Karnataka High Court
Mukesh Kumar vs Kulhari Tours And Travels And Anr on 3 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
NC: 2025:KHC-K:2803
MFA No. 200468 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO.200468 OF 2023 (ECA)
BETWEEN:
MUKESH KUMAR
S/O SHANKARLAL MOOND,
AGE: 32 YEARS,
OCC: DRIVER (NOW-NIL),
R/O: SINGANOOR UDAIPUR WATI,
NOW AT C.I.B COLONY, KALABURAGI.
...APPELLANT
(BY SMT. SRIDEVI J.TUPPAD, ADVOCATE)
AND:
1. KULHARI TOURS AND TRAVELS
PROF. MAHIPAL SINGH,
Digitally signed AGE: MAJOR,
by RAMESH OCC: OWNER OF SWIFT CAR
MATHAPATI
Location: HIGH ITS NO.MH-14-FC-0703,
COURT OF A-4/804 SPARKELT MEGAPOLIS,
KARNATAKA
VILLAGE-MAAN, TALUK: MULASHI,
DISTRICT: PUNE - 411 057.
2. THE BRANCH MANAGER
M/S ROYAL SUNDARAM
ALLIANCE INSURANCE CO. LTD.,
DOOR NO.3, PLOT NO.40 AND 41,
MAHANTH ARCADE MAHANTH NAGAR,
KALABURAGI - 585 102.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
V/O DATED 31.01.2023 NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 200468 of 2023
HC-KAR
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE EMPLOYEE COMPENSATION ACT, 1923,
PRAYING TO CALL FOR RECORDS AND MODIFY THE JUDGMENT
AND AWARD DATED 08.06.2022 TO ENHANCE THE
COMPENSATION RS.15,00,000/- AS PRAYED BY THE
APPELLANT HEREIN E.C.A.NO.38/2017 BY THE HON'BLE IN THE
COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE AT
KALABURAGI BY THE EMPLOYEE COMPENSATION ACT, 30(1)
1923 ALLOWING THE APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
With consent of both parties, matter is heard for final
disposal.
2. Challenging judgment and award dated 08.06.2022
passed by I Addl. Senior Civil Judge and Commissioner
Workman Compensation, Kalaburagi in ECA no.38/2017, this
appeal is filed.
3. Smt.Sridevi J. Tuppad, learned counsel for claimant
submits that claimant was employee and driver in car belonging
to respondent no.1, insured with respondent no.2, on monthly
salary of Rs.15,000/- and daily bhatta of Rs.200/-. While he
was on duty, on 04.10.2016 driving Maruti Swift car bearing
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registration no.MH-14/FC-0703 from Mumbai Airport towards
Pune city with a passenger, it met with accident near Urse
village. Immediately after accident, claimant was shifted to
Pawana hospital, Pune. He also took treatment in Ruby Hall
Clinic at Pune, Savai Manasingh Hospital at Jaipur, Neuro Care
Hospital at Jaipur, Jain Hospital at Jaipur and S.M.S. Hospital at
Jaipur, but, he did not recover fully and sustained permanent
physical disability / loss of earning capacity. Therefore, he filed
claim petition under Sections 3, 4, 10 and 22 of Employee's
Compensation Act, 1923 against employer and insurer.
4. On service of notice only insurer contested petition
denying claim averments in total. Based on pleadings Trial
Court framed issues and recorded evidence. Claimant deposed
as PW-1 and Dr.Raju Kulkarni as PW-2 and Ex.P-1 to 23 were
marked. Insurer did not lead any evidence.
5. On consideration, Tribunal held relationship of
employee, employer and insurer between claimant,
respondents no.1 and 2 as established. Occurrence of accident
in course and out of employment and claimant sustaining
permanent disability and lost earning capacity and entitled for
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compensation were established. Tribunal determined age of
claimant as 28 years and adopted applicable factor of 211.79.
Though, PW-2 issued Ex.P-16 (Disability Certificate) assessing
whole body disability as 80%, Tribunal considered loss of
earning capacity at 27% and awarded Rs.2,74,480/-. It also
awarded Rs.9,00,000/- towards medical expenses and held
insurer liable to pay same from date of accident. Learned
counsel for appellant submits that while passing impugned
judgment, only on ground that PW-2 had not treated claimant,
Tribunal slashed disability assessed by 1/3rd, which was
contrary to law, especially Ex.P-16 (Disability certificate) and
Ex.P-18 (X-ray report). Therefore, substantial question of law
about award being contrary to material available on record
arises for consideration. On said ground, sought for allowing
appeal.
6. Sri Sudharshan M, learned counsel for respondent
no.2 on other hand opposes appeal. It was submitted that
Tribunal had rightly taken note of material available on record
and awarded just compensation.
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7. Heard learned counsel, perused impugned
judgment and award and copies of deposition and exhibits
made available for perusal, by learned counsel for appellant.
