Karnataka High Court
Sangappa @ Sangamesh vs Shivakumar And Anr on 20 January, 2025
-1-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200199 OF 2019 (WC)
BETWEEN:
SANGAPPA @ SANGAMESH S/O GUNDAPPA,
AGE: 27 YEARS, OCC: DRIVER, NOW NIL,
R/O: H.NO.8-118, CHITAGUPPA, TQ. HUMNABAD,
DIST. BIDAR,
NOW RESIDING AT JANATA COLONY,
LALGERI CROSS, KALABURAGI-585 102.
...APPELLANT
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. SHIVAKUMAR S/O MADEPPA CHOUDSHETTY,
Digitally
signed by AGE: MAJOR, OCC: BUSINESS AND
LUCYGRACE OWNER OF TAVERA VEHICLE BEARING
Location:
HIGH COURT NO.KA-32/M-9548,
OF
KARNATAKA R/O AINAPUR, TQ. CHINCHOLI,
DIST. KALABURAGI-585 307.
2. THE DIVISIONAL MANAGER,
THE UNITED INDIA INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, DR. JAWALI COMPLEX,
SUPER MARKET, KALABURAGI-585 102.
...RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADV. FOR R2;
V/O DTD. 19.03.2019, NOTICE TO R1 IS DISPENSED WITH)
-2-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
THIS MFA IS FILED UNDER SECTION 30 (I) OF THE
EMPLOYEE'S COMPENSATION ACT, 1923 PRAYING TO MODIFY
THE JUDGMENT AND AWARD DATED 19.11.2018 PASSED IN
ECA.NO.210/2014 ON THE FILE OF THE COURT OF I ADDL.
SENIOR CIVIL JUDGE AND COMMISSIONER FOR WORKMAN
COMPENSATION, KALABURAGI AT KALABURAGI AND TO
MODIFY THE SAID JUDGMENT AND AWARD BY ENHANCING
THE COMPENSATION OF Rs.4,12,200/- ONLY AS CLAIMED BY
THE APPELLANT BEFORE THIS HON'BLE COURT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON’BLE MR. JUSTICE C M JOSHI)
The appellant being aggrieved by the judgment and
award in ECA.No.210/2014 passed by the I Additional
Senior Civil Judge and Commissioner Workman
Compensation, Kalaburagi dated 19.11.2018 has
approached this Court in appeal seeking enhancement of
compensation.
-3-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
02. Heard the learned counsel appearing for the
appellant and the respondent No.2.
03. The factual matrix of the case is that the
petitioner, who is the appellant herein, was the driver of
the Tavera vehicle bearing Reg.No.KA-32-M-9548 owned
by the respondent No.1. As such, he was an employee
with the monthly salary of Rs.8,000/- per month and
Bhatta of Rs.100/- per day. On 14.08.2012 at about 06.45
a.m. while the petitioner was driving the said Tavera
vehicle, he rammed the same into a parked lorry bearing
Reg.No.KA-32-A-8237 near S. N. Hipparga cross. The said
lorry was parked on road as it had broken down. After
investigation, the police have filed the charge-sheet
against the appellant herein for the offences punishable
under Sections 279, 283, 337, 338 and 304(A) of IPC.
Whereas they filed the charge-sheet against the driver of
the lorry for the offence punishable under Section 283 of
the Motor Vehicles Act. The petitioner approached the
Commissioner under the Employees Compensation Act,
-4-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
seeking compensation, since he had suffered fracture of
the humorous and thereby had also sustained permanent
disability.
04. On being served with the notice, the
respondents No.1 and 2, who are the employer and the
insurer appeared before the Commissioner and filed
objections, wherein the respondent No.1 – employer
admitted the relationship of employer and employee and
also admitted that he was paying a salary of Rs.6,000/-
per month and Rs.100/- per day as Bhatta. He contended
that there was no negligence on the part of his employee.
He contended that the owner and insurer of the lorry are
liable to pay the compensation.
05. Whereas the insurance company denied all the
averments of the petition and it also denied the jural
relationship between petitioner and the respondent No.1.
It is also contended that there was negligence on the part
of the petitioner himself. Therefore, it is not liable to pay
the compensation to the petitioner. Inter-aliea the injuries
sustained by the petitioner, nature of the disability etc.,
were also denied.
-5-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
06. On the basis of the above contentions the
Commissioner framed appropriate issues. The petitioner
examined himself as PW.1. The Doctor who assessed
disability was examined as PW.2 and Ex.P.1 to Ex.P.15
were marked in the evidence. The respondent No.1 did not
adduce any evidence. The respondent No.2 examined its
official as RW.1, but no documents were marked.
07. After hearing both sides, the Commissioner
awarded a compensation of Rs.1,87,800/- by considering
the income of Rs.8,000/- per month by adopting the
appropriate factor at 219.95.
