AI Structured Summary
Not yet generated for this judgment
Judgment
A.N. Venugopala Gowda, J.—Aggrieved by an Award passed in favour of the 1st Respondent by fastening the liability on the Appellant to pay/deposit the compensation amount/Award amount, the Insurance Company has filed this appeal.
For the purpose of convenience, the parties would be referred to with reference to their rank in the claim petition.
The applicant M. Gopal was employed by the 1st Respondent as a driver, to drive a vehicle bearing registration No. KA-49-0035. During the course of employment and while on duty, an accident occurred on 13.9.05 and the applicant sustained injuries. After taking treatment and finding permanent disability resulting in loss of earning capacity, claim petition was filed against the employer and the insurer of the vehicle. The employer appeared in the claim petition and filed statement of objections dated 3.6.08, wherein he admitted the employment of applicant as a driver in the lorry, the occurrence of the accident, sustaining of injuries as a result of the accident while on duty and also about the treatment. According to him, the treatment expenses was borne by him. However, it was stated that, he was paying consolidated salary of Rs. 5,000/- p.m. and that the vehicle having been insured and the policy being valid from 23.2.07 to 22.2.08 was cited The Insurance Company filed statement of objections dated 26.8.08 and denied the claim.
During the course of evidence, the applicant deposed. A qualified medical practitioner was examined as PW-2. Exs.P1 to P13 were marked. For the Respondent except marking the insurance policy as Ex.R2(1), no other evidence was adduced. Upon appreciation of the rival contentions and the record of the case, the Commissioner allowed the claim petition and directed the payment of compensation of Rs. 1,08,822/- with interest at 12% p.a. after one month of the date of passing of the order. This appeal is directed against the said order/Award.
Sri L. Sreekanta Rao, learned Counsel appearing for the Appellant/2nd Respondent, contended that, the rejection of application filed by the Appellant to refer the applicant to the doctor who treated him for the injuries sustained in the accident for the purpose of assessment of disability is not justified. Learned Counsel alternatively contended that, the assessment of permanent disability by PW-2, which the Commissioner has accepted as it is, is not justified in not keeping in view the nature of injuries sustained and the avocation of the applicant, who has not even surrendered the driving licence.
Sri Mahesh R. Uppin, learned Counsel appearing for the applicant on the other hand, made submissions in support of the findings and conclusion of the Commissioner in the impugned order/Award and further submitted that the non awarding of interest on the compensation amount with effect from the date of occurrence of the accident and awarding after 30 days of the order/Award is illegal, in view the decision of the Apex Court in the case of Oriental Insurance Co. Limited v. Mohd. Nasir and Anr. AIR 2009 SCW 3717.
In view of the rival contentions and the record, the questions for determination are:
(a) Whether the Commissioner is justified in assessing the permanent disability and the loss of earning capacity at 25%.
(b) Whether the applicant is entitled to be awarded interest on the compensation amount from the date of occurrence of the accident till assessment of disability and the Award passed by the Commissioner?
The occurrence of the accident, sustaining of injuries, the treatment obtained and permanent disability are not under challenge. Ex.P5 is the wound certificate, which shows that the applicant sustained fractures of 4th, 5th and 6th ribs right side, apart from other injuries. Treatment was obtained at Chigateri Dist. Hospital of Davanagere. PW-2 having examined the injured, has issued the disability certificate Ex.P11. He has opined that, there is permanent disablement to an extent of 30%. However, he did not assess the loss of earning capacity.
The applicant is a driver. The driving licence is at Ex.P12. Taking into consideration the nature of injuries sustained and there being only partial permanent disablement, the Commissioner has erred in assessing the loss of earning capacity at 25%. In view of the nature of avocation of the applicant, the union of the fractures and the applicant continuing his job as a driver, the loss of earning capacity can be 20%. In the circumstances, the impugned order/Award calls for modification.
The Commissioner has directed the deposit of the compensation amount and granted 30 days'' time for deposit. It has been held that, if there is default, the compensation amount shall carry interest after 30 days of the order/Award. In the case of Mohd. Nasir (supra), the Apex Court has held as follows;
...We are of the opinion that interest will also payable at the rate of 7.5% per annum from the date of filing of the application till the date of award. The rate of interest thereafter shall be payable in terms of the order passed by the Commissioner.
In view of the said decision, the Commissioner is not justified in not awarding interest at the rate of 7.5% on the compensation amount from the date of filing claim petition till the passing of the order/Award.
In the result, the appeal is allowed in part. The impugned order/Award is modified. The compensation payable stands determined at Rs. 87,058/- (2400 x 181.37 x 20/100) which shall carry interest at the rate of 7.5% from the date of filing of claim petition till the date of passing of the impugned order/Award and thereafter, at 12% p.a. till the date of actual deposit.
Draw modified Award.
Out of the amount in deposit, the compensation as above be sent to the Office of the Commissioner and the balance amount refunded to the Appellant.
No costs.