8. In view of above, following substantial question of
law would arise for consideration:
"Whether compensation determined by Tribunal is
in ignorance of materials available on record,
namely Ex.P-16 and 18 and deposition of PW-2?"
9. On outset of provisions of Section 4 (1) (c) (ii) of
Employee's Compensation Act, 1923 would require assessment
of loss of earning capacity by a qualified medical practitioner
only. There is no provision in Workman Compensation Act and
Employee's Compensation Act mandating assessment of loss of
earning capacity only by doctor, who had treated workman.
There would be no bar for consideration of deposition of any
qualified medical practitioner, who would have examined
claimant and substantiates physical disability/loss of earning
capacity. In accident on hand, claimant as PW-1 deposed
about nature of injuries as well as treatment taken. He has
specifically stated that despite treatment, he had sustained
physical disability i.e. loss of sensation and grip of left arm and
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shoulder in entirety. PW-2 has corroborated same. He has
specifically stated about clinical examination and verification of
treatment records of claimant. His affidavit examination in chief
contains following:
"Records Verified:
1. Treatment Records - He was admitted multiple times
and was operated at different hospitals, he was initially
treated at Ruby hall clinic, admitted on 4.10.2016 &
discharged on 18.10.2016. fracture D6 with DAII (head
injury) with scapular fracture with multiple Rib fracture
with hemotorax was diagnosed & managed with ICD &
medications later he was admitted at Neuro care Hospital
Jaipur & than to Chirayu hospital Jaipur where left
brachial plexus injury was diagnosed fracture humerus
was operator with ORIF on 5.1.2017. Jain Hospital Jaipur
pan brachial plexus injury left upper limb was operated
with excision of deceased nerve & reconstruction with
sural nerve graft on 29.5.2017 he was operated at SMS.M
College Hospital Jaipur. Left brachial plexus injury with
infected clavicle implant was operated with implant
removal + superorey based local transposition flap.
Now he complaints of complete weakness of left upper
limb. There is Complete absences of left shoulder, left
elbow, left wrist and left hand movements, There is loss
of sensation in left upper limb. He cannot do any work
with left hand. doing daily Chores has become difficult. He
has to depend on others for this. He cannot do driver job.
Clinical Examination revealed- Gross wasting of left upper
limb muscles. Power in all gropes of muscles in left upper
limb is Zero i.e. 0/5 There is no active movements in left
shoulder, left elbow, left wrist & left hand. All functions of
left hand are lost. There is loss of sensation in left upper
limb. Left upper limb has bone flial. There is left complete
monoplegia of left upper limb.
Radiological Examination - MRI of left brachial plexus
revealed high grade injury of left brachial plexus with
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complete disruption of nerve fibers indicating high grade
postganglionic neuropraxic injury. X-ray left arm shows
malunited fracture left hunerus with implants in situ.
Above disabilities are due to post Trauma effect.
The person in a case of left upper limb complete
monoplagia with Sensory relation to involvement and has
permanent physical Impairment in relation to
Mofor system disability
Sever neurological involvement
(i.e. complete left upper limb monoplagia = 75%
Loss of sensation (Hypoartheria) = 05%
Whole body PPI: 80%
Note: In case of orthopedic physical disability, body is
divided into 3 parts upper limp, lower limb, trunk, in
principal function of one part cannot be replaced by other,
therefore each part in itself is 100% and loss of function
is also 100%. Whole body value is sum of 3 parts (sum it
by combining formula) but total value should not exceed
100% in any case."
10. In cross examination indeed, an admission is
elicited that he had not treated claimant. PW-2 has very clearly
stated that he has verified treatment records and also
examined claimant clinically and radiologically. He specifically
deposed about claimant suffering from Monoplegia i.e. paralysis
of one limb. Since, claimant is a driver by occupation and
paralysis is sustained on left arm, he would not be able to
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perform job of driver. Therefore, loss of earning capacity would
be total, though assessment of permanent physical disability is
to extent of 80%. Assessment of disability and its effect on
earning capacity by Tribunal is totally contrary to principles
enunciated by Hon'ble Supreme Court in case of Raj Kumar
vs. Ajay Kumar and Another reported in (2011) 1 SCC 343.
Therefore, substantial question of law would have to be
answered partly in affirmative. Loss of earning has to be
assessed at 100%. Computation of loss of earning would be as
follows:
Rs.8,000/- x 60% x 211.79 x 100% = Rs.10,16,592/-
11. Apart from above, Rs.9,00,000/- awarded by
Tribunal towards medical expenses is required to be added to
compensation. Total compensation is Rs.19,16,592/-.
12. Consequently, following order:
ORDER
i. Appeal is allowed in part.
ii. Claimant is held entitled for compensation of
Rs.19,16,592/-.
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iii. Respondent-insurer is liable to pay same with
interest at the rate of 12% p.a. from
04.10.2016.
Sd/-
(RAVI V HOSMANI)
JUDGE
NJ
Ct;Vk
