Karnataka High Court
Shamsheer vs Divisional Controller on 8 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:5437
MFA No. 8910 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 8910 OF 2017 (WC)
BETWEEN:
SHAMSHEER,
S/O. AMEER JOHAN SAHEEB,
AGED ABOUT 60 YEARS,
RTD. ASST. ARTISAN, KSRTC,
TIPPU NAGARA, 2ND CROSS,
NEAR BILAL MASJID,
CHIKKAMAGALURU - 577 101.
...APPELLANT
(BY SRI. GIRISH B BALADARE, ADVOCATE)
AND:
DIVISIONAL CONTROLLER,
KSRTC DEPOT,
CHIKKAMAGALURU DIVISION,
Digitally signed by JAI
CHIKKAMAGALUR POST - 577 101.
JYOTHI J
Location: HIGH COURT ...RESPONDENT
OF KARNATAKA
(BY SMT. VIJAYALAKSHMI K., ADVOCATE FOR
SRI. G. SHANKAR GOUD, ADVOCATE)
THIS MFA IS FILED U/S 30(1) OF THE WORKMEN'S
COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD
DATED:01.08.2017 PASSED ON ECA NO.232/2014 ON THE FILE
OF THE 2ND ADDITIONAL & SENIOR CIVIL JUDGE & JMFC,
CHIKKAMAGALURU, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 8910 of 2017
JUDGMENT
This appeal is filed by the claimant challenging the
judgment and award dated 01.08.2017, passed by the II
Additional Senior Civil Judge and JMFC, at
Chikkamagaluru, in ECA No.232/2014, being aggrieved by
the dismissal of the petition.
2. The factum of accident out of employment and
injuries sustained by the claimant are not in dispute.
There is delay of 12 years in filing the claim petition.
3. Heard the arguments of both sides and perused
the records.
4. Learned counsel for the appellant - claimant
submitted that though there is delay of 12 years in filing
the claim petition but that alone is not a ground to decide
the claim petition when the respondent themselves
admitted that there was an accident and the claimant has
sustained injuries out of and in the course of employment.
Since claimant has sustained 100% functional disability
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and has not at all moved out of the house and when the
entire life of the claimant became miserable and found
difficulty to maintain family, quite naturally he has
preferred the claim petition is belated and that could have
been considered magnanimously by the Tribunal but the
Tribunal has dismissed the claim petition. Therefore,
prays to allow the appeal and to award compensation.
5. On the other hand, learned counsel for the
respondent - KSRTC submitted that there is enormous
delay of 12 years in preferring the claim petition and there
is no proper explanation offered for delay and thus, the
Tribunal is justified in dismissing the claim petition and
placed reliance on the following judgments:-
i. Judgment of Hon'ble Supreme Court in the case
of Majji Sannemma @ Sanyasirao vs. Reddy
Sridevi and others in Civil Appeal No.7696/2021
dated 16.12.2021;
ii. Judgment of this Court in the case of Divisional
Controller, BMTC vs. M. Shivashankar in MFA
No.8302/2017 dated 17.11.2022.
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6. It is the case of the claimant that he was working
as Assistant Artisan in the respondent - KSRTC
Corporation, Chikkamagaluru Depot and on 09.07.2000 at
about 3.00 p.m., when he was doing docking work in
respect of the vehicle bearing Reg.No.KA-13-F-373 under
the instructions of the respondent - KSRTC, at that time,
the driver of the KSRTC Bus bearing Reg.No.KA-13-F-488
dashed against the docking vehicle in which, the claimant
was working. Due to which, the claimant has sustained
grievous injuries of fracture to left leg and also fracture
sacrum. Due to which, the claimant has sustained 100%
disability. The medical evidence on record at Exs.P.6 to
49 - Medical records prove that the claimant has sustained
injuries in the accident as above stated and the same is
reflected in the medical records. Exs.P.1 to 5 are the
communication with KSRTC Depot with regard to the
voluntary retirement of the claimant. As the claimant has
suffered sacrum fracture and was unable to continue to
work, he was constrained to take voluntary retirement and
this is proved by the documents of the respondent -
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KSRTC itself. The respondent - KSRTC has given
employment to the wife of the claimant on the
compassionate ground on the reason that since claimant
has sustained employmental injuries out of and in the
course of employment as discussed above and became
100% disability. Therefore, factum of accident, injuries
sustained by the claimant and he sustained 100%
disability due to sacrum fracture are not at all disputed
and thus, they are proved.
