PRAKASH, S/O SHANKRAPPA vs MAHANTHESH, S/O YAPPANNA, & ANR.

Appellant is the claimant. Being not satisfied with the quantum of compensation awarded in the judgment and order dated 26.2.2010 made in KAHACHI/KANAPA/NF/CR-75/2008 on the file of the Labour Officer and Commissioner for Workmen Compensation, Chitradurga, (for short ''Commissioner for Workmen Compensation'') seeking enhancement of compensation.

Appellant filed a claim petition contending that he was working as a hamali in a lorry bearing Registration No.AP-02/T-9099 belonged to the 1st respondent herein. On 9.12.2007, as per the instructions of the owner of the lorry, after loading groundnut bags, while he was proceeding towards Chitradurga, near N Upparahatti Gate, due to rash and negligent driving of the said lorry, it turned turtle. In view of the impact, the claimant and other hamalies have sustained grievous injuries all over the body. Immediately after the accident, the claimant was shifted to Nayakanahatti Primary Center. After first aid, he took treatment as an inpatient in Sri Vinayaka Hospital and Trauma Center. In view of the injuries, he is permanently disabled to do the work, which he was doing prior to the accident. The accident occurred during the course and out of employment. The said vehicle was insured with the 2nd respondent. Hence, both the respondents are liable to compensate the claimant.

In response to the notice issued by the Commissioner for Workmen Compensation, the owner of the vehicle entered appearance and filed written statement admitting that the claimant was working as a hamali in the lorry belonging to him and in view of the road traffic accident occurred on 9.12.2007, he has sustained injuries.

The Insurance Company defended the case and filed written statement denying the entire averments made in the claim petition and also disputed the relationship of master and servant between the owner of the vehicle and the claimant. No document was produced to show that the owner of the vehicle was paying salary to the claimant. Hence, sought for dismissal of the claim petition as against the Insurance Company.

On the basis of pleadings of the parties, the Commissioner for Workmen Compensation framed necessary issues.

In order to prove the case, the claimant was examined as PW3 and got marked the documents as Exs.P12, P13 and P14. On behalf of Insurance company, none of the witnesses were examined nor documents were marked.

The Commissioner for Workmen

Compensation after appreciating the oral and

documentary evidence held that during the course and out of employment, the claimant has sustained injuries in the road traffic accident occurred on 9.12.2007 and is entitled for compensation. The doctor who treated the claimant, assessed the loss of earning capacity to an extent of 42%. in view of the fracture of both the bones of right leg and fracture of neck of right humerous.

The Commissioner taking into consideration the income of the claimant as Rs.3,000/- p.m, as he was aged about 22 years applying the relevant factor 221.37 and taking the loss of earning capacity to an extent of 35% awarded compensation of Rs.1,39,463/- with interest at 7.5 p.a. The claimant being not satisfied with the quantum of compensation and also awarding the rate of interest has filed this appeal.

Learned Advocate appearing for the appellant contended that though the doctor who treated the claimant assessed the loss of earning capacity to an extent of 42% in view of the fracture of both bones of right leg and fracture of neck of right humerus, the Commissioner for Workmen Compensation without assigning any reason has taken the loss of earning capacity to an extent of 35%, which is contrary to law. Under Section 4(1)(c)(ii) of the Employees Compensation Act, once a qualified medical practitioner assessed the disability of the unscheduled injuries, the Commissioner for Workmen Compensation has no jurisdiction to go beyond the assessment made by the qualified doctor. Hence, taking the loss of earning capacity to an extent of 35% is contrary to law. Further, the rate of interest awarded by the Commissioner for Workmen Compensation is contrary to law laid down by the Hon''ble Supreme Court.

On the other hand, Sri C Shankar Reddy, learned Advocate appearing for the 2nd respondent argued in support of the judgment and order and contended that the Commissioner for Workmen Compensation taking into consideration the injuries sustained and suffering undergone by the claimant awarded just and fair compensation in accordance with law.

I have carefully considered the arguments addressed by the learned Advocate appearing for the appellant and Sri C Shankar Reddy, learned Advocate appearing for the 2nd respondent, perused the judgment and order and the oral and documentary evidence.

The main contention of the appellant is that the Commissioner for Workmen Compensation while taking the loss of earning capacity has taken the disability to an extent of 35% to whole body, though the doctor assessed the disability to an extent of 42% and awarding the rate of interest is also contrary to law. There is some substance in the contention urged by the appellant. Under Section 4(1)(c)(ii) of the Employees Compensation Act, once a qualified medical practitioner assess the loss of earning capacity, the Commissioner for Workmen Compensation has no power to meddle with the assessment made by the qualified doctor. In the instant case, in view of the fracture of both the bones of right leg and fracture of neck of humerus, the doctor who has treated the claimant assessed the loss of earning capacity to an extent of 42%, however loss of earning capacity assessed to an extent of 35% by the Commissioner for Workmen Compensation is contrary to law. As per the judgment of the Hon''ble Supreme Court in the case of Oriental Insurance Company Ltd.

-vs- Siby George and ors. reported in 2012 ACJ 2126, the claimant is entitled for interest at the rate of 12% p.a. from one month after the accident. Therefore, taking the income at Rs.3,000/- p.m. and taking 60% thereof, taking the loss of earning capacity to an extent of 42% and applying the relevant factor 221.37, the claimant is entitled for compensation of Rs.1,67,355/- (1800 x 221.37 x 42/100) as against Rs.1,39,463/- awarded by the Tribunal. Further, as per the judgment of the Supreme Court referred to above, the claimant is entitled for interest from one month after the accident. Accordingly, I pass the following:

ORDER

Appeal is allowed in part. The judgment and order dated 26.2.2010 made in KAHACHI/KANAPA/NF/CR- 75/2008 on the file of the Labour Officer and Commissioner for Workmen Compensation, Chitradurga, is modified. The claimant is entitled for compensation of Rs.1,67,355/- as against Rs.1,39,463/- with interest at 12% p.a. from one month after the accident.