Karnataka High Court
Sri K Srinivasa vs Sri V Arun Kumar on 6 December, 2023
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NC: 2023:KHC:44434
MFA No. 1096 of 2018
C/W MFA No. 3794 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 1096 OF 2018
C/W
MISCELLANEOUS FIRST APPEAL NO. 3794 OF 2018
IN MFA NO. 1096 / 2018
BETWEEN:
BRANCH MANGER
SHRIRAM GENERAL INS. CO. LTD.,
S-5, 2ND FLOOR,
MONARCH CHAMBERS,
INFANTRY ROAD,
BANGALORE 01
NOW AT:
Digitally
THE LEGAL MANGER
signed by JAI
JYOTHI J SRHIRAM GENERAL INS. CO.LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE
Location:
HIGH BELEKALHALLI MAIN ROAD,
COURT OF OPP BANNERGHATTA ROAD,
KARNATAKA LIMB POST,
BANGALORE 76.
...APPELLANT
(BY SRI. PRADEEP B.,ADVOCATE)
AND:
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MFA No. 1096 of 2018
C/W MFA No. 3794 of 2018
1. K SRINIVASA
S/O KRISHNAPPA
R/AT NO.13/7,
9TH MAIN,
4TH A CROSS, SRINVIASANAGARA
BSK 1ST STAGE, BENGALURU - 50.
2. V. ARUNNKUMAR
S/O VELU,
R/AT NO.1420, 11TH MAIN,
10TH CROSS, SRINIVASA NAGAR
BANASHANKARI,
BANGALORE - 50.
...RESPONDENTS
(BY SRI. SURESH M LATUR FOR R1.,ADVOCATE;
R2- SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT AND AWARD DATED 18.12.2017 PASSED
IN ECA NO.53/2016 ON THE FILE OF THE IX ADDITIONAL
SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF
SMALL CAUSES AND ADDITIONAL MACT, MEMBER MACT-
7, BENGALURU (SCCH-7), AWARDING COMPENSATION
OF RS.6,90,458/- WITH INTEREST AT 12% P.A. FROM
EXPIRY OF ONE MONTH FROM THE DATE OF ACCIDENT
TILL ITS REALIZATION.
IN MFA NO. 3794 / 2018
BETWEEN:
SRI. K. SRINIVASA
S/O SRI. KRISHNAPPA
AGED 34 YEARS,
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MFA No. 1096 of 2018
C/W MFA No. 3794 of 2018
OCC: DRIVER
R/AT NO.13/7
9TH MAIN, 5TH A CROSS,
SRINIVASANAGAR
BSK 1ST STAGE
BENGALURU-560050
...APPELLANT
(BY SRI. SURESH M. LATUR .,ADVOCATE)
AND:
1. SRI V. ARUN KUMAR
S/O VELU
NO.1420, 11TH MAIN,
10TH CROSS,
SRINVIASAN AGAR
BANASHANKARI BENGALURU-560050
2. THE MANAGER
SHRIRAM GENERAL INSURANC CO. LTD.,
3RD FLOOR,
MONACH CHAMBERS
INFANTRY ROAD,
BENGALURU-560 001
...RESPONDENTS
(BY SRI.PRADEEP. B.,ADVOCATE FOR R2;
R1 - SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 30(1) OF EMPLOYEES
COMPENSATION ACT, AGAINST THE JUDGMENT AND
AWARD DATED: 18/12/2017, PASSED IN E.C.A.
NO.53/2016, ON THE FILE OF THE IX ADDITIONAL SMALL
CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL
CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7),
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MFA No. 1096 of 2018
C/W MFA No. 3794 of 2018
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the award passed in E.C.A.No.53/2016
dated 18.12.2017 both the insurance company and the
workmen are before this court. The appeal filed by
workmen seeking enhancement of compensation is
MFA.No.3794 of 2018 and appeal field by the insurance
company is MFA.No.1096/2018.
2. The claim petition is filed under section 22 of
the Employees Compensation Act, 1923. It is the case of
the claimant that he was working as a driver in a tempo
and receiving a salary of an amount of Rs.12,000/- per
month and Rs.200/- bata per day. On 11.12.2015 at
about 1.30 a.m. while he was driving the tempo traveler,
at that time, a unknown lorry has dashed to the tempo
and he had sustained the injuries. He sustained fracture
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of medial malleolus of left, left fibula distal 1/3rd fracture
and other grievous injuries all over the body.
3. The doctor was examined and as per the doctor
he had sustained 37% disability to left lower limb and to
the whole body at 19%. As per the doctor, there is pain
and difficulty in walking and climbing stairs. He has
inability to squat and sit cross legged. On examination,
the doctor found that the claimant walks with pain an
limping, wasting of (left) lower limb is seen, Surgical scars
are seen over (left) leg and ankle and assessed the whole
body disability at 19%. When it comes to the salary, the
court below had observed that except marking the salary
certificate no other evidence is adduced and no one is
examined. The court below had considered an amount of
Rs.9,000/- as income and 60% of it i.e., Rs.5,400/-
(Rs.5,400/- x 205.95 x 60/100= Rs.6,67,278/-) and
taking 60% of granted compensation of an amount of
Rs.6,67,278/- and towards medical bills an amount of
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Rs.13,180/- was granted and towards conveyance granted
an amount of Rs.10,000/-. Altogether compensation of an
amount of Rs.6,90,458/- was granted by the Tribunal.
