Karnataka High Court
The Divisional Manager vs Dhanraj And Anr on 18 December, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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MFA No. 202210 of 2018
C/W MFA.CROB No. 200087 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.202210/2018 (WC)
C/W.
MFA CROSS OBJ. NO.200087/2023
IN MFA NO. 202210 OF 2018
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LTD,
MICRO OFFICE RACHOD VEERANNA BUILDING,
1ST FLOOR, CHITTAPUR ROAD,
Digitally signed
by LUCYGRACE YADGIRI-585202.
Location: HIGH ...APPELLANT
COURT OF (BY SRI SANJAY M. JOSHI, ADVOCATE)
KARNATAKA
AND:
1. DHANRAJ @ PRASHANTH
S/O SHIVAPPA JADAV,
AGE: 22 YEARS, OCC: COOLIE NOW NIL,
R/O KUPPI TANDA,
TQ. SHORAPUR,
DIST. YADGIRI-585201.
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MFA No. 202210 of 2018
C/W MFA.CROB No. 200087 of 2023
2. G. SURYANARAYA
S/O G. VENKANNA,
AGE: MAJOR OCC: AGRICULTURE AND OWNER
OF THE HARVESTER MACHINE BEARING
CHASSIS NO.07067420
ENGINE NO.JUY632545,
R/O HANUMANAGAR CAMP,
TQ. SHORAPUR,
DIST. YADGIRI-585201
...RESPONDENTS
(BY SRI KRUPA SAGAR PATIL, ADVOCATE FOR R1;
R2-SERVED)
THIS MFA IS FILED UNDER SECTION 30(1) OF E.C.
ACT, PRAYING TO CALL FOR THE ENTIRE RECORDS OF
THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
SHORAPUR, IN ECA NO.01/2017 AND SET ASIDE AND
MODIFY THE JUDGMENT AND AWARD DATED 28.06.2018
AND REDUCE THE EXTENT OF LIABILITY SADDLED UPON
THE APPELLANT-INSURANCE COMPANY AND RESTRICT IT
TO RS.6,75,264.40 AS AGAINST RS.10,42,000/- AS
SHOWN IN THE AWARD.
IN MFA CROSS OBJ. NO. 200087 OF 2023.
BETWEEN:
DHANARAJ @ PRASHANTH
S/O SHIVAPPA JADAV,
AGE: 27 YEARS, OCC: COOLIE NOW NIL,
R/O KUPPI TANDA,
TQ. SHORAPUR,
DIST. YADGIRI.
...CROSS OBJECTOR
(BY SRI KRUPA SAGAR PATIL, ADVOCATE)
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MFA No. 202210 of 2018
C/W MFA.CROB No. 200087 of 2023
AND:
1. G. SURYANARAYA
S/O G. VENKANNA,
AGE: MAJOR, OCC: AGRICULTURE AND OWNER
OF HARVESTER MACHINE BEARING
CHASSIS NO. 07067420,
ENGINE NO. JUY632545,
R/O HANUMANAGAR CAMP,
TQ. SHORAPUR,
DIST. YADGIRI - 585224.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO LTD.,
MICRO OFFICE RACHOD VEERANNA BUILDING,
1ST FLOOR, CHITTAPUR ROAD,
YADGIRI - 585202.
...RESPONDENTS
(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
R1 - V/O DATED 15.09.2023 NOTICE DISPENSED WITH)
THIS MFA CROB., IS FILED UNDER SECTION 41 OF
RULE 22 OF CPC, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 28.06.2018 PASSED BY THE SENIOR
CIVIL JUDGE AT SHORAPUR, IN ECA NO.1/2017 BY
ENHANCING THE COMPENSATION AS PRAYED FOR.
THE MFA AND THE MFA CROB. COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 202210 of 2018
C/W MFA.CROB No. 200087 of 2023
JUDGMENT
1. The appeal in MFA No.202210/2018 is filed
by the Insurance Company aggrieved by the judgment
and award dated 28.06.2018 passed in ECA
No.1/2017 on the file of the Court of Senior Civil
Judge and AMACT, Shorapur (for short 'Tribunal'), by
which, the Tribunal has awarded compensation of
Rs.10,42,000/- with interest at 9% per annum from
the date of petition till realization and has directed the
appellant - Insurance Company to pay the same.
