The Divisional Manager New India Assurance Company Ltd., Represented by Its Divisional Manager Martadappa and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1106381
CourtKarnataka Dharwad High Court
Decided OnJan-03-2013
Case NumberMiscellaneous First Appeal No. 20671 of 2009 (WC)
JudgeARAVIND KUMAR
Excerpt:
workmen's compensation act - section 30(1) -(prayer: this miscellaneous first appeal is filed under section 30(1) of the workmen's compensation act against the judgment and order dated 18.11.2008 passed in wca/nf no.111/2005 on the file of labour officer and commissioner for workmen's compensation tribunal, haveri district, haveri awarding compensation of rs.1,37,636/- along with interest at the rate of 12% p.a. from the date of petition till deposit.) 1. insurer is in appeal challenging the award passed by the workmen's compensation commissioner in w.c.a/nf no.111/2005 dated 18.11.2008 whereunder claim petition has been allowed in part and a compensation of rs.1,37,636/- with interest at 12% p.a. payable after one month from the date of award has been called in question. 2. heard learned advocates appearing for the parties. perused the certified copies of the records produced by parties before workmen's compensation commissioner which was made available by the learned counsel for appellant. 3. it is the contention of sri.g.n.raichur that tribunal committed a serious error in construing the loss of earning capacity of the claimant at 30% when the doctor himself has stated that particular limb disability is to the extent of 30% and there being no evidence on record to establish the proportionate loss of earning capacity of the claimant and as such he contends that tribunal committed an error in awarding compensation on the said basis and same is not in consonance with section 4(1)(c)(ii) of the workmen's compensation act. 4. per contra, sri.hanumant latur, learned counsel appearing for respondent/claimant would support the award passed by commissioner and also submits that interest awarded is erroneous and claimant is entitled for interest from 30 days after the date of accident and not as ordered by commissioner and seeks for modification of the award suitably in exercise of appellate power under order xli rule 33 of cpc. 5. having heard the learned advocates appearing for parties, i am of the considered view that following substantial questions of law would arise for consideration: "(i) whether the commissioner was justified in accepting 30% disability as assessed by the doctor to the particular limb would be the proportionate loss of earning capacity to the claimant? and, if not, what is the extent of loss of earning capacity that is required to be adopted for the purposes of awarding compensation to the claimant? (ii) from what date claimant is entitled for interest?" 6. accident in question, issuance of policy to the offending vehicle and the nature of injuries sustained by the claimant are not in dispute. while adjudicating the claim filed under workmen's compensation act in respect of non scheduled injuries two important factors are to be kept in mind by the adjudicating authority namely the loss of earning capacity assessed by the doctor or by a qualified medical practitioner with reference to permanent total disablement or disability suffered by claimant and the assessment by the commissioner thereof. 7. now let me examine as to whether these two ingredients are adhered to by the commissioner in the instant case. perusal of the award would disclose that the commissioner has taken note of the evidence tendered by the doctor namely dr.g.shivappa who was examined on behalf of the claimant and who has issued the disability certificate and who admittedly is not the doctor who treated the claimant to award the compensation. the disability certificate is at exhibit p-5. accident in question occurred on 03.06.2005. pw-2 doctor has examined the claimant on 25.09.2006 i.e., after lapse of one year three months. examination of claimant is both clinical and radiological. he has opined, on radiological examination he found fracture of (l) calcaneium is united. he has also opined that total permanent disability is about 30%-35%. he does not state that said percentage of disability has resulted in same proportion there is loss of earning capacity to the claimant. in the cross examination of the doctor it has been elicited by the insurer that fracture is united as disclosed from the x-ray film and the disability as assessed by him relates to particular limb disability and not whole body disability. it is also further elicited that percentage of whole body disability would get reduced with reference to the limb disability as assessed by him. in this background of medical evidence tendered by the claimant the option left open to the commissioner was to either subject the claimant for further evaluation if he was not satisfied with the medical evaluation made by the doctor or the claimant could have himself tendered further evidence in this regard. the commissioner under the act cannot assess the loss of earning capacity without assistance of the assessment made by a qualified medical practitioner regarding loss of earning capacity and in this regard assessment made by qualified medical practitioner would be most relevant. thus, the evidence of a qualified medical practitioner namely the assessment by such medical practitioner would have a direct bearing and impact on assessment of computation of compensation that may be payable to a claimant in respect of a claim arising under workmen's compensation act. as noticed from the medical evidence available on record doctor has assessed the claimant's disability to the particular limb at 30%. the fracture was to the left heel ankle joint. the whole body disability would be 1/3rd of particular limb disability as per guidelines issued under alimnco book. in the instant case particular limb disability is assessed as 30% and as such whole body disability would naturally be 10%. considering the nature of work the claimant was carrying on namely as a cleaner in a lorry it can be safely concluded that loss of earning capacity of the claimant would get reduced to an extent of 10% or functional disability would be to an extent of 10%. this assessment is being done particularly in the absence of any other positive material placed on record by parties. thus, compensation to be awarded to claimant requires to be recomputed since appeal being continuation of original proceedings and as such computation is recomputed as follows: 60% of 3,000 = 2,100x10/100 = 210x218.47= rs.45,878/-. it is this compensation to which the claimant would be entitled to towards "proportionate loss of earning capacity", as against compensation of rs.1,37,636/- awarded by the commissioner. accordingly point no.1 is answered in favour of the appellant- insurance company partly. re: point no.2: said issue is no more res integra. in the case of oriental insurance company vs siby george reported in 2012 acj 2126 it has been held by the hon'ble apex court that claimant would be entitled to interest from 30 days after the accident. accordingly point no.2 is answered in favour of respondent-claimant and against appellant-insurer. hence, the following:order 1. appeal is hereby allowed in part. 2. order and award passed in w.c.a/nf no.111/2005 dated 18.11.2008 is hereby modified and held that respondent-claimant would be entitled to compensation of rs.45,878/- with interest at 12% p.a. from 30 days from the date of accident till payment or deposit whichever is earlier. registry shall transmit the amount of rs.45,878/- together with interest @ 12% p.a. calculated as ordered hereinabove to the jurisdictional commissioner for workmen's compensation forthwith and refund the balance amount to appellant -insurance company on proper identification. ordered accordingly.
Judgment:

