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2004 Supreme(Kar) 289
Karnataka High Court
NEW INDIA ASSURANCE COMPANY LIMITED, gulbarga - Appellant
Versus
SUBHAS - Respondent
Decided On : 04-17-04
M.F.A. : 4535 of 1997
R.S.SIDHAPURKAR, S.V.HEGDE MUKHAND
Headnote:
Whether daily batta charges is part of wages for the purpose of computing the compensation under the Workmen's compensation Act, 1923? Whether the Commissioner was justified in including a sum of Rs. 650.00 as batta charges, in calculating the monthly wage? To what extent and in what circumstances, the Commissioner is bound by the assessment by the QMP and what is the scope of the Commissioner's power in determining the loss of earning capacity? Whether the Commissioner can while determining the amount of compensation, award a compensation under Section 4 (l) (b) of the Act for an injury that falls under Section 4 (l) (c) (i) read with Part II of Schedule Ho the Act?
Fact of the Case:
The workman sustained an employment injury on 4-2-1996 when driving the said lorry. He sustained serious injuries to the right leg (comminuted fracture of middle and lower one-third of right fibula, oblique fracture of midshaft of right tibia, fracture of head of left fibula, fracture of lower pole of right patella and oblique comminuted fracture of distal shaft of second metatarsal ). He was hospitalised between 4-2-1996 and 11-5-1996 for treatment and was advised further treatment and bed rest for another six months. He contended that he suffered 100% permanent disablement due to the said injuries sustained by him, that he had lost his job, and that he was unable to attend to his normal day-to-day activities or work nor earn an income.
Finding of the Court:
The Commissioner determined the income of the workman with reference to the minimum wage notification dated 12-3-1992 (Gazetted on 28-5-1992) issued by the State Government. He took the minimum wage as Rs. 806. 50, with corresponding dearness allowance of Rs. 651. 60. Even though the minimum wage notification did not provide for any payment of any daily batta, having regard to the evidence of the workman, the commissioner calculated the batta as Rs. 650/- per month (at the rate of rs. 25/- per day for 26 days in a month ). He thus arrived at the monthly wage of the workman as Rs. 2,108. 10. Having regard to the ceiling provided in Explanation II to Section 4 (l) (b) of the Act, he took the wages as Rs. 2,000/- per month for calculating the compensation. He held that as the workman could not drive any vehicle and as he could not work as a driver as he was doing before the accident, his case should be treated as one of total disablement and assessed the loss of earning capacity as 100%. He calculated the compensation under Section 4 (l) (b) of the Act as follows. 60% of wages multiplied by the relevant factor, that is 60/100 x 2000 x 207. 98 = Rs. 2,49,576/ -. The Commissioner was justified in treating the loss of earning capacity as 100%. On the facts and circumstances and in view of our findings on the points arising for consideration was find no error in the award of the Commissioner, We therefore do not propose to interfere with the award of the Commissioner.
Issues: Whether daily batta charges is part of wages for the purpose of computing the compensation under the Workmen's compensation Act, 1923? Whether the Commissioner was justified in including a sum of Rs. 650.00 as batta charges, in calculating the monthly wage? To what extent and in what circumstances, the Commissioner is bound by the assessment by the QMP and what is the scope of the Commissioner's power in determining the loss of earning capacity? Whether the Commissioner can while determining the amount of compensation, award a compensation under Section 4 (l) (b) of the Act for an injury that falls under Section 4 (l) (c) (i) read with Part II of Schedule Ho the Act?
Ratio Decidendi: The Commissioner is bound by the assessment by the QMP in respect of the physical disability. But, if the assessment by the QMP is disputed by any party, the Commissioner can sit in judgment over the assessment by the QMP and pronounce upon the same. The Commissioner has the power to modify the assessment of disability and loss of earning capacity by the QMP relied on by the workman or the employer. The Commissioner's power to decide whether a workman has suffered permanent total disablement or permanent partial disablement, as a result of the injuries, on the basis of evidence let in before him, remains unaffected by amendment to Section 4 (l) (c) (ii) by Act 22 of 1984 inserting the words 'as assessed by the Qualified Medical Practitioner'. If the Commissioner holds that the workman has suffered permanent total disablement, on account of injuries other than those specified in Part I of Schedule I to the Act, he can proceed on the basis that it has resulted in 100% loss of earning capacity. Where the Commissioner holds that the workman has suffered permanent partial disablement on account of non-scheduled injuries, the Commissioner should determine the "loss of earning capacity" based on the assessment by a qualified Medical Practitioner. If the Commissioner is not satisfied about the correctness of the assessment made by a qualified Medical Practitioner, at the instance of the workman or the employer, the Commissioner may have the workman examined by an independent Qualified Medical practitioner and act on the assessment by such independent qualified Medical Practitioner.
