Kerala High Court
Bajaj Allianz Insurance Co.Ltd vs C .Sivaraj on 7 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
MFA (ECC) NO. 28 OF 2023
AGAINST THE ORDER DATED 28.03.2022 IN ECC NO.29 OF 2014 OF
COMMISSIONER FOR EMPLOYEES COMPENSATION, (INDUSTRIAL
TRIBUNAL, PALAKKAD
APPELLANT/2ND OPPOSITE PARTY:
BAJAJ ALLIANZ INSURANCE CO.LTD
DOOR NO. 11, PEOPLES PARK, 3RD FLOOR, GOVT. ARTS
COLLEGE ROAD, COIMBATORE-641018 , REPRESENTED BY ITS
SENIOR LEGAL EXECUTIVE, 3RD FLOOR, COASTAL CHAMBERS,
RAVIPURAM, KOCHI, PIN - 682026
BY ADVS.
GEORGE A.CHERIAN
LATHA SUSAN CHERIAN
GEORGE CHERIAN (SR.)
RESPONDENTS/APPLICANT & 1ST OPPOSITE PARTY:
1 C .SIVARAJ
S/O CHINNARAJ GOUNDER, "BINDU" , KOVILPALAYAM,
PUDUSSERY. P.O., PALAKKAD, PIN - 678623
2 MANAGING DIRECTOR
SEPR REFRACTORIES INDIA LIMITED, KTC JUNCTION,
KANJIKODE, PALAKKAD., PIN - 678621
BY ADVS.
THAREEQ ANVER K
P.K.MOHANAN(PALAKKAD)(K/174/1987)
THIS MFA (ECC) HAVING COME UP FOR HEARING ON 29.05.2024,
THE COURT ON 07.06.2024 DELIVERED THE FOLLOWING:
2
M.F.A (ECC) No.28/2023
G.GIRISH, J.
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M.F.A (ECC) No.28 of 2023
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Dated this the 7th day of June, 2024
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JUDGMENT
The 2nd respondent insurance company in E.C.C.No.28/2014
of the files of the Court of Employee's Compensation
Commissioner (Industrial Tribunal), Palakkad, is the appellant in
this case. The order under challenge is one dated 28.03.2022
awarding a compensation of Rs.91,854/- with interest @ 12% per
annum to the 1st respondent herein who sustained injury to his
right knee during the course of employment under the 2nd
respondent.
2. It is stated that the 1st respondent, who was a
workman in the manufacturing unit of the 2nd respondent, was hit
on his right knee with a mould and its case while pushing the
conveyor, at about 10 a.m on 02.07.2007, while working in the
shift from 8 a.m to 4 p.m. The 1st respondent was immediately
taken to R.V.Clinic, Palakkad and administered treatment there.
From 06.07.2007 to 11.07.2007, he was said to have been
admitted in that hospital and undergone treatment for severe
contusion injury on the right knee. According to the 1st
respondent, the pain and disability due to the above injury
subsisted, though he resumed duty at the establishment of the 2nd
respondent. On 10.03.2010, the 1st respondent is said to have
approached Kovai Medical Centre, Coimbatore for the treatment
of the aforesaid injury which continued to trouble him with pain
and sufferings. In the above hospital, the 1st respondent is said
to have undergone reconstruction using PTB auto graft and partial
meniscectomy of the lateral meniscus of right knee joint on
25.03.2010. He is said to have remained in that hospital as in-
patient from 25.03.2010 to 29.03.2010 related to the above
surgery. The medical bills related to the said treatment are said
to have been met by the 2nd respondent. In the application filed
before the Employee's Compensation Commissioner, Palakkad, the
1st respondent claimed a total compensation of Rs.1,66,366/- on
the basis of a contention that he was drawing monthly wages to
the tune of Rs.17,000/-.
