Karnataka High Court
Javid Jafar vs Prasad S Amin on 28 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24150
MFA No. 276 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 276 OF 2021 (ECA)
BETWEEN:
JAVID JAFAR
AGED ABOUT 28 YEARS,
S/O ABOOBAKKAR, R/O D.NO.8A,
GL-18-8TH BLOCK, KATIPALLA,
KRISHNAPURA, MANGALORE - 574 142.
...APPELLANT
(BY SMT. SWATI G. HEGDE, ADVOCATE FOR
SRI. H. PAVANA CHANDRA SHETTY, ADVOCATE)
AND:
1. PRASAD S. AMIN
AGED ABOUT 38 YEARS,
S/O SUNDAR P. AMIN,
R/O H. NO.8-72 (2), "ASHACHAYA",
MOODUBAILU HOUSE POST KADEKAR,
UDUPI TALUK AND DISTRICT - 576 101.
Digitally signed by
VEDAVATHI A K
Location: High
2. M/S UNITED INDIA INSURANCE COMPANY LTD.,
Court of Karnataka DIVISIONAL MANAGER,
DIVISIONAL OFFICE, JEWEL PLAZA,
1ST FLOOR, MARUTHI VEETHIKA ROAD,
UDUPI TALUK AND DISTRICT - 576 101.
...RESPONDENTS
(BY SRI. M.U. POONACHA, ADVOCATE FOR R2;
VIDE ORDER DATED:8/3/2021, NOTICE TO R1 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF EMPLOYEE COMPENSATION ACT AGAINST
THE JUDGMENT AND AWARD DATED 04.10.2019 PASSED IN
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MFA No. 276 of 2021
ECA NO. 05/2017 ON THE FILE OF THE COMMISSIONER FOR
EMPLOYEES COMPENSATION AND THE LABOUR OFFICER,
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section 30 (1)
of the Workmen's Compensation Act for enhancing the
compensation awarded by the Commissioner for Employees
Compensation and the Labour Officer, Udupi District and
Additional Senior Civil Judge, Udupi in E.C.A. 5/2017 for having
granted compensation of Rs.2,12,000/- with 12% interest vide
order dated 04.10.2019.
2. Heard the arguments of learned counsel for appellant.
3. Learned counsel for respondents remained absent.
4. The appellant was claimant and respondents were
respondents before the Tribunal.
5. The ranks of the parties before the Tribunal is retained
for the sake of convenience.
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6. The case of the petitioner is that the petitioner was a
Driver working under the 1st respondent from August 2015. On
13.03.2017, while he was driving L.M.V. goods vehicle which
belongs to 1st respondent in N.H.66, when he reached near
Tenka Yermal, he has applied sudden break to avoid the
accident. Due to which, his vehicle capsized and he has
sustained injuries and fracture and he was shifted to K.M.C.
Manipal hospital wherein he was treated as inpatient and spent
lot of amount towards the medical expenses and due to the
accident he became disable, he is unable to do the work or
drive the vehicle and he was getting salary of Rs.9000/- per
month apart from daily Bata. He is aged about 25 years.
Hence, prays for grant of compensation of Rs.16,31,012/-.
7. In pursuance of the notice, 1st respondent-employer
remained absent. 2nd respondent-Insurance Company appeared
and filed statement of objections by denying the accident,
occupation and relationship between the petitioner and the
respondent No.1 as false and contended that the petitioner is
not entitled for any compensation and hence, prayed for
dismissal of the petition.
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8. Considering other various contentions and based upon
the pleadings, the Tribunal has framed the following issues:
1. Whether the petitioner proves that he is the
employee under the 1st respondent?
2. Whether the petitioner proves that, he met with
the accident on 13.04.2017 during the course of the
employment?
3. Whether the petitioner proves that, he was
permanently disabled to continue the same nature of
work?
4. Whether respondent No.2 proves that since this
accident is due to negligence on the part of the petitioner,
the petitioner is not entitled the claim compensation under
the Employees Compensation Act?
