RELIANCE GIC LTD., HUBLI. vs MOHAMAD SALI @ MOHAMAD SABIR

The Insurance Company is in appeal whereas the claimant has filed Cross objections challenging the Judgment and Order passed by the Commissioner for Workmen''s Compensation, Hubli, [''Commissioner, for short], in WCA. NF. No.119/2008.

The facts in brief are: That the claimant instituted a petition before the Commissioner seeking compensation for the injuries sustained by him in employment accident which occurred on 18.6.2008. It was contended that the claimant was working as a driver in lorry bearing registration No. KA-25/B-9370 under the employment of the respondent No.2 herein. The accident occurred when the claimant was in the course of employment. The Insurance company contested the claim. The employer-respondent No.2/owner remained unrepresented. The Commissioner, after analyzing the evidence on record, awarded total compensation of Rs.4,22,302/- with interest at 12% per annum after 30 days of passing of the order. Being aggrieved, the insurance company is in appeal.

The learned Counsel appearing for the appellant/insurer would contend that the Commissioner erred in determining the loss of earning capacity to the extent of 100% as the injuries sustained by the claimant falling under Sl. No.4 of Part-I of Schedule-I to the Employee''s Compensation Act, 1923 [''Act'', for short]. The wound certificate and the evidence of the Doctor clearly establishes that the claimant suffered tear in cornea in the right eye, as such the same cannot be construed as total loss of eye sight to such an extent to render the claimant unable to perform any work, at any stretch of imagination, the injuries sustained by the claimant could not be brought under Sl. No.4 of Part-I of Schedule-I to the Act. At the most, it may fall under Sl. No.26 of Part-II of Schedule-I to the Act. The Commissioner ought to have determined the loss of earning capacity at 30% as per the said entry. Thus, the learned Counsel seeks for modification of the compensation awarded by the Commissioner.

Per contra, learned Counsel appearing for the respondent/claimant justifying the impugned Judgment and Order, would contend that the loss of sight suffered by the claimant would definitely fall under Sl. No.4 of Part-I of Schedule-I to the Act which was properly appreciated by the Commissioner in determining the loss of earning capacity at 100%. It was further contended that the Commissioner failed to appreciate the fracture sustained by the claimant to the elbow and the monthly wages determined by the Commissioner at Rs.3,223/- is on the lower side. It was further contended that the Commissioner erred in awarding interest after 30 days of the passing of the order and not after 30 days of the date of the accident. Thus, the learned Counsel seeks to award compensation considering the fracture of elbow sustained by the claimant and to award interest after 30 days of the date of the accident.

Having heard the rival submissions of the parties and perusing the material on record, the following substantial questions of law arise for consideration. [a] Whether the Commissioner was justified in assessing the loss of earning capacity at 100%?

[b] Whether the Commissioner was justified in considering the monthly income at Rs.3,223/-?

[c] Whether the Commissioner was justified in awarding rate of interest at 12% per annum after 30 days of the date of passing of the order?

It is discernible that the claimant was aged about 24 at the time of the employment accident and was working as a driver by profession under the employment of respondent No.2 herein.

The qualified Medical Practitioner who was examined as PW.2 in his cross examination has categorically stated that the claimant had suffered 30% of loss of eye sight. It is discerned that no loss of earning capacity is assessed by the qualified Medical Practitioner. Sl. No.4 of Part-I of Schedule-I to the Act contemplates 100% of loss of earning capacity where the injury is loss of sight to such an extent as to render the claimant unable to perform any work for which the eye sight is essential. The claimant being a driver by profession, the Commissioner placing reliance on this entry assessed the loss of earning capacity at 100% to determine the total compensation. Sl. No.25 of Part-II of Schedule-I to the Act contemplates 40% of loss of earning capacity where the injury is loss of one eye without complication, the other being normal. Sl. No.26 of Part-II of Schedule-I to the Act provides 30% of loss of earning capacity in cases of loss of vision of one eye, without complications or disfigurement of eye ball, the other being normal. The Doctor who had examined the claimant had assessed the disability to the extent of 30%. Thus, the documents on record clearly establishes that the claimant had suffered the cornea tear to the right eye. The nature of injuries sustained by the claimant to one eye would not attract Sl. No.4 of Part-I of schedule-I to the Act to determine the loss of earning capacity at 100%. The tear in the cornea would result in loss of one eye without complications, the other being normal and the same would fall under Sl. No.25 and 40% would be the loss of earning capacity as per Part-II of Schedule-I to the Act. In such circumstances, the loss of earning capacity determined by the Commissioner at 100% is unsustainable. It is also significant to note that besides the loss of one eye, the claimant had suffered fracture to the elbow. Considering the same, more particularly, the claimant being a driver by profession, this Court is of the considered opinion that it would be just and reasonable to re-determine the loss of earning capacity at 50%. It is also significant to note that the accident in question caused on 18.6.2008. Considering the date of the accident, age of the claimant and his profession, the monthly income determined by the Commissioner at Rs.3,223/- is on the lower side and the same requires to be enhanced to Rs.4,000/- which would be just and reasonable in facts and circumstances of the case. Accordingly, the claimant shall be entitled to total compensation of Rs.2,62,164/- [60% x 4000 x 218.47 x 50%]. However, the claimant shall be entitled to total compensation of Rs.2,62,164/- as against Rs.4,22,302/- awarded by the Commissioner with interest at 12% per annum after 30 days of the date of the accident till the date of deposit. The substantial questions of law are answered accordingly.

Accordingly, the appeal and Cross objections stand disposed of in terms of the above. The amount in deposit shall be transferred to the jurisdictional Workmen''s Compensation Court/Tribunal for disbursement. If found in excess, the amount shall be refunded to the appellant/insurance company forthwith.