2. The MFA Crob.No.200087/2023 is filed by
the injured-claimant seeking enhancement of
compensation.
3. Brief facts of the case are that;
a) On 07.10.2016 the claimant under the
instructions of his employer - respondent No.1 had
gone for harvesting work at Shelagaon Village,
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Degalur Taluk, Nanded District, Maharashtra State and
while working in the land of one Sri Shivakumar, when
the driver stopped harvester to remove the waste in
the filter the claimant tried to remove the waste from
the filter the driver of the harvester moved the
harvester in rash and negligent manner resulting in
the right hand of the claimant coming in contact with
the harvester blade and sustaining grievous injuries.
The claimant was shifted to Prathiba Hospital in
Nijamabad at Maharashtra, admitted as indoor patient
for a period of 7 days and he was operated and his
right hand was amputated. Thereupon, he filed claim
petition under Sections 3, 4 10(A) of Workman
Compensation Act, 1923, seeking compensation
contending that he was aged 20 years at the time of
incident, working as a Coolie and earning Rs.400/- per
day, under respondent No.1, and due to the accident
resulting in amputation of his right hand he has been
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rendered him permanently disabled. Hence, sought
for compensation of Rs.16,00,000/- from the
respondents with interest at 12% per annum from the
date of accident till realization.
b) On service of notice, respondent No.1
appeared before the Tribunal and admitted the
relationship of employer and employee and also
admitted that the claimant was working under him as
a Coolie and that he was being paid salary of Rs.300/-
per day. He contended that the harvester was insured
with respondent No.2 - Insurance Company and the
same was valid as on the date of incident, as such,
respondent No.2 - Insurance Company is liable to pay
the compensation.
c) The Insurance Company before the Tribunal
in its statement of objections denied the petition
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averments and also denied that the accident had
occurred during the use of harvester.
d) The points for consideration were framed,
evidence was led, in that, the claimant has been
examined as PW1 and one Dr. Sri Shreeharsha G. Patil
has been examined as PW2, 16 documents have been
marked as Exs.P1 to P16. Two witnesses have been
examined on behalf of the respondents.
e) The Tribunal on appreciation of the evidence
has held that the accident in question resulting in
injury to the claimant had occurred during the course
of employment under respondent No.1, while the
claimant was cleaning the harvester and that the said
harvester having been insured with the Insurance
Company, the Insurance Company is liable to pay the
compensation.
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4. Aggrieved the same, both, the Insurance
Company and the claimant are before this Court in
respective appeal and cross objections.
5. The learned counsel for the appellant-
Insurance Company submits that, the Tribunal has
assessed the income of the claimant at Rs.9,000/- per
month, whereas, as per the notification issued under
Section 4(1B) of the Employees' Compensation Act,
1923, it has to be assessed at Rs.8,000/- per month.
He further submits that, since the claimant has
suffered injury, which is as per the Schedule, 60% of
the monthly wages has to be taken and not the entire
amount. Thus, he submits that the wrong calculation
of the wages and the percentage of the disability has
resulted in grant of exorbitant compensation to the
claimant, hence, seeks for allowing of the appeal.
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6. Sri Krupa Sagar Patil, learned counsel
appearing for the claimant - cross objector submits
that the injury sustained by the claimant has to be
assessed from the point of nature of avocation being
carried on by the claimant. He submits that the
claimant was working as a harvester. Use of right
hand is essential for the nature of the his avocation.
He submits that admittedly claimant has lost his right
arm in the accident resulting in its amputation. As
such, the disability has to be assessed at 100%
though the injury falls in the nature of 60% in the
Schedule of the Act. In support of his case, he relies
upon the judgment of the Apex Court in the case of
CHANAPPA NAGAPPA MUCHALAGODA V.