5. Whether the respondent No.2 is liable to pay the
interest on the compensation amount?
6. Whether the petitioner is entitled for
compensation? if so, what is the quantum? From whom?
7. What award or order?
9. To prove the contentions of the petitioner, petitioner
himself examined as PW-1 and examined Dr. Kiran Acharya as
PW-2, who issued the disability certificate and got marked 22
documents and both the respondents have not examined any
witnesses but has produced insurance policy as Ex.R.1.
10. After hearing the arguments, the Tribunal has
answered issue Nos.1, 2 and 5 in the Affirmative and issue
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No.3 partly in the Affirmative and issue No.4 in the Negative.
Accordingly, allowed the petition in-part by granting
compensation of Rs.2,12,000/-, which is under challenge by the
claimant.
11. The learned counsel for the appellant/claimant has
contended that the Tribunal has committed an error in taking
9% disability even though doctor has assessed 18% disability
to the whole body and the earning capacity should be
considered at 100% and the Tribunal is not justified in
recording a finding that the claimant is not entitled for
compensation under other heads and the amount of
compensation granted is very meager, which is contrary to the
law and considering meager percentage than the percentage
mentioned at disability certificate issued by the Doctor is as
against the provisions of Section 4(1)(c) of the Employees
Compensation Act. Therefore, prayed for allowing the appeal.
12. Per contra learned counsel for the respondents
remained absent.
13. After hearing the arguments, the substantial
questions of law that arises for this Court is as under:-
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1. Whether the finding of Tribunal in computing
earning capacity of the claimant is in accordance
with Section 4(1)(C) of the Act?
2. Whether the findings of the Tribunal in respect of
age, loss of earning capacity, future medical
expenses are based upon the material placed
before the Court?
3. Whether the Tribunal has justified in granting the
compensation awarded in favour of the claimant
is just compensation which requires
enhancement?
14. After considering the arguments and perusing the
material on record, it reveals that the petitioner/appellant was
a driver, working under respondent No.1 in the light motor
goods vehicle. The 1st respondent is placed as an ex-parte.
The respondent No.2 has denied the relationship of the
petitioner with respondent No.1. However, the respondent No.2
has not led any evidence to disprove the case of the appellant.
15. Now, the only question as per the learned counsel for
the appellant is that Doctor, who is examined by the
petitioner/claimant as PW-2, has assessed disability at 18% to
the whole body. As per the evidence of doctor, the claimant
working as a Driver is unable to drive the vehicle as he was
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driving prior to the accident. Therefore, there is a partial
permanent functional disability of the appellant/petitioner.
Therefore, considering 9% as against 18% of the disability is
very meager.
16. Learned counsel for the appellant has also relied upon
the judgment of the Hon'ble Apex Court in the case of Indra
Bai Vs. Oriental Insurance Company Ltd., and another
reported (2023) 8 SCC 217.
17. On perusal of the evidence on record especially
Ex.P5-Wound Certificate and Ex.P17 Discharge summary and
Ex.P18 Treatment and Disability Certificate where the doctor
has opined that due petitioner/claimant has suffered the
fracture of left radius fracture and left elbow dislocation and the
doctor has categorically held there was a disability of 18% to
the whole body. He has assessed various disability regarding
each of the injury and it is also stated that for additional
weightage, patient may experience mild pain over left knee
interfering with functions of long driving due to patellofemoral
arthritis, which is measured 3%.
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18. Considering the same, the Tribunal has considered
only 9% of disability by ignoring the evidence of the Doctor as
well as the provisions of Section 4(1) (c) of the Employees
Compensation Act. Section 4(1) (c) of the Act reads as under:
"In the case of an injury specified in Part II of
Schedule I, such percentage of the compensation
which would have been payable in the case of
permanent total disablement as is specified therein
as being the percentage of the loss of earning
capacity caused by that injury and in the case of an
injury not specified in Schedule I, such percentage
of the compensation payable in the case of
permanent total disablement as is proportionate to
the loss of earning capacity (as assessed by the
qualified medical practitioner) permanently caused
by the injury".