7. There is a delay of 12 years in filing the claim
petition before the learned Commissioner. The Tribunal
has dismissed the claim petition only on the ground of
delay of 12 years in preferring the claim petition. As per
provisions of the Employee's Compensation Act, 1923
(hereinafter referred to as 'EC Act' for short), the
limitation period is two years to file claim petition from the
date of the accident. It is true that the claim petition
ought to have been filed within the limitation period but in
the present case, the delay has to be considered on its
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realistic way and has to ascertain what are the reasons for
delay in filing the claim petition and that delay is
deliberate or not has to be examined.
8. In the present case, the reason for delay in filing
the claim petition is that the claimant had sustained
severe disability of 100% since he has suffered sacrum
fracture and fracture to left leg and is unable to move out
of the house and took voluntary retirement from KSRTC
Depot as he has confined to bed. Therefore, visualizing
this aspect, after accident, the life of the claimant as well
as his family members was put into peril and when they
were in such a miserable position, it was not possible for
the claimant to take legal assistance from the advocate to
file the claim petition nor he was able to approach the
Commissioner requesting his claim. When this was the
plight of the claimant, who was in miserable position
struggling in life for survival, it is quite natural that there
was delay in preferring the claim petition and that cannot
be a ground for dismissing the claim petition. Therefore,
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the delay in preferring claim petition ought to have been
condoned and entertain the claim petition filed by the
claimant and to award compensation.
9. It is proved that the claimant had suffered injuries
out of and in the course of employment when he was
doing docking work in the KSRTC Depot on 09.07.2000
and due to sacrum fracture, the nervous system of the
claimant is severely affected as it is proved from the
medical records that claimant is bed ridden and suffered
100% functional disability. Further, the wife of the
claimant was given employment on compassionate ground
as claimant has become a living dead person. In this way,
the respondent - KSRTC has shown magnanimous way
towards the claimant by providing employment to his wife.
But, at the same time, the respondent - KSRTC ought to
have given compensation under the EC Act. Therefore,
the claimant is constrained to file claim petition for
claiming compensation.
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10. Just providing employment on the compassionate
ground is not the reason for denying compensation to the
claimant, who has sustained injuries out of and in the
course of employment. Therefore, for the reasons stated
supra, the claimant is entitled for compensation under the
EC Act. But the statutory interest can be given from the
date of the petition since there is delay of 12 years in
preferring the claim petition. From the medical evidence,
it is proved that claimant has suffered 100% functional
disability. The accident has occurred on 09.07.2000. As
per Central notification issued by virtue of Section 4 (1)
(b) of the EC Act, monthly wage of the claimant is
considered as Rs.2,000/- per month. The claimant was
aged about 44 years at the time of the accident.
Therefore, the relevant factor applicable is 172.52.
Accordingly, the loss of dependency is hereby re-
assessed and quantified as under:
Rs.2,000 x 60% x 172.52 = Rs.2,07,024/-
Accordingly, a sum of Rs.2,07,024/- is awarded
under the head 'loss of earning capacity due to disability'.
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11. The claimant is entitled to total compensation of
Rs.2,07,024/- with interest at the rate of 12% p.a., from
the date of petition till realization. Accordingly, I proceed
to pass the following:
ORDER
i. The appeal is hereby allowed.
ii. The judgment and award passed by the II Additional
Sr. Civil Judge and JMFC at Chikkamagaluru in
E.C.A.No.232/2014 dated 01.08.2017 is hereby set
aside holding that the claimant is entitled for
compensation of Rs.2,07,024/- with interest @
12% p.a., from the date of petition till its realization.
iii. Costs made easy.
iv. Ordered accordingly.
Sd/-
JUDGE
MH/-
CT:SNN