DIVISIONAL MANAGER, NEW INDIA INSURANCE
COMPANY LIMITED - AIR 2020 SUPREME COURT
166. He further submits that the Tribunal erred in
awarding the interest at the rate of 9% per annum
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from the date of petition which ought to have been
12% per annum from the date of incident. In that
regard he relies upon the judgment of Hon'ble Apex
Court in the case of SHOBHA V. CHAIRMAN,
VITHALRAO SHINDE SAHAKARI SAKHAR
KARKHANA LTD., - AIRONLINE 2022 SC 314.
7. He submits that, the 60% of the assessed
income has to be taken, instead of 50%, and in view
of the disability being 100% the entire 60% of the
compensation has to be multiplied by the applicable
factor. Thus, he submits that the award of
compensation is erroneous warranting interference.
8. Heard the learned counsel for the parties
and perused the records.
9. The substantial questions of law that arise
for consideration in these matters are:
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1) Whether the Tribunal is justified in
assessing the income of the claimant at
Rs.9,000/- per month even when the
notification issued by the Central
Government under Section 4(1B) of the Act
specifies the same at Rs.8,000/- per
month?
2) Whether the Tribunal is justified in taking
into consideration 50% of the income
contrary to the prescribed 60% in the
Schedule of the Act?
3) Whether the Tribunal is justified in
awarding 9% of interest from the date of
petition instead of 12% from the date of
incident?
10. The accident resulting in amputation of the
right arm of the claimant is not in dispute. The
accident having taken place during the course of the
employment is also not in dispute. Though
respondent No.1 - employer of the claimant had
admitted that the claimant was paid Rs.300/- per day,
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which has been taken into consideration by the
Tribunal assessing the monthly income at Rs.9,000/-
per month, the notification issued by the Central
Government vide No. SO 1258(E) dated 31.05.2010
reads as under:
"In exercise of power vested under Sub-
Section (1B) of the Section 4 of the Employees
Compensation Act, 2023, the Central
Government hereby specifies for the purpose of
Sub-section(1) of the said Section following
amount as monthly wages with effect from the
date of publication of this notification in Official
Gazette namely, 'Rupees: Eight Thousand'".
11. In that view of the matter the monthly
wages of the claimant is considered at Rs.8,000/-
instead of Rs.9,000/- assessed by the Tribunal for the
purpose of calculation of compensation under Section
4(1) of the Act.
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12. The Hon'ble Apex Court in the case of
CHANAPPA NAGAPPA MUCHALAGODA referred
(supra), wherein, the Driver of the lorry had suffered
37% whole body disability, considering the nature of
avocation his functional disability has been assessed
at 100% and though while assessing the income, 50%
of the assessed income was taken into consideration
applying relevant factor of functional disability was
assessed at 100%. Applying the principles of the said
case, even in the instant case the claimant was
working as a Coolie/harvester i.e., cutting paddy in
the paddy field, usage of right hand being
predominant, amputation would undoubtedly result in
complete reduction of his functional ability. As such
the functional disability has to be taken at 100% and
not as 60% in view of the peculiar fact situation of the
case. Since, the disability as per schedule is 60%,
60% of the assessed income i.e., Rs.8,000/- would be
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Rs.4,800/-. Applying the relevant factor 226.38 the
claimant would be entitled for compensation of
Rs.10,86,624/-. In addition, the claimant is also
entitled for medical expenses of Rs.23,708/- which is
awarded by the Tribunal. Thus, the claimant is
entitled for compensation of Rs11,10,332/-.
13. The Tribunal while awarding the interest at
the rate of 9% per annum, has calculated the same
from the date of petition till realization. As per the
provisions of the Act the claimant is entitled for
interest at 12% per annum from the date when it fell
due. As the Hon'ble Apex Court in the case of
SHOBHA (supra) has awarded the interest amount
from the date of accident, taking the same into
consideration interest at 12% per annum is directed to
be paid from the date of incident till realization. The
substantial questions of law raised above are
answered accordingly.
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14. The appeals are allowed in part.
15. The claimant is entitled for total
compensation of Rs.11,10,332/- with interest at 12%
per annum from the date of incident till realization.
16. Any amount in deposit be transmitted to the
Tribunal along with trial Court Records.
Sd/-
JUDGE
SBS
