AI Structured Summary
Not yet generated for this judgment
Judgment
B. Manohar, J. - The Oriental Insurance Company has filed this appeal challenging the judgment and order dated 19-4-2008 made in WCA/SR/3/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Sub-Division-I, Belgaum (hereinafter referred to as ''the WCC'' for short).
The first respondent herein filed a claim petition contending that he was working as a driver in a bus bearing registration No. KA-05/B-7866 belonging to the second respondent herein, for the last two years. The said bus was hired by NWKRTC on an agreement. On 30-1-2006, as per the instructions of owner of the vehicle, while he was proceeding towards Bangalore from Belgaum, the vehicle met with an accident on Tumkur-Bangalore Road. In view of that the claimant who was working as driver in the said bus sustained fracture of left leg and other grievous injuries to the body. He claims that he was aged about 32 years, at the time of accident and getting salary of Rs. 6,000/- p.m. In view of the injuries sustained and fracture of left leg, he cannot do the work of driver. The accident occurred during the course and out of employment. The bus was covered by insurance policy as on the date of accident and hence, he sought for compensation of Rs. 3,50,000/-.
In pursuance of the notice issued by the WCC, though owner of the bus was served with notice, he remained unrepresented. The second respondent/Insurance Company filed written statement denying the entire averments made in the claim petition and also disputed the relationship of master and servant between the claimant and owner of the vehicle. No document has been produced to show that owner of the vehicle was paying him salary of Rs. 6,000/- p.m. Hence, sought for dismissal of the claim petition as against the Insurance Company.
The third respondent filed written statement contending that there was an agreement between them and the owner of bus. As per the conditions of the said agreement, all the responsibility is on the owner of the vehicle and the 3rd respondent is not liable to compensate the claimant and sought for dismissal of the claim petition as against respondent No. 3.
On the basis of the pleadings of the parties, the WCC framed necessary issues. The claimant, in order to prove his case examined himself as P.W. 1 and got marked the documents as Ex. P.l to Ex. P. 11. He also examined the doctor who issued the disability certificate as P.W. 2. On behalf of the respondents, none of the witnesses have been examined. However, insurance policy of the bus was marked as Ex. P. 1.
The WCC, after appreciating the oral and documentary evidence let in by the par ties and taking into consideration spot mahazar, MVI report, copy of the complaint, held that the claimant has sustained injuries in the road traffic accident occurred on 30-1-2006 during the course and out of employment. Hence, the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the accident the claimant has sustained fracture of lateral malleolus of fibula and other injuries to the body. Though the doctor has assessed the loss of earning capacity to an extent of 25% due to fracture, the WCC has taken the functional disability to an extent of 50% and taking the income of the claimant as Rs. 4,000/- p.m., taking 60% thereof, since the claimant was aged about 32 years at the time of accident, applying the relevant factor of 207.98 awarded a sum of Rs. 2,49,576/- with interest at the rate of 12% p.a. The appellant-Insurance Company, being aggrieved by the judgment and order passed by the WCC has filed this appeal.
Sri P. H. Pawar, learned counsel appearing for the appellant contended that the judgment and order passed by the WCC considering the functional disability to an extent of 50% is contrary to law since the doctor has assessed the disability to an extent of 25% only. Hence sought for modifying the judgment and order passed by the WCC.
On the other hand, Sri. Gururaj R. Turamari, learned counsel appearing for the respondents 1 (A) to 1 (C) contended that the claimant was driver by profession. In view of fracture of lateral malleolus of fibula, he would be uncomfortable to do the work of driver. Hence, 50% functional disability taken by the WCC is in accordance with law and sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the impugned judgment and order and other relevant records.
The records clearly disclose that the claimant was working as a driver in the bus belonging to the first respondent and he sustained injuries in the road traffic accident occurred on 30-1-2006. Immediately after the accident, initially he took treatment in a private hospital at Dabaspete and thereafter, he took treatment in the Government Hospital at Belagavi wherein he had taken treatment as inpatient for a period of 8 days. The doctor who had issued the disability certificate has assessed the disability to an extent of 25% in view of the fracture of lateral malleolus of fibula. The WCC while awarding compensation has taken the disability to an extent of 50%. Under Section 4(l)(c)(ii) of the Employees Compensation Act, while assessing the loss of earning capacity, the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule-I. In the instant case, except the fracture of lateral malleolus of fibula, the claimant has not suffered any other injuries. When the qualified doctor has assessed the disability to an extent of 25%, the WCC cannot go beyond the assessment made by the qualified medical practitioner. The assessment of disability by the WCC to an extent of 50% for the fracture of lateral malleolus of fibula is contrary to law. Hence, the order passed by the WCC cannot be sustained. Taking into consideration the income of the claimant as Rs. 4,000/- p.m., taking 60% thereof, and considering the disability to an extent of 25%, applying the relevant factor 207.98, the claimant is entitled to a sum of Rs. 1,24,788/- with interest at the rate of 12% p.a. As per the judgment of the Hon''ble Supreme Court in the case of Oriental Insurance Company Limited v. Siby George and others, reported in 2012 ACJ 2126 the claimant is entitled to interest at the rate of 12% p.a. from one month after the accident. Accordingly, I pass the following :
ORDER
The appeal is allowed in part. The judgment and order dated 19-4-2008 made in WCA/CR/3/2007 passed by the Labour Officer and Commissioner for Workmen Compensation, Sub-Division-1, Belgaum is hereby modified. The claimant is entitled to compensation of Rs. 1,24,788/- with interest at the rate of 12% p.a. from one month after the accident, as against a sum of Rs. 2,49,576/-.
The amount in deposit is directed to be transferred to the Civil Judge (Sr. Dn.), Belgaum for disbursement.