Back
2019 Supreme(Kar) 2116
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
B.M. Shyam Prasad, J.
Divisional Manager, New India Assurance Co. Ltd.- Appellant
Versus
Shahajan S/O Mohamed Hanif Laxmeshwar – Respondent
M.F.A. NO. 23076 of 2011 (WC)
Decided On : 26-03-2019
Advocate Appeared:
For the Appellant :Sri. S.S. Koliwad, Advocate
For the Respondent:Sri. M.M. Khannur, Advocate
Headnote:
Employees Compensation Act, 1923 - Section 4(1)(c)(2) – Employment and service – Claim of compensation - Whether Commissioner could have assessed loss of earning capacity in light of provisions of Sec. 4(1)(c)(2) of Employees Compensation Act ignoring evidence on record - Claimant-respondent No.1 undisputedly was working as a driver registered owner of lorry - Claimant-respondent No.1 met with accident while driving said lorry in course of his employment - Claimant-respondent no.1 suffered injuries fracture to his left wrist and left radius - He filed claim petition under Employees Compensation Act, 1923 with Commissioner along with Cleaner and others who were also traveling in vehicle as employees - These claim petitions were taken up for common trial by Commissioner - Claimant-respondent No.1 examined himself and also examined an Orthopedic Surgeon in support of his claim petition - Doctor deposed that he had examined claimant-respondent No.1 - Claimant suffered permanent physical impairment of upper limb - In cross examination however stated that he could not assess functional disability - Commissioner assessed loss of earning capacity and assessed income of claimant-respondent No.1 and awarded compensation applying relevant factor based on age of claimant-respondent No.1 – Held, It is undisputed that claimant-respondent no.1 is a driver licensed to drive heavy vehicle like a lorry and he was in employment with owner of insured vehicle - He suffered injuries to his left wrist in accident - As regards disablement that he has suffered because of injuries to his left wrist he has examined an Orthopedic surgeon who has stated that claimant-respondent no.1 has suffered permanent physical impairment of left upper limb – However he is categorical in his cross-examination that he cannot assess functional disablement - Claimant-respondent No.1 is a driver he has suffered fracture injuries in his left wrist in an accident while in course of employment - Doctor has said there is restriction in wrist and finger movements and therefore partial permanent disablement is because of restriction in wrist movement because of restriction in movement of finger with for pain moderately interfering with work - If impairment is because of restriction of wrist/ finger movement and pain interfering with work loss of earning capacity could reasonably be assessed as claimant-respondent No.1 is a driver of a heavy vehicle – Therefore substantial question framed is answered in favor of appellant-insurance company and held that respondent no.1-claimant is entitled for compensation towards loss of income determined of compensation payable for a permanent total disablement - Liability of Insurance Company to pay compensation to an employee who is injured in course of employment is under provisions of Employees’ Compensation Act in terms of policy issued – Therefore right of injured workman to receive compensation and quantum of compensation are to be determined is as per provisions of the Employees Compensation Act - Income of injured employee and loss of earning capacity are parameters for determining compensation in case of partial total disablement because of injuries that are not mentioned in schedule 1 of Workmen’s Compensation Act – Therefore there must be appropriate assessment of income of injured-claimant lest an injured claimant is denied what is statutorily secured - Commissioner has assessed income of injured-respondent no.1 – However injured-respondent no.1 was employed as a driver of a heavy vehicle and his income could be reasonably assessed as against maximum as provided for vide Notification issued under provisions of Section 4(1B) of Employees’ Compensation Act - If compensation that claimant-respondent no.1 would be entitled is computed taking loss of earning capacity and income claimant would be entitled – Appeal disposed of
JUDGMENT :
The Insurance Company, which is directed to deposit a sum of Rs.1,97,892/- as compensation in discharge of its statutory obligation under the provisions of the Employees Compensation Act, 1923, to the claimant-respondent in WCA/NF/77/2010 dated 06.04.2011 by the Labour Officer & Workmen Compensation Commissioner, Gadag District, Gadag (for short ‘Commissioner’) has filed this appeal impugning such judgment and award.
2. The claimant-respondent No.1 undisputedly was working as a driver with Sri Basayya (respondent No.2), the registered owner of lorry bearing No. KA-22-4062 ON 15.02.2010. The claimant-respondent No.1 met with accident while driving the said lorry in the course of his employment. The claimant-respondent no.1 suffered injuries, viz., fracture to his left wrist and left radius. He filed claim petition under the Employees Compensation Act, 1923, (for short, “the E.C. Act”) with the Commissioner, along with the Cleaner and others, who were also traveling in the vehicle as employees. These claim petitions were taken up for common trial by the Commissioner. The claimant-respondent No.1 examined himself, and also examined Dr. K.S. Kantesh, an Orthopedic Surgeon, in support of his claim petition. The Doctor deposed that he had examined the claimant-respondent No.1. The claimant suffered 43% permanent physical impairment of the upper limb. In the cross examination, however, stated that he could not assess the functional disability. The Commissioner assessed the loss of earning capacity at 38%, and assessed the income of the claimant-respondent No.1 at Rs.4,000/-per month and awarded compensation of Rs.1,97,082/-applying the relevant factor based on the age of the claimant-respondent No.1.
3. The learned counsel for the Insurance Company contended that in the case of injury not specified in Schedule 1 of the E.C. Act, in view of the provisions of Section 4(1)(c)(2) of the E.C. Act compensation payable should be such portion of the compensation payable in the case of permanent total disbursement as is proportionate to the loss of earning capacity as assessed by a qualified medical practitioner, because of the injuries. The Doctor, who has been examined in support of the claimant, is categorical that he is unable to assess the functional disability. Despite this evidence, the Commissioner has assessed the loss of earning capacity, without any reason, at 38%.
4. The learned counsel for the claimant-respondent no.1 contended that the claimant-respondent no.1, undisputedly is a driver of a heavy vehicle and he has suffered wrist injuries of the left hand. As such, the assessment of loss of earning is justified. The Commissioner has assessed the income of the claimant respondent no.1, despite specific evidence as regards his avocation as a driver of a heavy vehicle, at Rs.4,000/-, when it is undisputed that a sum of Rs.6,000/-would be more appropriate given the provisions of the E.C. Act mainly as of January 2010.
5. In the light of the rival submissions, the following substantial question arises for consideration.
1. Whether the Commissioner could have assessed the loss of earning capacity at 38% in the light of the provisions of Sec. 4(1)(c)(2) of the Employees Compensation Act ignoring the evidence on record?
6. It is undisputed that claimant-respondent no.1 is a driver licenced to drive heavy vehicle like a lorry and he was in employment with the owner of the insured vehicle. He suffered injuries to his left wrist in the accident. As regards disablement that he has suffered because of the injuries to his left wrist, he has examined Dr.K.S. Kantesh, an Orthopedic surgeon, who has stated that the claimant-respondent no.1 has suffered 43% permanent physical impairment of left upper limb. However, he is categorical in his cross-examination that he can not assess functional disablement.
7. The provisions of Sec. 4(1)(c)
