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Judgment
A.N. Venugopala Gowda
2nd Respondent was the owner of autorickshaw bearing registration No. KA-20-A-2853. 1st Respondent was employed by the 2nd Respondent to drive the said vehicle. 2nd Respondent had insured the said vehicle with the Appellant. On 06.05.2007, the 1st Respondent sustained injuries by accident arising out of and in the course of his employment. He filed claim petition before the Commissioner for Workmen''s Compensation (''CWC'' for short) at Udupi, against the employer and the insurer, to pay compensation, alleging that, there is permanent disability suffered, which has resulted in loss of earning capacity. The owner of the vehicle/employer remained absent and was placed exparte by the CWC. The Appellant, which had insured the said vehicle, appeared, and filed its statement of objections, The CWC raised 6 issues. The claimant deposed and also examined a qualified medical practitioner Exs.P-1 to P-5 were marked. For the insurance company, the policy of insurance was marked as Ex.R-1, CWC has allowed the claim petition in part, directing the Appellant to deposit compensation of Rs. 48,192/- within 30 days of the order dated 13.03.2009 and in case of default, to pay interest at 12%, Feeling aggrieved, the insurance company has filed this appeal.
Sri A. Ravishankar, Learned Counsel appearing for the Appellant, firstly contended that, the CWC has erred in allowing the claim petition when the claimant has failed to produce any police record or credible evidence with regard to occurrence of road traffic accident, on account of which, the claimant sustained the injury. Secondly, the evidence of P.W. 2 and Exs. P-1 to P-5 does not make out that, on account of the injury sustained there is permanent disability and loss of earning capacity. Learned Counsel pointed out that, P.W. 2 has not determined the loss of earning capacity as required u/s 4(1)(c) of the Workmen''s Compensation Act, 1923 (for short ''the Act'') and that, P.W. 1 has admitted with regard to he continuing with the work as before and also earning the wages as before and in the circumstances, the compensation payable, if any, would be only u/s 4(1)(d) of the Act and hence the impugned award being wholly erroneous, is not sustainable.
Sri. H. Pavana Chandra Shetty, Learned Counsel appearing for the 1st Respondent/claimant, on the other hand contended that, immediately after the accident, the claimant took treatment and Ex.P-1 medical certificate shows the occurrence of the accident and there being no dispute with regard to treatment obtained from P.W. 2, as evidenced from Exs.P-1 to P-5, the CWC is justified in allowing the claim. Learned Counsel submitted that, the owner of the vehicle having not disputed the occurrence of the accident, there was no need for filing of a complaint before the police and merely because a complaint was not lodged and police case was not registered, the claimant cannot be denied the compensation.
Sri L. Harish Kumar, Learned Counsel appearing for the 2nd Respondent, referring to an affidavit filed on 20.07.2011, submitted that, the 1st Respondent was employed by the 2nd Respondent to drive the vehicle in question and that, the vehicle met with an accident on 06.05.2007 in front of Government Hospital at Ajjarkad and that the driver sustained injury to the right upper limb. Learned Counsel submitted that, the non-appearance of the employer before the CWC was on account of lack of proper legal advice and even otherwise, the vehicle having been insured and the policy being valid as on 06.05.2007, the fastening of liability on the Appellant is justified.
Having heard the Learned Counsel on both sides and having perused the record of the case, the question of law to be determined is:
Whether the CWC is justified in holding that the claimant is entitled to be paid compensation of Rs. 48,192/-
Ex.P-1 is medical certificate issued by Hitech Medicare Hospital and Research Centre, Udupi, which shows that, the claimant took treatment on 06.05.2007 for fracture of radial styloid of right wrist. Ex.P-2 are the bills of the said hospital for the treatment obtained on 06.05.2007. Ex.P-4 is outpatient card dated 28.01.2008 which shows that, the fracture was united and it was opined that, there is difficulty for the patient in lifting weights and removing an placing at the same place. Doctor has opined that, there is functional disability to the right upper limb to the extent of 12%. P.W. 2 has deposed with regard to the treatment and the disability suffered.
The claimant, in the cross-examination has categorically admitted that, his right wrist is united and he has been attending to the duty of a driver under the 2nd Respondent after three months from the date of accident and that, he has been receiving the salary of Rs. 4,000/- to Rs. 4,500/- per month.
The learned CWC without noticing the admissions of the claimant in the cross-examination, has held that, there is permanent disability to art extent of 12% and there is also loss of earning capacity to the said extent and has quantified the compensation payable at Rs. 48,192/-.
While computing compensation for the disability suffered by a workman during the course of his employment, it is the functional disability resulting in loss of earning capacity which is the criteria followed in assessing the compensation. Loss of earning capacity is commensurate to the injuries suffered and the loss of earning capacity as a result thereof. In this case, the claimant has not suffered any disability to function as a driver. He has clearly admitted that, after three months of the accident, he has been driving the autorickshaw under his employer and earning wages of Rs. 4,000/- to Rs. 4,500/- per month. Both P.W. 1 and P.W. 2 have admitted that, the fracture is united. The CWC without taking into consideration the specific admission of the claimant during the cross-examination has erred in holding that, there is permanent disability and resultant loss of earning capacity at 12% of the wages.
The injury suffered has not disabled the claimant from permanently earning his Living either as a driver or otherwise. The record clearly shows that the claimant has continued his job of driving an autorickshaw and there is no permanent disablement, muchless functional disablement, as far as earning livelihood as a driver. The claimant has been earning the same salary as he was earning even prior to the accident occurred on 06.05.2007. Keeping in view the facts and circumstances of the case, even though there is no permanent disability muchless functional disability, it would meet the ends of justice if the claimant is awarded compensation of Rs. 15,000/- on account of the treatment received and other related factors.
In the result, the appeal is allowed in part and the compensation payable is determined at Rs. 15,000/- with interest at 12% p.a from 13.04.2009 till the date of deposit by the insurance company.
Out of the amount in deposit, the compensation with interest as above be sent to the CWC and the balance amount refunded to the Appellant.
However, in the facts and circumstances of the case, parties are directed to bear their respective costs.
Draw award accordingly.