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Judgment
This appeal is filed against the judgment and award dated 31.05.2016 passed by the III Addl. Senior Civil Judge Court of Small Causes, Bangalore, in ECA No.89 of 2015.
The injured claimant, working as a conductor in KSRTC bus, met with an accident while she was on duty on 04.06.2012 and filed a claim application claiming compensation of Rs.50,00,000/- under the provisions of Employee’s Compensation Act, 1923. The Tribunal, considering the entire evidence on record, granted the compensation of Rs.2,28,000/-with interest at the rate of 12% per annum from the date of petition till realisation.
Being aggrieved by the said order, the petitioner has preferred this appeal and mainly contended that she sustained grievous injuries, while she was on duty, due to the rash and negligence of the driver of the KSRTC bus bearing registration No.KA-40-F-375 and police filed charge sheet against him. The Tribunal granted meagre compensation and not considered her marriage prospects and promotion aspect. It is contended that the doctor assessed the disability as 62% to the right lower limb and 47% to the left lower limb and 64% to the whole body. But the Tribunal has taken the disability at the rate of 35%. It is also stated that she was paying a salary of Rs.11,208/- per month, but the Tribunal has taken her income as Rs.5,000/- per month. Therefore, requested for enhancement of compensation.
This Court while admitting the appeal on 19.06.2019, framed the following substantial questions of law:
“a)Whether the Tribunal is right in assessing the whole body disability of the Petitioner at 35%, when the doctor PW-2 has assessed the disability at 65% to the whole body?
b)Whether the Tribunal is right in taking the salary of Appellant at Rs.5000/- per month instead of Rs.11218/- per month, as admitted by the employer of the Appellant?
c)Whether compensation awarded by the Tribunal is proper and in accordance with law?”
Heard the arguments of learned counsel appearing for both sides.
On 04.06.2012, while the petitioner was working as a conductor in KSRTC bus bearing registration No.KA-40-F-375 which was proceeding from Bangalore to Chikkamagalur, the driver of the bus drove the same in a rash and negligent manner and dashed to the goods vehicle which was parked on the side of the road. As a result, the petitioner sustained various injuries and took treatment as an inpatient and underwent surgery.
Respondent-KSRTC in their objection, stated that they have extended the facility of IOD (injury on duty) and during that period, they have paid the salary to the petitioner. There was no loss of pay and they have also paid entire medical expenses to the petitioner and she has not lost her job. Presently, she is working in the respondent-corporation and drawing salary and other perks.
The petitioner examined herself as P.W.1 and examined a doctor as PW-2 and got marked the documents as exhibits P1 to P15. The KSRTC examined its CLWO as R.W.1 and also marked exhibits R1 to R6.
It is stated by the petitioner that she was demoted from the post of conductor to helper. She was aged 28 years and getting a salary of Rs.11,208/- per month. Exhibits R10 and R11 i.e. copy of pay slips, show that for the month January, 2012 and February, 2012, the petitioner was drawn salary of Rs.11,218/- and Rs.11,182/- respectively. It is contended that if she was continued as conductor, she might have drawing more salary and also she would have become TC. Exhibit R1 is a copy of the order issued by Division Controller. As per the said order, presently she is working as a helper in the Central Division Office of the Corporation.
Learned counsel of the respondent-KSRTC argued that they have provided an employment to the petitioner with full pay protection. As the post of TC are six in number, there is no chance for her to get promotion even if she continues as a conductor. It is argued that they incurred all the medical expenses and also paid salary during her treatment period. Therefore, she is not entitled for any compensation.
Learned counsel for the appellant-claimant, in support of his contentions, has relied upon the judgment of this Court in MFA No.1247 of 2016 dated 18.07.2023, in which it was held as under:
“19.Xxx the Act is welfare legislation for the benefit of Workmen/Employees, therefore, the said provisions have to be interpreted to serve the welfare of the employees. Sec.4(1)(a) of the Act does not state that an amount equal to fifty percent of monthly wages, as prescribed in the notification under Sec.4(1B) of the Act, must be awarded. Further, the word ‘Wages’ is not defined to say that wages as notified by the Central Government under Section 4(1B). Therefore, there is no merit in the contention that the wages shall be restricted only to the amount notified under the notification.”
