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NC: 2024:KHC-D:4687
MFA No. 103533 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
TH
DATED THIS THE 29 DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 103533 OF 2018 (ECA)
BETWEEN:
SRI. MAHESH S/O. SAHADEVAPPA KALASUR,
AGE: 34 YEARS, OCC: DRIVER, NOW NIL,
R/O. MALAGUNDA, TQ: HANGAL,
DIST: HAVERI-581104.
…APPELLANT
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
1. SRI. VIJAYAKUMAR D. S, S/O. DEVAPPA K.
AGE: MAJOR, OCC: BUSINESS,
R/O. SHIVADARSHANA FARM HOUSE,
INDIRA NAGAR, SAGAR-577401,
TQ: SAGAR, DIST: SHIVAMOGGA.
2. THE DIVISIONAL MANAGER,
THE UNITED INDIA INSURANCE CO. LTD,
N. K. COMPLEX, KESHWAPUR, HUBBALLI-580029.
ROH AN
…RESPONDENTS
HADIMANI
T
(BY SRI. S. S. KOLIWAD, ADV. FOR RESPONDENT NO.2
Digitally signed by
ROHAN HADIMANI
NOTICE TO RESPONDENT NO.1 SERVED)
T
Date: 2024.03.05
11:09:58 +0530
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.30(1) OF
THE EMPLOYEES COMPENSATION ACT, PRAYING TO ENHANCE THE
COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD
PASSED BY THE COMMISSIONER FOR EMPLOYEES COMPENSATION
AND SENIOR CIVIL JUDGE AND J.M.F.C, HANGAL, AT: HANGAL, IN
E.C.A. NO-21/2014 DATED 01/06/2017 BY ALLOWING THIS APPEAL
WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:4687
MFA No. 103533 of 2018
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal by the appellant/injured filed under
Section 30(1) of the Employees Compensation Act, 1923 (for
short, ‘Act, 1923’), seeking enhancement of compensation,
being aggrieved by the judgment and award dated 1.6.2017
passed in ECA No.21/2014 on the file of learned Commissioner
for Employees’ Compensation and Senior Civil Judge & JMFC,
Hangal (for short, ‘Commissioner’).
2. The facts in brief are that the, the appellant/injured
was working as driver under respondent No.1. That on
9.12.2012 at about 8.15 a.m., the appellant was driving the
bus bearing registration No.KA-15/3600 belonging to
respondent No.1 and when he was proceeding towards Andalagi
to Bommanahalli, at that time, one cattle suddenly came on
road and the driver of the bus i.e., the appellant took the bus
on katcha road, and suddenly the bus toppled down. Due to
which, the appellant sustained fracture of left scaphoid bone,
fracture of left clavicle, fracture of scapula and other multiple
injuries all over the body. Immediately, he was shifted to
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MFA No. 103533 of 2018
government hospital, Hangal for treatment. It is averred that
the appellant was aged about 30 years and was getting
Rs.12,000/- per month as salary from respondent No.1 and
Rs.100/- per day as batta. Due to the accidental injuries, he
has lost his earning capacity. Hence, he filed claim petition.
3. The respondent/Insurance Company entered
appearance and filed objections denying the age, avocation and
income of the appellant. The insurer admitted that the vehicle
bearing registration No.KA-15/3600 was insured with
respondent No.2/Insurance Company under package policy. It
is further averred that the liability of insurance company is
subject to terms and conditions of policy. Thus, sought
dismissal of the claim petition.
4. During trial, the appellant examined himself as PW1
and examined one doctor as PW2, apart from marking the
documents as Ex.P1 to P12(a). The respondents did not
examine any witness nor marked any document.
5. The learned Commissioner after analyzing the
evidence available on record, awarded total compensation of
Rs.1,14,360/- along with interest at 12% per annum.
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MFA No. 103533 of 2018
6. Heard the arguments of learned counsel Sri.Harish
S Maigur for the appellant/injured and learned counsel
Sri.S.S.Koliwad, for the respondent/insurance company.