(Prayer: This miscellaneous first appeal is filed under Section 30(1) of the Workmen's Compensation Act against the judgment and order dated 18.11.2008 passed in WCA/NF No.111/2005 on the file of Labour Officer and Commissioner for Workmen's Compensation Tribunal, Haveri District, Haveri awarding compensation of Rs.1,37,636/- along with interest at the rate of 12% p.a. from the date of petition till deposit.)

1. Insurer is in appeal challenging the award passed by the Workmen's Compensation Commissioner in W.C.A/NF No.111/2005 dated 18.11.2008 whereunder claim petition has been allowed in part and a compensation of Rs.1,37,636/- with interest at 12% p.a. payable after one month from the date of award has been called in question.

2. Heard learned advocates appearing for the parties. Perused the certified copies of the records produced by parties before Workmen's Compensation Commissioner which was made available by the learned counsel for appellant.

3. It is the contention of Sri.G.N.Raichur that Tribunal committed a serious error in construing the loss of earning capacity of the claimant at 30% when the doctor himself has stated that particular limb disability is to the extent of 30% and there being no evidence on record to establish the proportionate loss of earning capacity of the claimant and as such he contends that Tribunal committed an error in awarding compensation on the said basis and same is not in consonance with section 4(1)(c)(ii) of the Workmen's Compensation Act.

4. Per contra, Sri.Hanumant Latur, learned counsel appearing for respondent/claimant would support the award passed by Commissioner and also submits that interest awarded is erroneous and claimant is entitled for interest from 30 days after the date of accident and not as ordered by Commissioner and seeks for modification of the award suitably in exercise of appellate power under Order XLI Rule 33 of CPC.

5. Having heard the learned advocates appearing for parties, I am of the considered view that following substantial questions of law would arise for consideration:

"(i) Whether the commissioner was justified in accepting 30% disability as assessed by the Doctor to the particular limb would be the proportionate loss of earning capacity to the claimant? And, if not, what is the extent of loss of earning capacity that is required to be adopted for the purposes of awarding compensation to the claimant?