08. Being aggrieved by the same, the petitioner is
before this Court in appeal.
09. After hearing the learned counsel appearing for
the appellant the following substantial questions of law
were framed by this Court.
-6-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
I. Whether the Court below was justified in not taking
into consideration the monthly income of the
Appellant at Rs.8,000/- per month and bhatta of
Rs.100- per day which was supported by the oral
evidence of the Appellant, which is quite contrary to
Sections 58, 59 and 60 of the Indian Evidence Act,
1872.?
II. Whether the Court below was justified in taking into
consideration the provisions of minimum wages Act
for calculating the compensation amount as against
the Material Evidence on record for the proof of
actual income of the Appellant.?
III. Whether the Court below was justified in taking into
the consideration of the disability of the Appellant.?
10. The learned counsel appearing for the
respondent No.2 has appeared and records have been
secured.
-7-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
11. The learned counsel appearing for the appellant
would submit that the Commissioner erred in holding that
there is only 10% disability even though PW.2 had stated
that there is a disability of 28.8%. He submits that the
disability of 28.8% has to be attributed towards the
functional disability also in as much as the petitioner was a
driver. PW.2 has stated that he cannot drive a heavy
passenger vehicle or a goods vehicle in future. Therefore,
the Commissioner has erred in assessing the disability in a
proper way.
12. Per contra, the learned counsel appearing for
the respondent No.2 would submit that the Commissioner
has considered the disability in appropriate manner. It is
argued that the Commissioner also noted that the
petitioner can still work as a driver of the Tavera vehicle,
but his future prospects for driving a goods vehicle was
not spoken to by him in his evidence. Therefore, in the
absence of any provision under the scheme of the E.C.
Act, to consider the future prospects, the same is not
permissible.
-8-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
13. The learned counsel appearing for the petitioner
has fairly admitted that the monthly income of the
petitioner considered by the Commissioner at Rs.8,000/-
per month, in the light of the Notification issued by the
Government of India under the provisions of Section 4 of
the Employees Compensation Act, holds good. Therefore,
he is restricting his claim to the monthly wages at
Rs.8,000/- per month.
14. Having heard both sides, the income of the
petitioner considered by the Commissioner at Rs.8,000/-
per month cannot be interfered with in as much as the
provisions of Section 4 of the Act, are clear and for the
purpose of assessing the monthly wages, it is only the
notification which is issued under Section 4 of the Act,
would be relevant. Therefore, either the provisions of the
Minimum Wages Act or any other higher income that
might have been received by the employee are not of any
relevance. In umpteen number of judgments, this Court
has held that irrespective of the income claimed by the
-9-
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
petitioner or admitted by the respondent – employer for
the purpose of calculating the compensation under the
provisions of the E.C. Act, it is only the notification issued
by the Government, which would be relevant. In that view
of the matter, the substantial questions of law No.1 and 2
are answered in the negative.
15. Insofar as the third substantial question of law
is concerned, the PW.2 has categorically stated that there
is a disability of 28.8%. Obviously, the said 28.8%
disability happens to be the disability of the left upper limb
due to fracture of the humorous and would definitely result
in depleted strength of the said limb, which would deprive
the petitioner from driving a heavy goods vehicle. This
functional disability has to be considered by the Court.
16. The Commissioner in the impugned judgment
has opined that the functional disability would be 10%. It
is pertinent to note that 1/3rd of the disability of the limb
translating as a functional disability, would be a proper
course of action when it cannot be easily translated into
– 10 –
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
functional disability. When the PW.2 has stated that the
petitioner is debarred from driving any heavy goods
vehicle, this would definitely result in a functional disability
for the rest of his life. Therefore, in the considered opinion
of this Court, such disability would translate into 15%.
Hence, the compensation is rework out to Rs.8,000/- per
month x 60% x 219.95 x 15% = Rs.1,58,364/- minus
Rs.1,05,600/- awarded by the Commissioner =
Rs.52.764/-. Thus, there shall be an enhancement of
Rs.52,764/- in addition to what has been awarded by the
Commissioner. Consequently, the appeal would succeed in
part. Hence, the following;
ORDER
I. The appeal allowed in part.
II. The appellant is entitled for a sum of Rs.52,764/- in
addition to what has been awarded by the
Commissioner.
– 11 –
NC: 2025:KHC-K:309
MFA No. 200199 of 2019
III. Such enhancement of compensation is ordered to be
released to the petitioner on the deposit made by the
respondent No.2 within a period of 04 weeks.
IV. The other terms of the order regarding interest
remain are unaltered.
Sd/
(C M JOSHI)
JUDGE
KJJ
List No.: 1 Sl No.: 75
CT: AK
[ad_1]
Source link