(Prayer: This MFA is filed u/S 30(1) of W.C. Act against the judgment and award dated 07.09.2017 passed in Eca.No.55/2016 on the file of the XXI Additional Small Causes Judge and XIX ACMM, Member-MACT, Bengaluru (SCCH-23), allowing the claim petition for compensation and etc,.
Oral Judgment
1. This appeal is filed by the injured - claimant challenging the judgment and award dated 07.09.2017 passed in ECA.No.55/2016 by the XXI Additional SCJ and XIX ACMM, Member MACT, Bangalore, (SCCH-23), (for short, 'Commissioner').
2. Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.
3. Sri. Shirpad V Shastri, learned counsel appearing for the appellant submits that this appeal is filed being aggrieved by the assessment of the disability by Commissioner to the extent of 14.84%, which is contrary to the evidence of PW.2 and other medical evidence on record. It is submitted that, the oral evidence of PW.2 clearly indicates that, the appellant sustained serious injuries and he is unable to continue this vocation as he was working as a driver. Hence, he seeks to re-assess the disability by allowing the appeal.
4. Per contra, Sri. Lakshminarayana. C, learned counsel for respondent No.2 - insurance company supports the impugned judgment and award of the Commissioner and submits that the Commissioner considered 1/3rd of the assessment of disability of PW.2 to a particular limb and awarded a just compensation and needs no interference. Hence, he seeks to dismiss the appeal.
5. I have heard the arguments of learned counsel for the appellant and learned counsel for respondent No.2 and meticulously perused the material available on record.
6. The appellant as well as the respondents do not dispute that, the appellant on 02.07.2015 sustained injuries. It is not in dispute between the parties that, the injuries suffered are during course of employment and the respondents are liable to make good the compensation to the appellant for the injuries sustained.
7. Perusal of the evidence of the injured, PW.2 - doctor, wound certificate and the discharge charge summary which are on record indicate that the appellant sustained injuries like the fracture femoral condyle left side, blunt injury abdomen, fracture right iliac crest and left kidney injuries. The records indicate that, PW.2 has clearly deposed before the Commissioner that the appellant complained that he is unable to sit on the floor, inability to sit crossed-leg, inability to climb the stairs that he used to climb prior to the accident, difficulty in standing for long time, there is difficulty in movement of his limbs and he is unable to carry out his vocation. Taking note of the fact that, the injuries suffered are to the limb, abdomen and also to the kidney, I am of the considered view that, the Commissioner has committed an error in considering 1/3rd of the assessed disability. Taking note of the nature of injuries suffered and evidence on record, I am of the view that, the disability of the appellant is required to be re-assessed at 23% as per the evidence on record for the purpose of determination of compensation.
8. Insofar as award of compensation by the Commissioner by considering the income, the relevant factor is unalterable. The compensation is re-determined as under:
(8,000 X 60%) =4,800/-
4,800/- X 186.90 X 23% =2,06,337.6/-.
9. Thus, the appellant-claimant would be entitled to modified compensation as under:
| HEADS | AMOUNT (in Rs.) |
| Compensation | 2,06,337.6 |
| Medical expenses | 10,759/- |
| Attendant, food and nourishment charges | 25,000/- |
| Total | 2,42,096.6/- |
11. In the result, this Court proceeds to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment and award dated 07.09.2017 passed in ECA.No.55/2016 by the Commissioner is modified to an extent that the appellant-claimant would be entitled to total compensation of Rs.2,42,096.6/- as against Rs.1,68,892/- awarded by the Tribunal.
iii) The enhanced compensation shall carry interest at the rate of 12% p.a. from the date of petition till its realisation.
iv) Respondent Nos.1 and 2 are jointly and severely liable to pay the compensation amount to the appellant - claimant.
v) Respondent No.2 - insurance company is directed to deposit the compensation amount before the Tribunal within a period of one month from the date of receipt of certified copy of this judgment.
vi) The rest of the judgment and award of the Tribunal with respect to apportionment, deposit and release shall remain unaltered.
vii) Draw modified award accordingly.