7. Learned counsel Sri.Harish S Maigur for the
appellant submits that the Commissioner committed an error in
assessing income of the appellant/injured at Rs.5,000/- per
month, which is contrary to the pleadings and evidence
available on record. He submits that the Commissioner further
erred in assessing the loss of earning capacity of the
appellant/injured at 18%, as the doctor (PW2), who examined
the injured and issued Disability Certificate, has opined that the
claimant has suffered 30% to the whole body. Hence, he seeks
to allow the appeal by modifying the impugned judgment and
award appropriately.
8. Per contra, learned counsel Sri.S.S.Koliwad for the
respondent/Insurance Company supporting the impugned
judgment and award would submit that the Commissioner
taking note of the pleadings and evidence on record has rightly
assessed the income and disability of the injured, which does
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MFA No. 103533 of 2018
not warrant interference at the hands of this Court. Thus, he
seeks to dismiss the appeal.
9. Having heard the arguments of learned counsel for
the parties and on perusal of the appeal papers, the following
substantial question of law would arise for consideration in this
appeal:
Whether the Commissioner is justified in assessing
the income of the injured/appellant at Rs.5000/- per
month and also justified in assessing disability of the
injured at 18%?
10. The above substantial question of law is answered
in the negative and in favour of the appellant/injured.
11. There is no dispute with regard to employer and
employee relationship between respondent No.1 and
appellant/injured, so also the occurrence of the accident in
question during the course of employment and arising out of
the employment. The appellant/injured specifically pleaded
that he was working as driver under respondent No.1 and
getting monthly salary of Rs.12,000/- and additional sum of
Rs.100/- as daily batta. However, he has not produced any
iota of document to substantiate his claim of income. Central
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MFA No. 103533 of 2018
Government under notification dated 31.05.2010 brought an
amendment to the Act, 1923 fixing notional maximum wages of
a workman at Rs.8,000/- per month for the purpose of
computing compensation under the Act, 1923. Hence, this
Court taking note of the same, assesses the notional income of
the appellant/injured at Rs.8,000/- per month as against
Rs.5,000/- assessed by the Commissioner.
12. Insofar as assessment of disability of the
appellant/injured is concerned, the appellant examined PW2-
doctor and he has deposed that on clinical and radiological
examination, he has found that the claimant/injured has
suffered permanent physical disability to the extent of 30% and
18% to the whole body. However, this Court, taking note of
the evidence of PW2-doctor coupled with Ex.P12-Disability
Certificate, is of the considered view that it would be just and
appropriate to assess the disability of the appellant/injured at
20% to the whole body as against 18% assessed by the
Commissioner. Thus, the appellant/injured would be entitled to
compensation on the head of loss of earning capacity as under:
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MFA No. 103533 of 2018
Rs.8,000 x 60/100 x 211.79 x 18/100 = Rs.1,82,986.56,
which is rounded off to Rs.1,82,990/-
13. Thus, the claimant would be entitled to
compensation of Rs.1,82,990/- as against Rs.1,14,360/-
awarded by the learned Commissioner.
14. It is noticed that this Court vide order dated
18.2.2022, while condoning the delay of 394 days in filing the
appeal, made an observation that the appellant/claimant would
not be entitled for interest for the delayed period, in case if he
succeeds in the appeal. Hence, the claimant would not be
entitled for the interest on the enhanced compensation for the
delayed period.
15. In the result, I proceed to pass the following:
ORDER
a) The appeal stands allowed in part.
b) In modification of impugned judgment and
award of the learned Commissioner, this
Court holds that the appellant/claimant
would be entitled to compensation of
Rs.1,82,990/- as against Rs.1,14,360/-
awarded by the learned Commissioner.
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MFA No. 103533 of 2018
c) The entire compensation amount shall carry
interest at the rate of 12% per annum w.e.f.
thirty days after the date of the accident till
realization.
d) Needless to observe that the
appellant/claimant would not be entitled to
interest on the enhanced compensation
amount for the aforesaid delayed period.
Registry to take note of the same while
drawing award.
e) Draw modified award accordingly.
Sd/-
JUDGE
JTR
List No.: 1 Sl No.: 37