Branch Manager, National Insurance Co. Ltd. vs Nijalingappa @ B. Nijalingappa and Kumar

S.N. Satyanarayana, J.—Second Respondent. insurance company in NFC. No. 107/2007 on the file of Commissioner for Workmen''s Compensation, Chitradurga has come up in this appeal challenging the quantum of compensation awarded to applicant in the said proceedings.

Brief facts leading to this appeal are:

The case of applicant before Commissioner, who is 1st Respondent: in this proceedings, is that he was working as driver of Autorickshaw bearing No. KA-16/7624 belonging to lst Respondent and insured with 2nd Respondent before Commissioner. It is his further case that on 3.4.2007 while he was discharging his duty as driver in the course of his employment under 1st Respondent, said Autorickshaw met with an accident near V.V. Pura Cross, Hiriyur town, resulting in tenderness and swelling of right hip, abrasion over fore-arm, abrasion over left knee and trochantric fracture of right leg. Subsequently, applicant filed claim petition seeking compensation for the aforesaid injuries suffered by him.

In the proceedings before Commissioner, on appreciation of orai and documentary evidence available on record, Commissioner proceeded to award compensation to applicant in a sum of Rs. 2,12,515/- payable with interest at 12% from 30th date of order till date of deposit of entire amount. The Commissioner for the purpose of calculating compensation payable to applicant has taken wages of applicant at Rs. 4,000/- p.m., and relying on the evidence of FW.2 , Dr. Ravi Kumar proceeded to hold that applicant has suffered permanent disability to his whole body to an extent of 55%, which has resulted in loss of earning capacity at 40% and proceeded to award aforesaid compensation. Being aggrieved by the same, the present appeal is filed by 2nd Respondent insurance company before the Commissioner.

The ground on which present appeal is filed is that Commissioner while assessing loss of earning capacity has committed an error in not appreciating the evidence available on record in terms of Section 4(1)(c)(ii) of Workmen''s Compensation Act. That Commissioner while allowing petition has observed that 2nd Respondent insurance company has failed to contest, claim producing acceptable evidence to demonstrate that compensation claimed by applicant is on higher side and injuries suffered by him does not entitle him to seek compensation taking loss of earning capacity at 40%. It is also the case of insurance company that when an application was filed by it seeking permission to refer applicant to an expert for medical opinion before proceeding to accept the loss of earning capacity, the same is rejected. Thereafter, there is an observation in the judgment to the effect that there is failure on the part of insurance company in adducing necessary evidence to substantiate that claim of applicant is on higher side.

While admitting this appeal this Court after hearing the learned Counsel for Appellant framed the following substantial question of law, which is as under:

Whether the Commissioner was justified in taking the loss of earning capacity of the claimant at 40% contrary to Section 4(1)(c)(ii) of the Workmen''s Compensation Act?

Heard the counsel for Appellant and contesting Respondent. On appreciation of the grounds of appeal in the light of finding of Commissioner in the order impugned and oral and documentary evidence available on record, this Court answer the aforesaid substantial question of law in the negative for the following:

REASONS

Before the Commissioner, applicant has adduced evidence and produced several documents in support of his claim. The document wound certificate produced by him which is at Ex.P4, refer to four injuries said to have suffered by applicant. Out of which, three are simple in nature and 4th one trochantric fracture is grievous in nature. The applicant in support of his claim has also adduced evidence of Dr. Ravi Kumar, PW.2. Incidentally, said Doctor is not the person who treated him. He has examined him on 8.1.2008 and thereafter, assessed disability that applicant is said to have suffered in the accident, which has taken place on 3.4.2007. In has evidence, PW.2 does not say what is the nature of treatment that was provided to applicant while he was admitted to Government Hospital at Hiriyur. Incidentally, applicant has not taken care to summon the Doctor who treated him immediately after accident while he was inpatient in Government. Hospital, Hiriyur at Davanagere. He has also not produced discharge summary and other relevant medical documents, which demonstrate the nature of treatment that was provided to him while he was under treatment. Further, said Doctor admits that applicant has not undergone any surgery and fracture suffered by him is treated conservatively and has completely healed. In that view of matter, the document i.e., disability certificate issued by him, which is at Ex.P6 runs contrary to his admission in the cross examination.

It is further seen that said Doctor though states that applicant has suffered whole body disability to an extent of 55%, he does not say what was functional disability that is caused to applicant for the injuries said to have suffered by him in the accident. He also does not say what is the extent of loss of earning capacity said functional disability may cause to applicant. Said Doctor except making a bald statement that applicant has suffered loss of earning capacity to an extent of 40% there is nothing on record to demonstrate such a thing. Considering the fact that fracture suffered by applicant having cured without surgical intervention, the evidence of either applicant as PW. 1 or Doctor as PW.2 to say that applicant has suffered whole body disability to an extent of 55% and loss of earning capacity at 46% does not stand to reason.

In that view of matter, while answering substantial question of law in the negative this Court opine that compensation awarded by Commissioner payable to applicant is required to be reassessed taking loss of earning capacity of applicant at 20%. If the same is taken at 20% with wages at Rs. 4,000/- p.m., and the factor remaining same, the compensation that applicant would be entitled to receive would be Rs. 1,06,257.50 rounded off to Rs. 1,06,258/-, which he is entitled to receive with interest at 12% from 30th date of order till date of deposit of entire amount.

Accordingly, the appeal filed by insurance company is allowed in part.

In view of the appeal being allowed in part from out of the amount in deposit revised compensation along with interest is directed to be transferred to. Commissioner for Workmen''s Compensation, Chitradurga to be released in favour of applicant and balance amount is directed to be released in favour of Appellant insurance company.