Point of Law: Workmen Compensation - Disability - Employee shall be reimbursed actual medical expenditure incurred by him for treatment of injuries caused during course of employment

JUDGMENT :

Being dissatisfied with the quantum of compensation awarded by the learned Labour Officer and Commissioner for Workmen’s Compensation, Subdivision-1, Belgaum (for short, ‘Commissioner’) in WCA/SR No.53/2012 dated 9.05.2013 for the employment related injuries suffered by him, claimant has preferred this appeal under Section 30(1) of the Employee’s Compensation Act, 1923.

2. Brief facts are that the claimant was working as a driver in a tractor bearing registration No.KA.49/T5023 belonging to respondent No.1/Girish Subhash Dhavaleshwar (respondent No.1 before the Commissioner) and insured with respondent No.2-National insurance company Ltd.,. It is stated that as per the direction of respondent No.1, the claimant on 06.06.2011 was ploughing the land of respondent No.1 using the said tractor and at that time, the tractor capsized and fell on him and he suffered multiple fractures on his legs, hand, head and also injuries all over the body. It is further stated that he was shifted to Ganga surgical and fracture clinic hospital at Gokak wherein he was inpatient for a period of more than one month.

3. In the proceedings before the learned Commissioner, respondent No.1 appeared through a learned counsel but he did not file any written statement. The respondent No.2/insurance company filed detailed written statement.

4. During the enquiry, claimant examined himself as PW1 and he examined one qualified medical practitioner as Dr.M.G.Umrani as PW.2 and got marked Exs.P1 to P16. Respondent No.2 did not examine any witness and policy of insurance was marked as Ex.R2(1).

5. Upon consideration of the entire materials placed before him, the learned Commissioner recorded finding that there was employer and employee relationship between the claimant and respondent No.1, and the accident resulting in injuries to the claimant took place in the course of and arising out of the employment. He further recorded finding that claimant was aged 35 years at the time of the accident and he was earning wages of Rs.4,401/-per month and noticed that P.W.2 had given assessment of loss of earning capacity to the extent of 90%. After applying the appropriate relevant factor, he awarded compensation of Rs.4,68,320/-with interest thereon at 12% per annum, but he did not consider prayer for award of expenses incurred for medical treatment.

6. Sri. Hanumanth H Lathur, learned counsel appearing for the appellant/claimant advanced threefold contentions. Firstly, he contended that claimant had pleaded in the claim petition that even though he was being paid monthly wages of Rs.6,000/-and respondent No.1 did not deny the same by filing written statement, the learned Commissioner by applying a notification has fixed the monthly wages of the claimant at Rs.4,401/and therefore, he submits that the same is liable to be interfered with and the monthly wages fixed at Rs.6,000/-for the claimant. Secondly, he contended that inspite of amputation of right leg suffered by the claimant and other serious injuries suffered by him in the accident and in spite of expert evidence that he suffered 100% disability, the learned Commissioner has fixed his loss of earning capacity only at 90% and the said finding is perverse and therefore, it is liable to be fixed at 100%. Thirdly, he contended that in view of amendment to the Employee’s Compensation Act, 1923 and incorporation of subsection (2A) to Section 4 of the Act, the claimant is entitled to reimbursement of the amounts spent by him towards medical treatment. He submitted that claimant had produced medical bills including the hospital bills to show that he had incurred expenses of Rs.2,74,451/and inspite of the same, the learned Commissioner has totally failed to consider the said aspect and has not granted any reimbursement.

7. Smt.Veena Hegde, learned counsel for the insurance company has vehemently opposed the said submissions and submitted that the learned Commissioner has rightly fixed the monthly wages of the claimant at