Final Decision: Appeal is accordingly disposed of as having no merit. Parties to bear respective costs.
( 1 ) RESPONDENT herein was the driver of lorry bearing Registration No. CAM-105 of which second appellant is the owner and first appellant is the insurer. Respondent sustained an employment injury on 4-2-1996 when driving the said lorry. He sustained serious injuries to the right leg (comminuted fracture of middle and lower one-third of right fibula, oblique fracture of midshaft of right tibia, fracture of head of left fibula, fracture of lower pole of right patella and oblique comminuted fracture of distal shaft of second metatarsal ).
( 2 ) THE petitioner filed a claim petition (W. C. No. 4 of 1996) under section 10 of the Workmen's Compensation Act, 1923 ('act' for short), praying for award of Rupees Three lakhs as compensation, in respect of the said injuries. In the claim petition the respondent (also referred to as the 'workman') averred that he was aged 35 years and was getting a salary of Rs. 2,000/- per month apart from Rs. 25a per day as batta, at the time of accident. He also stated that he was hospitalised between 4-2-1996 and 11-5-1996 for treatment and was advised further treatment and bed rest for another six months. He contended that he suffered 100% permanent disablement due to the said injuries sustained by him, that he had lost his job, and that he was unable to attend to his normal day-to-day activities or work nor earn an income.
( 3 ) THE employer filed objections denying the claim of the workman that he was getting a salary of Rs. 2,000/- plus batta of Rs. 25/- per day. He alleged that workman was paid only Rs. 700/- as salary including batta. The employer did not however dispute or deny the accident or the injuries sustained by the workman. The employer, as also the insurer (first appellant herein), denied that the workman had suffered 100% disability as a result of the injuries sustained by him.
( 4 ) THE workman filed an application before the Commissioner for workmen's Compensation (for short, 'the Commissioner') to issue summons to Dr. Ravindra R. Shah, who had already treated him, to assess his disability, to produce the Medical case sheets and give evidence. Accordingly summons were issued to the said Qualified medical Practitioner ('qmp' for short), who examined the workman and issued a certificate dated 18-6-1997 in regard to the injuries and their effect.
( 5 ) THE workman examined himself as P. W. 1 and the QMP who issued the Medical Certificate as P. W. 2. The employer did not let in any evidence, though he could have clearly established the workman's salary, by producing his records/accounts.
( 6 ) DR. Ravindra R. Shah (P. W. 2) in his evidence listed the injuries sustained by the workman. He stated that the injuries were grievous in nature; that the workman underwent surgery for insertion of 1m nail with interlocking of right tibia and nailing of fibula on 20-2-1996; that he was an in-patient between 4-2-1996 to 11-5-1996 in the Government hospital, Gulbarga; that he suffered post-operative skin necrosis which was treated with serial dressing; that he was readmitted as an in-patient from 28-10-1996 to 28-2-1997 to obtain treatment for the continued infection of the operation site; that workman was again admitted to Government General Hospital for the third time in June 1997 and underwent surgery for removal of nail in tibia and removal of pieces of dead bone; that though structurally the limb was salvaged, functionally the limb could not be put to pre-injury status; that the workman has suffered permanent partial physical impairment to the extent of 50% with reference to whole body; and that the workman will not be able to drive any heavy motor vehicle or any kind of vehicle in future. The certificate issue by him on 18-6-1997 (Ex. P. 26) referred to the injuries and treatment and the third surgery undergone in June 1997 and certified as follows:"he is likely to need treatment for approximately next 4 to 6 months, as the old fracture had failed to unite due to infectio