3. The 2nd respondent, in his written statement filed
before the trial court, admitted the employer-employee
relationship with the 1st respondent, as well as the injuries
sustained by the 1st respondent in an accident during the course
of employment on 02.07.2007. According to the 2nd respondent,
treatment was provided to the 1st respondent as per the
company's medical scheme. However, the 2nd respondent
disputed the contention of the 1st respondent about the
persistence of the injury and pain leading to the surgery and
treatment at Kovai Medical Centre, Coimbatore. According to the
2nd respondent, if at all the 1st respondent had undergone any
such treatment, it could only be due to any ailment which is not
related to the accident occurred on 02.07.2007. The 2nd
respondent also contended that the monthly wages of the 1st
respondent during 2007 was only Rs.11,901/-, and that he did not
suffer any disability due to the accident which occurred on
02.07.2007. The 1st respondent is said to be working in the
company of the 2nd respondent and showing the same level of
performance as earlier. According to the 2nd respondent, if at all
the 1st respondent is entitled for any compensation, it has to be
paid by the appellant insurance company.
4. The appellant insurance company filed written
statement before the Employee's Compensation Commissioner
denying the employer-employee relationship between the 1st and
2nd respondents, and also the contention of the 1st respondent
about the accident sustained during the course of employment
with the 2nd respondent. The appellant further disputed the
monthly wages of the 1st respondent and the disability said to have
been sustained as a result of the accident.
5. Before the learned Employee's Compensation
Commissioner, the 1st respondent and one witness were examined
as AW1 and AW2 and 11 documents marked as Exts.A1 to A11.
The medical examination report of the 1st respondent, issued by
the Medical Board of District Hospital, Palakkad, was marked as
Ext.X1. The respondent No.2 and the appellant did not choose to
adduce any evidence before the trial court.
6. After hearing all the parties, and after having an
evaluation of the evidence adduced, the learned Employee's
Compensation Commissioner fixed the compensation amount due
to the 1st respondent at Rs.91,854/-. Interest @ 12% per annum
with effect from 02.07.2007 was also awarded. The appellant
insurance company was mulcted with the liability to pay the
aforesaid amount to the 1st respondent.
7. In the present appeal, the appellant insurance
company would contend that the power and authority of the
Employee's Compensation Commissioner to award compensation
to the 1st respondent for the minor injuries sustained in the year
2007 which were said to have been treated in the year 2010, and
the fixing of loss of earning capacity at 25% as against 12%
assessed by the Medical Board, are the substantial questions of
law to be considered. It is also stated that the award of interest
for the compensation amount is beyond the scope of the
Workmen's compensation policy.
8. Heard the learned counsel for the appellant and the
learned counsel for the 1st respondent.
9. The challenge in this appeal is mainly pointed against
the award of compensation to the 1st respondent for the injury
suffered by him in the year 2007, by placing reliance on the
evidence relating to the treatment undergone by him in the year
2010. According to the learned counsel for the appellant, the
Employee's Compensation Commissioner went wrong in relying on
the evidence pertaining to the treatment undergone by the 1 st
respondent for the complaints of his right knee in the year 2010,
to arrive at the conclusion about the disability said to have been
suffered in the accident which occurred in the year 2007.
However, a reading of the impugned order of the learned
Employee's Compensation Commissioner would reveal that he
arrived at the finding in the above regard by rightly appreciating
the evidence tendered by the 1st respondent as AW1 in the context
of the medical records marked as Exts.A1 to A3. Ext.A1 treatment
certificate dated 20.05.2010 would disclose the treatment
administered to the 1st respondent at the time when he attended
R.V.Clinic and Hospital, Palakkad at about 10.40 a.m on
02.07.2007 with the complaint of right knee pain following the
trauma sustained while working in the establishment of the 2 nd
respondent. As per the above treatment certificate, the 1st
respondent was seen in the O.P department on 06.07.2007 and
11.07.2007, and his condition had improved. Thereafter, the 1st
respondent is stated to have gone for native treatment and oil
massage before his return after four months with internal
derangement of right knee with quadriceps muscles. It is also
stated in the said certificate that the 1st respondent did not turn
up thereafter. Exts.A2 and A3 are medical records issued by the
Kovai Medical Centre and Hospital, Coimbatore pertaining to the
treatment administered there to the 1st respondent for the
complaint of his right knee joint. There is absolutely no illegality
or perversity in the course adopted by the learned Employee's
Compensation Commissioner by relying on the evidence of AW1
and the documents marked as Exts.A1 to A3 towards arriving at
the finding that the treatment undergone by the 1st respondent in
the year 2010 for his right knee complaint was in connection with
the injury sustained by him in the accident occurred on
02.07.2007 during the course of employment with the 2nd
respondent.
