex.P.9. In the year 2006 when the accident was taken place,
the wages was fixed by the Government at Rs.4,000/- per
month and the same has not been considered. The
Commissioner has taken the income of Rs.3,000/- per month
and hence the same is erroneous and ought to have taken the
wages fixed by the State i.e., Rs.4,000/- per month.
7. The injured sustained the injuries i.e., contusion and
tenderness of right shoulder and neck, contusion and tenderness
on left side of chest and lacerated wound to the right side of
scalp. In support of the injuries, he examined the doctor as
P.W.2, who assessed the disability of 25% to 30% and having
considered the material on record, particularly, the evidence of
P.W.2, the Commissioner assessed the disability of 15% and
hence, I do not find any error committed by the Commissioner in
taking 15% disability considering the nature of injuries sustained
by him.
8. In view of re-assessing the income of Rs.4,000/- per
month and taking 60% of the income and disability of 15% and
applying the factor of 219.95, the compensation comes to
Rs.79,182/- (Rs.4,000/- x 60% x 219.95 x 15%) as against
Rs.59,400/-. The Commissioner committed an error in allowing
the interest at 9% per annum and when the claim is made under
the Employees Compensation Act, the interest would be 12% per
annum from the date of 30 days after the accident.
9. The Commissioner while considering the liability is
concerned directed the insured to pay the compensation only on
the ground that the vehicle was plied outside the permitted area.
In view of the judgments rendered by this Court in the case of
THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE
CO. LTD., v. SMT. JAYAMMA AND OTHERS reported in ILR
2018 KAR 1849 and in the case of S.N. KENCHANNA v.
ANITHA & OTHERS reported in ILR 2018 KAR 3921, in case
of deviation it is held that it is not a fundamental breach and it is
only an infraction. When such being the principles laid down in
the judgments referred supra, the Commissioner has committed
an error in fixing the liability on the insured instead of the
Insurance Company. Hence, the liability of the insured is set
aside and the liability is fixed on the Insurance Company to pay
the compensation.
10. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 19.01.2016, passed in
E.C.A.No.196/2014, is modified granting
compensation of Rs.79,182/- as against
Rs.59,400/- with interest at 12% per annum
from the date of 30 days after the accident.
(iii) The Insurance Company is directed to pay the
compensation amount with interest within six
weeks from today.
(iv) The Registry is directed to transmit the records
to the concerned Tribunal, forthwith.
Sd/-
JUDGE
MD/CP