(ii) From what date claimant is entitled for interest?"

6. Accident in question, issuance of policy to the offending vehicle and the nature of injuries sustained by the claimant are not in dispute. While adjudicating the claim filed under Workmen's Compensation Act in respect of non scheduled injuries two important factors are to be kept in mind by the adjudicating authority namely the loss of earning capacity assessed by the doctor or by a qualified medical practitioner with reference to permanent total disablement or disability suffered by claimant and the assessment by the Commissioner thereof.

7. Now let me examine as to whether these two ingredients are adhered to by the Commissioner in the instant case. Perusal of the award would disclose that the Commissioner has taken note of the evidence tendered by the doctor namely Dr.G.Shivappa who was examined on behalf of the claimant and who has issued the disability certificate and who admittedly is not the doctor who treated the claimant to award the compensation. The disability certificate is at Exhibit P-5. Accident in question occurred on 03.06.2005. PW-2 Doctor has examined the claimant on 25.09.2006 i.e., after lapse of one year three months. Examination of claimant is both clinical and radiological. He has opined, on radiological examination he found fracture of (L) calcaneium is united. He has also opined that total permanent disability is about 30%-35%. He does not state that said percentage of disability has resulted in same proportion there is loss of earning capacity to the claimant. In the cross examination of the doctor it has been elicited by the insurer that fracture is united as disclosed from the X-ray film and the disability as assessed by him relates to particular limb disability and not whole body disability. It is also further elicited that percentage of whole body disability would get reduced with reference to the limb disability as assessed by him. In this background of medical evidence tendered by the claimant the option left open to the Commissioner was to either subject the claimant for further evaluation if he was not satisfied with the medical evaluation made by the doctor or the claimant could have himself tendered further evidence in this regard. The Commissioner under the Act cannot assess the loss of earning capacity without assistance of the assessment made by a qualified medical practitioner regarding loss of earning capacity and in this regard assessment made by qualified medical practitioner would be most relevant. Thus, the evidence of a qualified medical practitioner namely the assessment by such medical practitioner would have a direct bearing and impact on assessment of computation of compensation that may be payable to a claimant in respect of a claim arising under Workmen's Compensation Act. As noticed from the medical evidence available on record doctor has assessed the claimant's disability to the particular limb at 30%. The fracture was to the left heel ankle joint. The whole body disability would be 1/3rd of particular limb disability as per guidelines issued under ALIMNCO book. In the instant case particular limb disability is assessed as 30% and as such whole body disability would naturally be 10%. Considering the nature of work the claimant was carrying on namely as a cleaner in a lorry it can be safely concluded that loss of earning capacity of the claimant would get reduced to an extent of 10% or functional disability would be to an extent of 10%. This assessment is being done particularly in the absence of any other positive material placed on record by parties. Thus, compensation to be awarded to claimant requires to be recomputed since appeal being continuation of original proceedings and as such computation is recomputed as follows: 60% of 3,000 = 2,100x10/100 = 210x218.47= Rs.45,878/-. It is this compensation to which the claimant would be entitled to towards "proportionate loss of earning capacity", as against compensation of Rs.1,37,636/- awarded by the Commissioner. Accordingly point No.1 is answered in favour of the appellant- insurance company partly.

RE: POINT NO.2:

Said issue is no more res integra. In the case of Oriental Insurance Company Vs Siby George reported in 2012 ACJ 2126 it has been held by the Hon'ble Apex Court that claimant would be entitled to interest from 30 days after the accident. Accordingly point No.2 is answered in favour of respondent-claimant and against appellant-insurer.

Hence, the following:

ORDER

1. Appeal is hereby allowed in part.

2. Order and award passed in W.C.A/NF No.111/2005 dated 18.11.2008 is hereby modified and held that respondent-claimant would be entitled to compensation of Rs.45,878/- with interest at 12% p.a. from 30 days from the date of accident till payment or deposit whichever is earlier.

Registry shall transmit the amount of Rs.45,878/- together with interest @ 12% p.a. calculated as ordered hereinabove to the jurisdictional Commissioner for Workmen's Compensation forthwith and refund the balance amount to appellant -insurance company on proper identification.

Ordered accordingly.