The loss of one eye resulting in total incapacity to continue the driving profession constitutes 100% loss of earning capacity under the Employees’ Compensation Act.

JUDGMENT

MFA.No.8801/2018 is preferred by the Insurance Company whereas MFA.No.334/2020 is preferred by the petitioner challenging the judgment and award dated 13.07.2018 passed in ECA .No.11/2014 by the Senior Civil Judge and JMFC and Motor Accident Claims Tribunal, H.D.Kote (for short ‘trial Court’). The appeal preferred by the Insurer is premised on the ground of perversity, arbitrariness and exorbitant amount of compensation awarded, whereas the appeal preferred by the petitioner is premised on the ground of wrong assessment of income and inadequacy of compensation.

2. Parties to the appeals shall be referred to as per their status before the trial Court.

3. Brief facts of the case is as under:

Petitioner was an employee under respondent No.1, wherein he was working as a driver of jeep bearing registration No.KA-12-M-4781. On 01.05.2011, at about 9.30 p.m. when petitioner was driving the jeep as mentioned above along with another person from hand post of H.D.Kote Taluk towards Antharasanthe Village on Mysuru-Manandawadi Road, near Anagatti gate, on the left side of the road, a vehicle came from the opposite direction and dashed against the petitioner’s jeep. Pursuant to the accident, the said unknown vehicle without stopping the vehicle, absconded from the spot whereby it is a hit and run case. Due to the impact of the said accident, petitioner and another occupant namely, Devaraju @ Devaiah sustained injuries. Petitioner sustained injuries on his face, left eye and other parts of the body, whereas the other occupant namely, Devaraju succumbed to the injuries at the spot itself.

3.1. Immediately after the accident, petitioner was shifted to Government Hospital, H.D.Kote and after obtaining first aid treatment, he was shifted to K.R.Hospital, Mysuru for better treatment, where he was admitted as an inpatient in the said Hospital. Petitioner sustained the following injuries:

a) Abrasion on left humerus;

b) Injuries on face and head;

c) Injury on left leg knee joint;

d) Injury on left eye; 3.2.

Due to the injuries sustained by the petitioner in the accident, his left eye was severely damaged and pursuant to the surgery being to the left eye, he came to be discharged on 09.05.2011. Pursuant to discharge from the Hospital in view of post-operation complications, he took further treatment on OPD basis. In view of injuries sustained in the accident and severely on the left eye, the petitioner has lost his left eye vision completely and thereby sustained permanent visual disability resulting in his incapacity to do his avocation of driving employment. Thus, the petitioner suffered loss of future earning capacity in view of injuries sustained in the accident.

3.3. It is stated by the petitioner that prior to occurrence of accident, he was hale and healthy and aged 24 years as on date of occurrence of accident and was earning an income of Rs.200/- as daily wages and Rs.50/- as bata per day.

3.4. In view of the accident, petitioner lodged a complaint before H.D.Kote Police Station and consequently, the Police registered an FIR in Crime No.147/2011 on 02.05.2011 for the offences punishable under Sections 279, 337, 304(A) of IPC read with Section 134(A) and (B) of the IMV Act. It is stated by the petitioner that the accident occurred during the course of employment and arising out of employment with the employer namely, respondent No.1. It is further stated that since petitioner was in employment with respondent No.1, there exists relationship of employee and employer and that respondent No.1 employer of the said vehicle, involved in the accident, had insured the vehicle with respondent No.2-Insurance Company. Hence, respondent Nos.1 an