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Judgment
B. Manohar, J.—The Insurance Company in this appeal challenging the legality and correctness of the judgment and order dated 8-4-2011 made in WCA No. 87 of 2009 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Mandya Sub-Division-1, Mandya (hereinafter referred to as ''the WCC'' for brevity) has filed this appeal.
Respondent 1 herein filed the claim petition contending that he was working as a driver of Ambassador Car bearing Registration No. KA-13/M-249 belonging to respondent 2 herein. On 27-4-2007, as per the instructions of the owner of the car, while he was proceeding on Bangalore-Mysore Road, near Mandya City, a tempo traveller which was going ahead of car suddenly applied brake and stopped on the road without giving any signal or any indication. Due to that, the car dashed against the said tempo traveller and the claimant sustained fracture of tibia. The accident occurred during the course and out of employment. Prior to the accident, the owner of the vehicle was paying him salary of Rs. 4,500/- p.m. and batta of Rs. 50/- per day. Due to the accident, he is not able to perform his duty as a driver and hence, he filed claim petition seeking compensation of Rs. 4,00,000/-.
In pursuance of the notice issued by the WCC, the owner of the vehicle filed written statement admitting that the claimant was working as the driver of his car and the accident has occurred on 27-4-2007. Since the insurance policy covers the risk of the driver, Insurance Company has to pay the compensation to the claimant.
The Insurance Company contested the claim petition and denied the entire averments made in the claim petition and also disputed the master and servant relationship between the owner and the driver of the car. No document is shown to prove that the owner of the car was paying Rs. 4,500/- p.m. The Insurance Company also disputed the occurrence of the accident and injuries sustained by the claimant.
On the basis of the pleadings of the parties, the WCC framed the following issues:
(1) Whether the applicant-Sri Shivakumara A., being employed as driver in Ambassador Car bearing No. KA-13/M-249 belong to the first respondent, met with accident on 27-4-2007 and sustained grievous injuries resulting in disablement?
(2) Whether the accident arose out of and during the course of employment of the applicant under the first respondent?
(3) What was the monthly wages of the applicant?
(4) What was the age of the applicant at the time of accident?
(5) What is the amount of compensation the applicant was entitled to receive?
(6) Which respondent is liable to deposit the compensation before this Court?
(7) To what order?
The claimant was examined himself as P.W. 1 and got marked documents as Exs. P. 1 to P. 6. The doctor who treated the claimant and issued the disability certificate was examined as P.W. 2. On behalf of the second respondent, Sri V. Muralidhara, an Administrative Officer has been examined as R.W. 1 and marked the insurance policy as Ex. R. 1.
The WCC, after appreciating the oral and documentary evidence let in by the parties and after taking into consideration the spot mahazar, IMV report, charge-sheet, copy of the complaint and driving licence, held that due to the road traffic accident, the claimant has sustained injuries during the course and out of the employment. Hence, the claimant is entitled for the compensation.
With regard to the quantum of compensation is concerned, in the road traffic accident the claimant has sustained fracture of right tibia. He has taken treatment and POP was applied. In view of the fracture he cannot bend his leg and drive the vehicle as he was doing earlier. The doctor who has treated the claimant has assessed disability to an extent of 25%. Though the claimant claims that he was paid Rs. 4,500/- p.m. and batta of Rs. 50/- per day, no document is produced and the owner of the car has also not supported the case with regard to the salary. After taking into consideration the minimum wages being paid to the driver, the WCC assessed the income at Rs. 4,000/- p.m., the total disability at 25% as assessed by the doctor and applying the relevant factor of 213.57, awarded a sum of Rs. 1,28,142/- with interest at the rate of 7.5% from the date of filing the application till the date of award and onwards 12% per annum till the date of deposit within 30 days from the date of the judgment and order. Since the claimant was having valid and effective driving licence as on the date of the accident, the Insurance Company is fastened with the liability to pay the compensation. The appellant-Insurance Company being aggrieved by the judgment and order fastening the liability on them to compensate the claimant has filed this appeal.
Sri B.S. Umesh, the learned Counsel for the appellant contended that the judgment and order passed by the WCC is contrary to law. The doctor who has treated the claimant has not assessed the loss of earning capacity of the claimant or the whole body disability of the claimant but has opined the disability to the extent of 25%. In the accident, the claimant has sustained fracture of tibia and POP has been applied. The claimant was aged 28 years at the time of the accident. Awarding compensation by the WCC after considering the disability to an extent of 25% is contrary to law. Further, the income of Rs. 4,000/- p.m. is also on the higher side. Due to the negligence of the claimant the accident occurred, hence, Insurance Company cannot be made liable to pay compensation. He has relied on the judgment of this Court in the case of Louis Martis v. Louis Korrea and Another reported in ILR 2010 KAR 2600 and sought for modifying the judgment and order passed by the WCC.
On the other hand, Sri. M.Y. Sreenivasan, learned Counsel appearing for respondent 1 argued in support of the judgment and order passed by the WCC and sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned Counsel for the parties and perused the judgment and award as also oral and documentary evidence let in by the parties.
The only point that arise for my consideration is that, whether the quantum of compensation awarded by the WCC taking into consideration the disability to the extent of 25% due to fracture of tibia is in accordance with law?
The records clearly disclose that the claimant has sustained injuries due to the accident that occurred on 27-4-2007 during the course and out of employment. The police record, IMV report, spot mahazar, copy of the complaint and charge-sheet dearly disclose that during the course and out of the employment, the claimant has sustained injuries due to sudden apply of the brake by tempo traveller on the middle of the road.
With regard to the quantum of compensation is concerned, the accident has occurred in the year 2007. The claimant was working as driver of the Car belonging to the second respondent herein and was earning more than Rs. 4,500/- p.m. In the instant case, the WCC has taken Rs. 4,000/- p.m. as the income of the claimant. The claimant has sustained fracture of tibia except that, no injury was suffered by him. The doctor who has treated the claimant by applying POP, has assessed the disability to an extent of 25%. He has not assessed the loss of earning capacity as required under Section 4(l)(c)(ii) of the Employee''s Compensation Act, 1923. Under the Act, a competent medical practitioner has to assess the loss of earning capacity. In the instant case, the doctor has assessed the disability to the extent of 25%, which cannot be taken as the loss of earning capacity. The judgment relied upon by the learned Counsel for the appellant with regard to non-fatal injuries is not applicable to the facts of the present case. Hence, taking into consideration the loss of earning capacity to the extent of 15% and the income as Rs. 4,000/- p.m., deducting 60% of the income there of and by applying relevant factor 213.57, the claimant is entitled for a sum of Rs. 76,885/- as compensation as against Rs. 1,28,142/-.
Accordingly, I pass the following:
ORDER
The appeal is allowed in part. The judgment and order dated 8-4-201 made in WCA No. 87 of 2009 is modified. The claimant is entitled for compensation of Rs. 76,885/- as against Rs. 1,28,140/- awarded by the WCC with interest at 12% per annum from one month after the accident as per the law laid down by the Hon''ble Supreme Court in the case of Oriental Insurance Company Limited v. Siby George and Others reported in (2012) 12 SCC 540.
The amount in deposit has to be transferred to the Labour Officer and Commissioner for Workmen''s Compensation, Mandya Sub-Division-1, Mandya.
The excess amount, if any, may be refunded to the appellant-Insurance Company.