Karnataka High Court
Sakepathi Vonod Kumar S/O ... vs Shafi S/O Moiddin Sab on 7 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.101013 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.101013 OF 2019 (ECA)
BETWEEN:
SAKEPATHI VINOD KUMAR S/O NETTAKALLAPPA
AGE: 26 YEARS, OCC: LORRY DRIVER,
LORRY NO:KA-35/B-6472,
R/O: SUBRANAHALLI VILLAGE,
SANDUR TALUK,
PRESENTLY R/AT: HAROVANAHALLI VILLAGE,
CHILAKANAHATTI POST, HOSAPETE.
...APPELLANT
(BY SRI. M. AMAREGOUDA FOR
SMT. KEERTHI G K, ADVOCATES)
AND:
1. SHAFI S/O MOIDDIN SAB
AGE: MAJOR, OCC: OWNER OF LORRY
LORRY NO.KA-35/B-6472, R/O: 17TH WARD,
CHAPPARADAHALLI CHALUVADI ONI,
HOSAPETE-583211.
Digitally
signed by K M
SOMASHEKAR
KM
SOMASHEKAR Date:
2024.02.17
10:25:30
+0530
2. DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
STATION ROAD, HOSAPETE,
DIST: BALALRI-583201.
...RESPONDENTS
(BY SRI. R.K. BOGAR, ADVOCATE FOR R1,
MS. ANUSHA SANGAMI FOR
SRI. S.K. KAYAKAMATH, ADVOCATES FOR R2)
THIS MFA IS FILED U/S. 30(1) OF THE EMPLOYEES
COMPENSATION ACT 1923, AGAINST JUDGMENT AND AWARD DATED
17.12.2018, PASSED IN ECA.NO.29/2017, ON THE FILE OF ADDL.
SENIOR CIVIL JUDGE & JMFC -CUM-COMMISSIONER FOR
WORKMEN'S COMPENSATION, HOSPET, DISMISSING THE CLAIM
PETITION FILED U/S 10 OF EMPLOYEES COMPENSATION ACT 1923.
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MFA No.101013 of 2019
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of both learned counsel, matter is taken up for final
disposal.
2. The claimant is before this Court questioning the
judgment and award dated 17.12.2018 in ECA No.29/2017 on
the file of learned Addl. Senior Civil Judge and JMFC-cum-
Commissioner for Workmen's Compensation, Hospet (for short,
'Trial Court'), by which the claim petition under Section 10 of
the Employees' Compensation Act, 1923 (for short, 'Act') is
rejected.
3. Heard learned counsel Sri.M. Amaregouda for
Smt.Keerthi G.K., learned counsel for the appellant/claimant
and Ms. Anusha Sangami, leanred counsel for
Sri.S.K.Kayakamath, learned counsel for respondent-Insurance
Company and perused the appeal papers, including original
records.
4. The claimant filed a claim petition under Section 10
of the Act seeking compensation for the accidental injuries
sustained by him that occurred on 05.05.2016 involving Lorry
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bearing Registration No.KA-35/B-6472 and another lorry
bearing registration No.KA-34-A/5229. The claimant is said to
have sustained the following injuries:
a) Abrasion over right maxilla
b) Lacerated wound over right upper syplid 4x3 cm
c) Lacerated wound over left wrist 4x2 cm
d) Lacerated wound over right wrist 2x1 cm
e) Tenderness of right leg
f) Fracture of tibia on right leg
g) Abdominal blunt injuries.
It is stated that the claimant was aged about 24 years as
on the date of the accident and he was working as Driver under
respondent No.1/Owner of lorry in question and getting salary
of Rs.15,000/- per month. It is further stated that due to the
accidental injuries, the claimant is not in a position to work as
driver.
appeared through their learned counsel and filed their separate
statement of objections denying the allegations made in the
claim petition. Respondent No.1-owner of the offending lorry
admitted the relationship of employer and employee between
himself and claimant. He further admitted about involvement
of vehicle in question in the alleged accident. He contended
that lorry is covered with insurance policy issued by the
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respondent No.2. Respondent No.2-Insurane company inter-
alia contended that respondent No.1 is the owner of the
offending lorry and claimant was driver of the offending lorry,
due to negligence of the petitioner himself, the accident took
place and he sustained injuries. It is further contended that
since the accident has occurred due to negligence of the
claimant, he is not entitled for any compensation. It is also
contended that case is registered against the petitioner under
the provisions of IPC. Thus, prayed for dismissal of the claim
petition.