4. Learned counsel for the insurance company
submits that there is no employer employee relationship,
as such he is not entitled to pay compensation and cannot
maintain the application. It is submitted that when there
is no evidence placed except filing the salary certificate,
when he has failed to adduce any other evidence, the
court ought not to have taken an amount of Rs.9,000/- as
income. As per the notification Rs.8,000/- to be taken as
notional income. It further submitted that when the
doctor had deposed that 19% is the whole body disability,
the court below has taken 60% as disability and granting
the compensation which is on the higher side and
exorbitant. He submits that under the Employee's
Compensation Act, 1923 there is no component of
compensation for conveyance, the court below without any
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basis had granted an amount of Rs.10,000/-. It is
submitted that the compensation that was awarded by the
Tribunal is on the higher side. Further as there is no
employer employee relationship, the court below ought
not to have entertained the application.
5. Learned counsel for the employee submits that
he is working with the Respondent No.1 as driver and he
has been paid an amount of Rs.12,000/- salary. He
submits that he had also filed the salary certificate as
Ex.P-10 that itself is sufficient to show his income. When
his income is Rs.12,000/- the court ought not to have
considered Rs.9,000/- as income which is on the lower
side. He submits that because of the injuries sustained by
him, he is not in a position to do the job which amounts to
100% disability. Even the percentage of disability i.e.,
considered by the court below is on the lower side. He has
relied on the judgment of Division Bench of this Court in
the case of New India Assurance Co. Ltd -Vs- B. Raju
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@Battaiah wherein the Division Bench of this court has
altered the Judgment of the Commissioner and same is
found fault by the Hon'ble Apex Court in the case of B.
Raju @Battaiah -Vs- New India Assurance Co. Ltd.,
and another. Relying on these judgments, the learned
counsel submits that the disability ought to have been
taken 100% and further the income should have been
taken at Rs.12,000/- per month.
6. Having heard the learned counsel on either
side, perused the entire material on record. First
contention of the learned counsel for the insurance
company that there is no employer employee relationship
has no legs to stand. As per the statement of owner of
the offending vehicle, as per Ex.P-8 statement of
Respondent No.1, it is clear that on 11.12.2015, the driver
was in the vehicle belonging to Respondent No.1, he was
employed by the Respondent No.1 as on the date of the
accident and the stand of insurance company that there is
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no employer employee relationship, no contra evidence is
placed before the Court. The court below had rightly
considered the evidence and held that he is engaged as
driver by Respondent No.1.
7. Then coming to the salary, as per the
notification issued by Karnataka State Legal Services
Authority the income is taken at an amount of Rs.8,000/-.
If the claimant prove before the court that he is earning an
amount of Rs.12,000/-, no doubt that it has to be taken
into consideration. In this case, except marking the salary
certificate, no one is examined and no other supporting
evidence is placed. The court below went wrong in taking
an amount of Rs.9,000/- as income and this court is
inclined to take an amount of Rs.8,000/- as income as per
the notification. Then coming to the disability, this court
has perused the evidence of the doctor and as per the
evidence of the doctor, the fractures are united and
whatever the observations of the doctor, it would not to
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continue the occupation as driver, it would not come in his
way. Even as per the doctor, it is 19% disability. The
court below without any basis had taken 60% as disability
and this court is taking disability at 19%. 60% of
Rs.8,000/- is Rs.4,800/-. This court is granting an
amount of Rs.1,87,826/- under the head of loss of
future income (Rs.4,800/- x 19 x 205.95= Rs.1,87,826/-
). Under the head of medical expenses, the court below
had granted an amount of Rs.13,180/- and no
interference is called for. The court below had granted an
amount of Rs.10,000/- under the head of conveyance,
which the employee is not entitled. In view of the above
discussion altogether the claimant is entitled for
compensation of an amount of Rs.2,01,006/-.
8. The claimant is entitled for compensation under
the following heads:
Sl. Description of Items Compensation
Awarded
No.
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1. Loss of future income Rs. 1,87,826/-
2. Medical Expenses Rs. 13,180/-
Total Rs. 2,01,006/-
9. Accordingly appeal of the Workmen-claimant in
MFA.No.3794/2018 is Dismissed and appeal of the
insurance company in MFA.No.1096/2018 is Allowed-in-
part by reducing the compensation from an amount of
Rs.6,90,458/- to Rs.2,01,000/- at 12% interest.
(a) The compensation amount shall carry
interest @ 12% per annum from the date
of petition, till the date of realization.
(b) Respondent-Insurance Company shall
deposit the said compensation amount
with accrued interest before the tribunal
within a period of 8 (Eight) weeks.
(c) The amount in deposit shall be forthwith
transferred to the court below. Any
excess amount is deposited, the insurance
company is at liberty to withdraw the
same.
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(d) The Registry is directed to return the Trial
Court Record to the Tribunal along with
the certified copy of the order passed by
this court forthwith without any delay.
(e) No Costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
TS
