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Judgment
B. Manohar
The Oriental Insurance Company has filed this appeal challenging the order dated 10-03-2009 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Hassan (in short ''the Commissioner'') in WCA/NF/CR/SR-11/2007 with regard to quantum of compensation awarded to the first respondent. The facts of the case are as follows:
The first respondent filed a claim petition before the Commissioner for Workmen''s Compensation seeking compensation for the injuries sustained by him in a road traffic accident. The case of the claimant is that he was working as a cleaner in Canter Lorry bearing registration No. KA-13/A-5684 belonging to the second respondent. On 17-02-2006, while bringing the chickens from Andhra Pradesh, due to the rash and negligent driving of the lorry near Kollur Bridge, the said lorry met with an accident. Due to the accident the clamant sustained fracture of right femur and fracture of left radius; and also sustained other injuries. He was admitted to the Hospital and taken treatment. He claimed that due to the accident and fracture of right femur and radius, he is unable to do the work of cleaner. Prior to the accident, he was getting a salary of Rs. 4,500/- p.m. and Rs. 50/- per day as batta. Accident occurred during the course and out of employment. He was aged about 28 years. In view of the permanent disability, he could not do the work of cleaner and sought for compensation.
Pursuant to the notice issued by the Commissioner, owner of the vehicle entered appearance and filed objections contending that the claimant was working as a cleaner in the Canter Lorry belonging to him. The said lorry is covered by the insurance and the Insurer is liable to pay the compensation. Hence, sought for dismissal of the claim petition as against the second respondent.
The Insurer entered appearance and filed objections and denied the averments made in the claim petition. However admitted that the Canter Lorry is covered by insurance Policy and it is for the claimant to prove the relationship of employer and employee and that he has sustained injuries in the accident.
On the basis of the pleadings of the parties, the Commissioner for Workmen''s Compensation 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.1 to Ex.P.8. FIR is marked as Ex.P.1 and the charge sheet is marked as Ex.P2. A case has been registered against the driver of the said lorry and the claimant has been cross-examined by the Insurer''s advocate. Further, in support of his claim, the claimant examined one Dr. Ramakirshna Bhat who has treated him. On behalf of the respondents, nobody was examined.
The Commissioner after considering the documents produced by the parties held that the claimant has sustained injuries due to the rash and negligent driving of the driver of the Canter Lorry on 17-2-2006 and the accident has occurred during the course of employment. The Doctor who has treated the claimant in his evidence deposed the percentage of disability in respect of right leg as 50% and with regard to left hand as 15% and he has undergone three operations. The Doctor further deposed that due to the fracture of femur he cannot do the work of cleaner of the lorry; he cannot walk for more distance; and he cannot climb the stairs. Due to the fracture of radius, the left had has bent towards left side and he is unable to do the work of a cleaner.
Though the claimant claims that he was getting a salary of Rs. 4,500/- p.m. and Rs. 50/- per day as batta, no document has been produced to support his claim. In the absence of the same, taking into consideration that in the year 2006, the cleaner usually earns a sum of Rs. 3,500/- p.m., the Commissioner has taken his monthly salary of Rs 3,500/-Considering the age of the claimant at 28 years taking into consideration of disability to an extent of 70% and applying relevant factor of 211.79, the Commissioner has awarded compensation of Rs. 3,11,331/- with interest at the rate of 12% from the date of the accident.
The Insurer being aggrieved by the order dated 10-6-2009 passed by the Commissioner for Workmen''s Compensation, preferred this appeal inter alia contending that the judgment and order passed by the Commissioner is contrary to law with regard to quantum of compensation and rate of interest.
Smt. Harini Shivanand, learned counsel appearing for the appellant contended that though the Doctor in his evidence has deposed that the claimant has suffered disability of 50% to his right leg and 15% disability to his left hand, the Commissioner without any basis had taken into consideration the disability of 70% and awarded compensation which is contrary to law. Further, the interest at the rate of 12% p.m. has been awarded from the date of accident which is contrary to the law laid down by the Hon''ble Supreme Court in a decision reported in AIR 2009 SCW 3717 in the case of The Oriental Insurance Company Limited v/s Mohd. Nasir and Others and sought for setting aside the same.
On the other hand, learned counsel appearing for the first respondent/claimant argued in support of the judgment and order passed by the Commissioner for Workmen''s Compensation and contended that the Commissioner has considered the functional disability of the claimant at 70% and awarded compensation and the same is not liable to be interfered with by this Court and sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the oral and documentary evidence let in by the parties.
It is not in dispute that the claimant has sustained injuries in a road traffic accident that occurred on 17-2-2006 and sustained fractured injuries to his left hand and right leg. He has undergone three operations. At the time of accident, he was aged about 28 years. Dr. Ramakrishna Bhat, in his evidence has deposed that for the fracture of right femur, the claimant has undergone operations by using nails and rods. In view of mal-union of the said bone, he has once again under gone operation and Broad Spectrum Antibiotics have been given and proscribed physiotherapy for the right femur and left hand. Once again the claimant has undergone another operation for removal of implants. The Doctor in his evidence has further deposed that the claimant cannot walk more distance and cannot climb the steps and in view of the accident, he cannot work as a cleaner. Further, due to the mal joining of left hand, the left hand has been bent towards left side. Though the Doctor assessed the disability in respect of right leg at 5C% and 15% in respect of left hand, the Commissioner has taken the functional disability at 70% and awarded compensation. In my view, though the claimant cannot do the work of a cleaner, the accident does not disable him to do other works. Even for the amputation of hand and leg, usually the percentage of disability is taken at 60%. In the instant case, it is only a fracture of the right femur and left-hand radius. Hence, the functional disability at 70% considered by the Commissioner is contrary to law. The disability suffered by the claimant is not more than 50%. Therefore, taking into consideration the oral and documentary evidence let in by the parties and the evidence given by the Doctor, the functional disability is taken at 50% and the claimant is entitled to compensation only to the extent of 50% disability which comes to Rs. 2,22,379/- as against Rs. 3,11,331/-.
Further, the Hon''ble Supreme Court in the judgment reported in AIR 2009 SCW 3717 cited supra has clearly held that the claimant is entitled for compensation along with interest at the rate of 7.5% p.a. from the date of claim petition till the date of passing the award and 12% p.a. after 30 days of passing the award. In the instant case, the Commissioner has awarded the interest at the rate of 12% p.a. from the date of accident which is contrary to the decision of the Hon''ble Supreme Court. Hence, the award is liable to be modified. Accordingly I pass the following:
ORDER
The appeal is allowed in part. The award is modified to the extent that the claimant is entitled to compensation of Rs. 2,22,879/- as against Rs. 3,11,331/- along with interest at the rate of 7.5% p.m. from the date of claim petition till the date of passing the award and 12% p.a. after 30 days of passing the award. The excess amount if any, deposited by the Insurer be refunded to them.
The amount in deposit be transferred to the Commissioner for Workmen''s Compensation, Hassan.