6. Before the trial Court, claimant examined himself as
PW1 and also examined one doctor as PW2 apart from marking
the documents as Exs.P1 to P36. Respondent No.2/Insurer
examined one witness as RW1 and got marked documents as
Ex.R1 and R2. The Trial Court based on the material evidence
on record answered issue No.1 holding that the
petitioner/claimant is an employee of respondent No.1 and
dismissed the claim petition on the ground that since the
accident occurred due to sole negligence on the part of the
petitioner, he would not be entitled for any compensation.
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7. Sri.M. Amaregouda, learned counsel for the
appellant-claimant would submit that the Trial Court committed
an error in dismissing the claim petition on the ground that the
claimant would not be entitled for compensation, since the
accident occurred due to his own negligence. It is submitted
that merely because case is registered against the petitioner
and charge sheet is filed against him, there is no other material
on record to come to a conclusion that due to negligence on the
part of the appellant, the accident took place. Further, he
submits that material on record would show that the accident in
question occurred due to negligence of other vehicles involved
in the accident. Moreover, he submits that assuming the
accident had occurred due to negligence of the
claimant/appellant, it is for the insurer to prove that it was
willful disobedience of the appellant/claimant. Learned counsel,
in support of his contention, places reliance on decision of co-
ordinate Bench of this Court in Charan G.N. Vs. Sri. Uma
Shankar & Another1. Learned counsel further submits that
the claimant was working as driver under respondent No.1 and
earning Rs.15,000/- per month. Further, learned counsel
MFA 100425/2019, 6.1.2021
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inviting attention of this Court to evidence of PW2-doctor would
submit that PW2 has deposed that claimant has suffered 30%
permanent physical disability to a particular limb. Taking
income of the appellant as Rs.15,000/- per month and
considering 30% as loss of earning capacity, the claimant
would be entitled for compensation. Thus, he prays for allowing
the appeal.
8. Per contra, Ms. Anusha Sangami, learned counsel
for Sri.S.K.Kayakamath, learned counsel for the respondent-
Insurance Company supporting the order passed by the trial
Court would submit that since the accident in question occurred
due to negligence of the claimant himself, he would not be
entitled for compensation. Further, learned counsel would
submit that the trial Court rightly placing reliance on decision of
this Court in Louis Martis Vs. Louis Korrera & Another2,
rejected the claim petition, which does not require interference
at the hands of this Court. Thus, she prays for dismissal of the
appeal.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers including the trial Court
2012 ACJ 1051
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records, the only point that would fall for consideration in this
appeal is, whether the trial Court is justified in rejecting the
claim of the appellant/claimant?
10. Our answer to the above point is in the negative for
the following reasons.
11. There is no dispute with regard to accident that
occurred on 05.05.2016 arising out of and in the course of
employment involving Lorry bearing Registration No.KA-35/B-
6472 and another lorry bearing registration No.KA-34-A/5229,
resultant injuries to the appellant/claimant. It is also not in
dispute with regard to employer and employee relationship
between respondent No.1 and appellant. The appellant is
before this Court challenging the rejection of his claim by the
trial Court on the ground that due to negligence of the
appellant, the alleged accident took place.
12. It is the case of the insurer that the jurisdictional
police have registered case against the appellant/claimant
under Sections 279, 337, 338 of IPC and filed charge sheet
holding that due to negligence of the petitioner himself, the
accident had taken place. The trial Court placing reliance on a
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decision of this Court in Louis Martis (supra) proceeded to
hold that though the petitioner/claimant proved that the
accident in question occurred out of and during the course of
employment, but due to his self negligence, he is not entitled
for any compensation.
13. Section 3 of the Act contemplates employer's
liability for compensation if there is any personal injury caused
to an employee by accident arising out of and in the course of
employment. Section 3(1) of the Act reads as under:
3. Employer's liability for compensation:-
(1) If personal injury is caused to an employee
by accident arising out of and in the course of his
employment, his employer shall be liable to pay
compensation in accordance with the provisions of
this chapter:
Provided that the employer shall not be so liable
(a) in respect of any injury which does not
result in the total or partial disablement
of the employee for a period of
exceeding three days;
(b) in respect of any injury, not resulting in
death or permanent total disablement
caused by an accident which is directly
attributable to-
(i) the employee having been at the
time thereof under the influence of
drink or drugs, or
(ii) the willful disobedience of the
employee to an order expressly
given, or to a rule expressly framed,
for the purpose of securing the safety
of employees, or
(iii) the willful removal or disregard by
the employee of any safety guard or
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other device which he knew to have
been provided for the purpose of
securing the safety of employee.