9. The next challenge in this appeal is against the fixing
of loss of earning capacity of the 1st respondent as 25%, and the
calculation of compensation on the basis of the above finding. The
learned counsel for the appellant would contend that the trial court
overstepped the finding of the Medical Board about the disability
of the 1st respondent as 12%, and fixed the compensation
assuming 25% loss of earning capacity without any basis. It is
not possible to accept the argument advanced by the learned
counsel for the appellant in the above regard since it is clear from
Ext.X1 medical report issued by the special Medical Board
consisting of an orthopaedic consultant, physician and the
Superintendent of District Hospital, Palakkad that the loss of
earning capacity of the 1st respondent is 25%, though the
disability assessed as whole body is 12%. It is not possible to
doubt the veracity of the finding of the special Medical Board in
the above regard in the absence of any reliable material to the
contra.
10. The learned counsel for the appellant would contend
that there was absolutely no disability, and much less any loss of
earning capacity for the 1st respondent since it is revealed from
the evidence adduced before the trial court that the 1st respondent
resumed his employment with the 2nd respondent within a short
period after the accident of 02.07.2007, and started receiving
monthly emoluments at the same rate as that of the pre-accident
period. For the above reason, the appellant challenges the award
of compensation to the 1st respondent. It is not possible to accept
the argument of the learned counsel for the appellant in the above
regard in view of the provisions contained in Section 3(1) of the
Employee's Compensation Act. It is to be noted that as per the
proviso to Section 3(1) of the Employee's Compensation Act,
1923, the only contingency where the employer is not liable to
make payment of compensation for the personal injury sustained
by the employee in an accident arising out of the course of
employment is when the injury sustained by the employee does
not result in the total or partial disablement of the employee for a
period not exceeding three days. As far as the present case is
concerned, the evidence on record would reveal that the employee
resumed work with the 2nd respondent after about 20 days from
the date of the accident, and he continued to suffer the trauma
caused as a result of the injury sustained in the accident for a
period of about three years, till the treatment undergone at Kovai
Medical Center and Hospital, Coimbatore in the month of March,
2010 for right ACL Reconstruction using PTB autograft, and partial
meniscectomy of lateral meniscus of right knee joint. Therefore,
it is not possible to say that the 1st respondent had not suffered
any disability or loss of earning capacity as a result of the accident
suffered by him on 02.07.2007 during the course of employment
with the 2nd respondent. The learned Employee's Compensation
Commissioner cannot be found fault with for relying on the
percentage of loss of earning capacity indicated in Ext.X1 medical
report of the special Medical Board as 25%, and making the
calculation of the compensation amount upon the above footing.
11. There is also no merit in the challenge against the
award of interest for the compensation amount since it is clearly
covered by Section 4A of the Employee's Compensation Act, 1923.
The rate of interest at 12% is permissible under Sub Section (3)
of Section 4A of the said Act. Therefore, the challenge against the
order of the Employee's Compensation Commissioner directing
the appellant to make payment of interest for the award amount,
cannot be sustained.
12. In conclusion to the above discussion, I find no reason
to interfere with the order under challenge.
The appeal is found to be devoid of merit, and hence
dismissed with the costs of 1st respondent.
(sd/-)
G.GIRISH, JUDGE
jsr/vgd