19. In the present case, the Tribunal without assigning
any proper reasons has reduced the disability assessed by the
Doctor at 9% as done in the Motor Vehicle Accident cases by
considering 1/3rd of the disability. But, in case of Workmen's
Compensation Act, the disability which is not specified in the
schedule 1 of the Workmen Compensation's Act then the
disability given by the doctor shall be considered where the
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Doctor has given 18%. However, the Doctor himself given
evidence that the petitioner cannot drive the vehicle as usual as
he was driving earlier and he may get pain on the hand.
20. Though the learned counsel for the appellant has
relied upon the judgment of the Hon'ble Supreme Court in the
case stated supra, where Hon'ble Supreme Court has applied
the computation of compensation awarded by the Tribunal to
the extent of 100% where the High Court has reduced to 30%.
In the said case, the claimant was a coolie worker who used to
unload and load the goods in a Truck and the medical board
has given certificate that he is totally unfit and he cannot lift or
do the physical work at all. Therefore, the Supreme Court has
considered 100% loss of income and 100% disability for the
purpose of earning capacity. But, in the present case, the bone
was united and it is only left hand and the Doctor has not
stated he was totally disabled for driving any vehicle. He has
stated that only there is difficult in driving the vehicle and he
cannot drive as he was driving, prior to the accident.
21. Therefore, looking into the facts and circumstances of
the case, 18% of disability cannot be considered and it required
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some more enhancement. Therefore, I proceed to considered
25% of disability for computing compensation towards 'loss of
earning capacity' instead of 9% considered by the Tribunal.
22. The Petitioner has also not produced any document to
prove that he was working as a Driver and getting salary. Even
though the drivers are entitled for Bata in each trip, but no
documents are produced. The Minimum Wages Act, 1948
provides Rs.8000/- per month. The same is taken by the
Tribunal. The petitioner is a Driver, which is not in dispute.
Such being the case, there must be some extra amount
payable to the Driver which is called as Bata per day. Though
the claimant stated that he was getting Rs.100/- Bata per day
but the respondent No.1 has not produced any evidence or
documents. Therefore, in the absence of any documents, the
petitioner being Driver definitely he is entitled for Bata, atleast
Rs.1000/- per month. Therefore, it is considered as Rs.8000/-
+ 1000/- = 9000/- per month as income and 60% considered
as Rs.5,400/- same is multiplied to 25% equal to
1,350/- x 215.28 it comes to Rs.2,90,628/- issued to the loss
of further income.
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23. As regard to the medical expenses, the Tribunal has
awarded Rs.56,612/-. The same is kept intact.
24. Towards further medical expenses, as per the
evidence of Doctor, he requires further treatment for removing
the implants in the hand. Considering the same, it is just and
proper to award compensation of Rs.30,000/- towards 'future
medical expenses'.
25. Accordingly, the appellant is entitled for
compensation as under:-
Heads Amount in Rs.
Loss of earning capacity 2,90,628-00
Medical expenses 56,612-00
Future medical expenses 30,000-00
TOTAL 3,77,240-00
26. Accordingly, the Tribunal has committed an error in
considering 9% of disability and not properly appreciated the
evidence on record in granting compensation towards 'loss of
earning capacity'. Therefore, the same is liable to be interfered
with and the appellant is entitled for compensation of
Rs.3,77,240/- together with interest at the rate of 12% p.a.
Accordingly, I pass the following:-
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ORDER
i) The appeal is allowed-in-part;
ii) The appellant is entitled for compensation of
Rs.3,77,240/- as against Rs.2,12,000/- awarded by
the Tribunal together with interest at the rate of 12%
p.a from the date of petition till its realization.
Sd/-
JUDGE
VS
CT:SK
