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Judgment
B. Sreenivase Gowda, J.—The appeal is filed by the appellant - Insurance Company, challenging the quantum of compensation awarded by the Commissioner for Workmen''s Compensation, Shimoga Dist. Shimoga, (hereinafter referred to as ''Commissioner'').
For the sake of convenience, parties axe referred to as they are referred to in the claim petition before the Commissioner.
The brief facto of the case are.
On 20/2/2002 when the claimant was working at a Cleaner in the lorry bearing Regn. No. KA. 14/5050 belonging to the 2nd respondent herein, the lorry met with an accident and as a result, he sustained injuries. Therefore, he filed a claim petition before the Commissioner, seeking compensation and the said claim petition was resisted by the Insurance Company by filing statement of objections.
The claimant in support of hic case examined himself as P.W.1 and the Doctor) who treated him as P.W.3. He has produced about 9 documents, which are marked as Exs.P.1 to P.9. The Insurance Company after examination, produced the Insurance Policy as Ex.R-1 but did not lead any oral evidence. The Commissioner after considering the oral and documentary evidence, by the impugned award held that the claimant has established that he is a workman as contemplated u/s 2(1)(n) of the Workmen''s Compensation Act (hereinafter referred to as the ''Act'') and that he has sustained injuries in the accident that occurred during the course of and out of his employment and is entitled to seek compensation. Thereafter, the Commissioner by assessing the wages of the claimant at Rs. 4,000/- and the loss of earning capacity at 50%, awarded compensation of Rs. 2,71,656/- with interest 3t 12% after 30 days from the date of accident.
As there is no dispute regarding injuries sustained by the claimant in the accident that occurred during the course of and out of employment and the liability of the Insurance Company, the only substantial question of law that arises for my consideration in this appeal is:
Whether the Commissioner is justified in assessing the wages of the claimant at Rs. 4,000/- p.m. and the loss of earning capacity at 50% and awarding compensation of Rs. 2,71,656/- with interest at 12% p.a. after 30 days from the date of the accident?
Sri B.C. Seetharama Rao, learned Counsel appearing for the Insurance Company submitted that except the self serving statement of the claimant that he was earning wages of Rs. 3,000/- p.m. and bata of Rs. 100/- per day, the same is not established either by examining the owner of the lorry or by producing any documentary evidence to that effect. On the other hand the claimant has admitted that he was earning wages of Rs. 3,000/- p.m. He further submitted that P.W.2/Doctor who treated the claimant has stated that claimant has sustained 10% disability but he has not stated what is the loss of earning capacity sustained by the claimant on account of the injuries sustained by him in the accident. He further contended that awarding of interest at 12% p.a. after 30 days from the date of accident is contrary to the judgment of the Hon''ble Supreme Court. Hence, he prays for allowing the appeal by reducing the compensation awarded by the Commissioner.
Per contra, Smt. Shilpa, for Sri N.K. Ramesh, learned Counsel appearing for the claimant submitted that the claimant by working as a cleaner in the lorry belonging to the respondent No. 2 was earning wages of Rs. 3,000/- p.m. excluding bata of Rs. 100/- per day and therefore, the Commissioner for Workmen''s Compensation, has rightly assessed his wages at Rs. 4,000/- p.m. as he cannot take salary of the claimant more than Rs. 4,000/- p.m. as per Explanation (2) to Section 4 of the Act. She therefore, submitted that the Commissioner apart from considering the total disability stated by the Doctor has observed the condition of the claimant during the course of evidence and therefore, assessed loss of disability at 80% and awarded compensation and there is no scope for reduction of the compensation and she prayed for dismissal of appeal.
The claimant was aged about IS years as on the date of accident dated 20/2/2002 and he was working as a cleaner to the lorry belonging to the respondent No. 2. The contention of the claimant that he was earning wages of Rs. 3,000/- p.m. excluding bata of Rs. 100/- per day is not substantiated either by examining the owner of the lorry or by producing any documentary evidence to that effect. At the same time, the statement made by the claimant during the course of the evidence that he was earning wages of Rs. 3,000/-does not mean that the same is including bata. Considering the age of the claimant, the nature of his job, year of the accident and the statement of the claimant, assessment of wages of the claimant at Rs. 4,000/- p.m. by the Commissioner is on the higher side. In the facts and circumstances of the case, it is just and proper to assess the wages of the claimant at Rs. 3,500/- p.m.
The claimant has sustained the following injuries:
Incomplete fracture neck of right humorous, fracture tip of coracoid process, injuries to wrestle, right arm and all over the body.
The claimant has stated that after sustaining the aforesaid injuries, he is disabled to carry on any work. P.W. 2/Doctor who treated the claimant has stated that the claimant has sustained 20% of disability on account of the injuries sustained by him in the accident. He has also stated that the claimant may not be in a position to do his work as a coolie in the lorry with the same strength and capacity with which he was doing prior to the accident but he may be in a position to carry on some other work. Considering the nature of injury sustained by the claimant and the disability stated by the Doctor, the loss of earning capacity assessed by the Commissioner at 50% is on the higher side.
At this juncture, learned Counsel for the parties submitted that instead of remanding the matter on this technical ground to the Commissioner for reassessing the loss of earning capacity, this Court may assess the loss of earning capacity on the materials available on record and may award just and reasonable compensation.
Considering the submission of the learned Counsel for parties and considering the nature of injuries sustained and disability stated by the Doctor, it is just and proper to assess the loss of earning capacity at 25%. If that is so, the compensation works out to Rs. 1,18,850/- (i.e. 3,500 x 60/100 x 226.38 x 25/200) as against Rs. 2,71,656/- awarded by the Commissioner.
With regard to awarding of interest, the matter is covered by the judgment of the Hon''ble Supreme Court reported in case of Oriental Insurance Co. Ltd. v. Mohammed Nasir and Anr. 2009 AIR SCW 3717, wherein it has been held that interest has to be awarded at 7.5% p.a. from the date of claim petition till the date of award and 12% p.a. from the date of award till the date of deposit.
Accordingly, the appeal is allowed in part.
(i) The judgment and award passed by the Commissioner for Workmen''s Compensation, Shimoga Dist. Shimoga, in Case No. CWC:CR: 19/2003 is modified.
(ii) The claimant is entitled to compensation of Rs. 1,18,800/- with interest at 7.5% p.a. from the date of claim petition till the date of award and 12% p.a. from the date of award till the date of deposit.
(iii) In view of deposit of the entire amount of compensation by the Insurance Company while preferring the appeal, the office is directed to calculate the compensation amount payable to the claimant as per the judgment of this Court and refund the balance amount if any, to the Insurance Company.
(iv) The amount payable to the claimant is ordered to be transferred to the Commissioner for Workmen''s Compensation concerned, for payment.
(v) The rest of the award is undisturbed and no order as to cost.