The main legal point established is that the disability percentage and medical expenses reimbursement should be determined based on medical evidence and the provisions of the Employees Compensation Act, 1923.

JUDGMENT :

1. The claimant filed the present appeal for enhancement as against the judgment and award dated 03.12.2016 made in ECA.No.50/2014 on the file of the Senior Civil Judge at Kundapura/Tribunal awarding total compensation of Rs.90,130/- with 12% interest after one month from the date of the accident.

2. It is the case of the claimant that on 15.09.2012 at about 7.50 a.m., during the course of his employment under the first respondent, the petitioner was driving the bus bearing registration No.KA-16-A-1679 from Kundapura to Trasi side, when the said bus reached a place near Jaladi Anganavadi, Hemmadi Village, N.H.66, Kundapura Taluk, the bus met with an accident. Due to the said accident, claimant sustained grievous injuries. Immediately after the accident, the claimant was shifted to Chinmayi Hospital, Kundapura, wherein he was admitted as inpatient and surgery was conducted and he has spent Rs. 1,00,000/- towards medical expenses. The accident occurred arising out of and during the course of his employment under the first respondent and the first respondent used to pay monthly wages at Rs.7,000/- per month and Batta of Rs.75/- per day. The first respondent is the owner and the second respondent is the insurer. Both are jointly and severally liable to pay the compensation.

3. The first respondent did not appear before the Tribunal in spite of service of notice. The second respondent appeared and filed the objections, denied the averments made in the claim petition and contended that there is no employer - employee relationship between the claimant and the first respondent and also denied the injuries sustained and further contended that he insured with first respondent and liability if any is governed by the terms, conditions and limitations as use of the policy of insurance issued by the second respondent and further contended that the accident occurred due to the negligence on the part of the claimant. Therefore, sought to dismiss the claim petition.

4. Based on the aforesaid pleadings, the Commissioner, Workmen Compensation/Tribunal framed the following issues:

1. Whether the petitioner proves that he was an employee under Workmen's Compensation Act?

2. Whether the petitioner proves that petitioner sustained injuries during the course of employment under 1st respondent as a driver in bus bearing Reg. No.KA-16-A-1679 in the alleged accident?

3. Whether the petitioner proves that how much salary he is getting per month from respondent No.1 and what is the age of the petitioner on the date of the accident?

4. Whether the petitioner proves that he has suffered future earning capacity due to the accidental injuries?

5. Whether the petitioner is entitled for compensation as prayed?

6. What Order or Award?

5. In order to establish his case, the claimant examined as PW-1 and examined doctor as PW-2 and marked documents Ex.P1 to Ex.P7. The respondent -insurance company has not adduced any oral or documentary evidence.

6. The Tribunal considering both the oral and documentary evidence on record, recorded a finding that the claimant has proved that he was an employee under the first respondent and the accident occurred and the claimant sustained grievous injuries arising out of and during the course of the employment and also proved the monthly wages, age and loss of earning capacity. Accordingly, the Tribunal proceeded to award total compensation of Rs.90,130/- with interest at the rate of 12% after one month from the date of the accident. Hence, the present appeal is filed for further enhancement. The insurance company has not filed any appeal against the impugned judgment and award.

7. This Court admitted the appeal to consider the following substantial question of law:

1. Whether the Commissioner, Employees Compensation/Tribunal is justified in taking disability at the rate of 12% ignoring the evidence of doctor - PW-2 in view of the provisions of Section 4[1]C[ii] of the Act?

2. Whether the Commissioner, Employees Compensation/Tribunal