14. The object of Employees' Compensation Act, 2023
is to make the employer responsible to compensate the loss
caused by the injuries or death on account of act which arises
out of and in the course of employment. The Act is social
welfare legislation and is framed for providing social security to
protect the workman/employee during hard times. The liability
of the employer's to pay compensation is governed by the
conditions stipulated in the proviso to Section 3(1) of the Act.
15. It is not the case of the respondent/insurer that the
appellant was under the influence of alcohol or drug or there is
willful disobedience. In the instant case, as stated by the
appellant, due to bad condition of the road, he could not control
the vehicle, which resulted in the accident in question. Even if
there is negligence on the part of the appellant/claimant for
causing the accident, such negligence cannot disentitle him
from seeking compensation under the Act. There is always
difference between 'negligence' and willful disobedience'. The
negligence may be attributed depending on the degree of care
or standard of care to be taken. If the accident has occurred
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due to the negligence, it cannot be said that there is willful
disobedience. A co-ordinate Bench of this Court in the case of
Charan G.N. (supra) with regard to negligence and willful
disobedience has observed at paragraph-16 of its judgment as
under:
16. Mere negligence of the workman cannot be
regarded as willful disobedience by the workman,
"willful disobedience" presupposes a conscious
action, whereas thing said to be occurred by
negligence cannot presupposes a conscious action if
an accident is occurred in a spur of moment.
Therefore, there is always difference between these
two words 'willful disobedience' and 'negligence'.
The willful disobedience is the term which is
primary and basic ingredient of such an offence
which is apparent from the definition itself.
16. In the present case, admittedly, there is no willful
disobedience on the part of the appellant/claimant, however,
there might be some negligence on the part of the
appellant/employee himself. Such negligence itself cannot
disallow him to claim compensation. Therefore, we are of the
view that the finding recorded by the trial Court while rejecting
the claim petition that due to negligence on the part of the
petitioner, the accident took place, is unsustainable and same
is liable to set-aside. Accordingly, it is set-aside.
17. The next aspect is with regard to determination of
quantum of compensation. It is the contention of the appellant-
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claimant that he being a driver of the lorry earning Rs.15,000/-
per month. To substantiate the said contention, the claimant
has not produced any cogent or acceptable document. Central
Government has brought an amendment to the Act w.e.f.
31.5.2010 insofar as fixing the maximum notional income from
Rs.4,000/- to Rs.8,000/-. In the absence of any material on
record to establish the avocation and earning, taking note of
the amendment brought by the Central Government for
enhancing the maximum notional income from Rs.4,000/- to
Rs.8,000/-, we are of the view that it is just and appropriate to
fix the notional income of the appellant/claimant at Rs.8,000/-
per month.
18. Nextly, with regard to loss of earning capacity of
the appellant/claimant due to accidental injuries. As per Ex.P8-
wound certificate, the claimant has sustained abrasion over
right maxilla, lacerated wound over left and right wrist,
abdominal blunt injury and also fracture of right tibia. PW2-
Doctor in his evidence has categorically deposed that on clinical
and radiological examination, it is found that the
appellant/claimant sustained permanent functional disability to
an extent of 30%. 1/3rd of which would be the loss to his
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earning capacity. Thus, taking note of Ex.P8 and the evidence
of PW2, we are of the view that the appellant has sustained
permanent physical disability to an extent of 10% to the whole
body, which would be his loss of earning capacity. There is no
dispute with regard to age of the claimant i.e., 24 years as on
the date of the accident. The relevant factor that is applicable
to the age of the deceased is 218.47. Thus, the claimant would
be entitled for compensation of Rs.1,04,866/- (Rs.8,000 x
60/100 x 218.47 x 10/100).
19. The claimant has produced medical bills to an
extent of Rs.11,441/-. Taking note of the same, it is just and
appropriate to award a sum of Rs.11,441/- towards medical
expenses. Thus, the claimant would be entitled to total
compensation of Rs.1,16,307/-.
20. Respondent No.2/Insurer is liable to pay entire
compensation amount along with interest at the rate of 12%
per annum with effect from one month from the date of award.
21. In the result, we pass the following:
ORDER
a) The above appeal is allowed.
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b) The impugned judgment and award of the
Trial Court dismissing the claim petition is
set-aside.
c) The appellant/claimant would be entitled to
total compensation of Rs.1,16,307/- with
interest at the rate of 12% per annum with
effect from one month from the date of
award.
d) The respondent-Insurance Company shall
deposit the entire compensation amount
with accrued interest before the Trial Court
within six weeks from the date of receipt of
certified copy of this judgment.
e) On such deposit, the entire compensation
amount shall be released in favour of the
appellant/claimant.
f) Registry to transmit the TCR to the trial
Court forthwith
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