The learned counsel for the appellant has also relied upon the judgment of the Hon'ble Supreme Court in the case of Pal Raj Vs. Divisional Controller, North East Karnataka Road Transport Corporation reported in 2010 ACJ 2859, wherein the Hon'ble Supreme Court, at paragraph 17, has held as under:
“17.XXX The loss of earning capacity has to be computed keeping in mind the alternate employment given to the appellant on the same salary as he was enjoying while performing the duty of a bus driver.”
Learned counsel for the respondent–KSRTC, in support of his contentions, has relied upon the judgment of Contemporary Bench of this Court in M.F.A. No.30715 of 2010 dated 06.08.2014, in which it was observed that there is no deduction in pay and the petitioner is drawing same salary as she was drawing in the previous post and there is no evidence to show that she was denied promotion due to the permanent disability and therefore, there is no loss of income in any manner.
IN M.F.A. No.6383 of 2016:
This appeal is filed by the Divisional Controller, represented by its Law Officer, KSRTC against the same judgment and award dated 31.05.2016 passed in ECA No.89 of 2015.
The appellant-KSRTC has contended that the petitioner was working as a conductor, met with an accident and sustained the injurious. As she met with an accident, while on duty, they have provided the benefit of injury on duty (IOD) reimbursement and also provided change of cadre and there is no reduction in the income of the petitioner on account of disability. Medical expenses incurred by her was also reimbursed and the said fact is stated by the management witnesses. The tribunal erred in assessing the loss of earning capacity as 35% and directed the KSRTC to pay compensation of Rs.2,28,000/- with interest at rate of 12% per annum and the said direction is contrary to law as per citation in the case of Divisional Controller, NEKRTC Vs. Mohammed Sharieef, passed by this Court, sitting at Kalaburagi Bench in MFA 30715 of 2010, wherein it is held that in the absence of loss of pay on account of disability, the petitioner is not entitled for compensation. The petitioner was provided with an alternative post of helper. She stated that she lost an opportunity of getting promotion to the post of traffic controller and there is consequential reduction in her salary. But it is not tenable as per Exhibit R1. Exhibit P2 – letter dated 25.04.2015 shows that petitioner is extended with the benefits of PWD Act by continuing her in the same post and pay of conductor by providing light duty. As such, the petitioner is not eligible for promotion etc. based on surmise. It is further contended that the grant of interest at the rate of 12% per annum is also erroneous as the claim petition was filed after the lapse of 3 years. Thus, requested for dismissing the claim petition.
In view of the above contentions, the following substantial question of law is framed in this appeal:
“1.Whether the court below was justified in assessing the disability of 35% while computing compensation as the claimant has not suffered any loss of earning on account of the disability and continues to earn the salary without any reduction?
2.Whether the court below is justified in directing compensation tobe paid by assessing the disability of the claimant at 35% in the absence of medical evidence regarding loss of earning capacity?
3.Whether the court below was justified in directing payment of interest from the year 2012 though the petition is filed in the year 2015?
4.Whether the court below was justified in misapplying the evidence on record with regard to question of disability?
The learned counsel for the KSRTC has mainly relied upon a citation in Mohammed Shareef’s case, cited supra, and stated that there is no loss of pay on account of disability and as such, the petitioner is not entitled for compensation. The learned counsel further stated that the KSRTC has extended benefit of injury in duty (IOD) reimbursement and also incurred medical expenses. There was no reduction in the income as per Exhibit P1. The petitioner has been extended the benefits of PWD Act by continuing in the same post and pay of the conductor by providing lighter duty. As the petitioner met with an accident during the course of employment and sustained injuries, she was continued even after accident in the post of helper with pay protection. Therefore, this Court finds that the petitioner is not entitled for any compensation, but, the Tribunal without appreciating the facts properly, granted compensation of Rs.2,28,000/- with interest at 12% per annum from the date of petition till deposit and the said order is liable to be set aside.
In the result M.F.A. No.6383 of 2016 filed by the KSRTC is allowed by setting aside of the impugned order of the Tribunal.
In view of the order passed in M.F.A. No.6383 of 2016, the claimant-petitioner is not entitled for any enhancement. Therefore M.F.A. No.7388 of 2016 filed by the claimant-petitioner is dismissed.