ENOCK BRAGANZ v. GANESH K N & Ors.

(BY SRI.O.MAHESH, ADVOCATE FOR R-2 VIDE ORDER DATED: 15.03.2021, NOTICE TO R-1 IS D/W) - 2 - NC: 2026:KHC:26844 MFA No. 1565 of 2016 HC-KAR THIS MFA IS FILED U/S 30(1) OF WORKMEN COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED18.09.2015 PASSED ON ECA NO.10/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AT KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA ORAL JUDGMENT The matter was referred to mediation. However, the same is not settled between the parties. This appeal is filed by the claimant under Section 30(1) of Workmen Compensation Act, 1923, challenging the judgment and award dated 18.09.2015 passed in ECA No.10/2014 on the file of the Senior Civil Judge, Kundapura (for short “the Tribunal”), whereby the Tribunal awarded compensation of Rs.93,530/- along with interest at the rate of 12% per annum, one month from the date of accident till the date of realization. - 3 - NC: 2026:KHC:26844 MFA No. 1565 of 2016 HC-KAR

2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2- Insurance Company. Issuance of notice to respondent No.1- owner of the vehicle is dispensed with vide Court Order dated 15.03.2021.

3. It is an undisputed fact that it is the case of injured-claimant that he had sustained grievous injuries in an accident that occurred on 09.11.2009 at about 5.00 a.m., near Madagaon, Kadakona, NH-17, Goa

4. The claimant has filed claim petition seeking compensation of Rs.6,00,000/- from the date of petition till the date of realization. The Tribunal considering the entire evidences on record, granted compensation of Rs.93,530/- with interest at the rate of 12% p.a., in favour of the petitioner-claimant from one month from the date of accident till the date of realization. Aggrieved by the said order, the appellant - claimant has preferred this appeal. - 4 - NC: 2026:KHC:26844 MFA No. 1565 of 2016 HC-KAR

5. It is contended on behalf of the appellant- claimant that the impugned judgment and award passed by the Tribunal requires modification. Learned counsel for the appellant contended that the claimant was aged about 43 years and not 45 years. But the Tribunal has erred in taking his age as 45 years instead of 43 years and relevant factor was also not taken. It is further contended that the claimant was earning Rs.5,000/- per month and batta of Rs.50/- per day. But the Tribunal has erroneously considered the income of the claimant at Rs.4,000/- per month. It is contended that the appellant-claimant has sustained disability of 29% to the right lower limb and 9% to the left upper limb but the Tribunal has taken the disability at 23% and thus, the learned counsel for the appellant seeks for enhancement of the compensation.

6. Per contra, learned counsel for respondent No.2-Insurance Company contended that basing on the evidence on record, the appellant – claimant was continuing his work even after the accident. Therefore, the - 5 - NC: 2026:KHC:26844 MFA No. 1565 of 2016 HC-KAR disability assessed by the Tribunal is incorrect. He further contended that the Tribunal has rightly considered the age based on the wound certificate and the income of the claimant was also rightly considered as per the G.O. MS -

7. I have considered the rival submissions made by parties and perused the material on record.

8. Admittedly, the accident occurred in the year 2009 and the appellant-claimant was working as a Driver in a Lorry bearing registration No.KA-15-4755. As per G.O. MS- 2009, this Court finds it reasonable to take his income as Rs.8,000/- per month. Since it is a case of injury, 60% of the income has to be taken and 60% of Rs.8,000/- comes to Rs.4,800/- per month.

9. Learned counsel the appellant has contended in the petition that the age of the appellant at the time of the accident was 43 years but in the wound certificate produced by the appellant it is mentioned as 45 - 6 - NC: 2026:KHC:26844 MFA No. 1565 of 2016 HC-KAR years. Accordingly, the Tribunal has rightly considered the age of the claimant as 45 years based on the wound certificate, which is a documentary evidence. Therefore, this Court finds no reason to interfere with the same.

10. As the appellant-claimant was aged about 45 years, the relevant factor of 169.44 has to be taken. The Tribunal has correctly taken the relevant factor as 169.44 and this Court finds no reason to interfere with the same.

11. The Doctor who examined the appellant is examined as PW-2. The appellant has met with an accident and sustained the following injuries:  1 cm shortening in the right lower limb.  50% reduction in the right ankle movement.  Grade IV power in right knee and ankle movements.  30% reduction in the grip and pinch strength in the left hand.  Left distal radius is united.  Right tibia and fibula have united. - 7 - NC: 2026:KHC:26844 MFA No. 1565 of 2016 HC-KAR He has stated that there is 29% disability to the right lower limb and 9% to the left upper limb. The total limb disability comes to 38%. The Tribunal after considering the fact that he was a driver of the vehicle, has rightly taken the disability at 23%. This Court finds no reason to interfere with the same.

12. Therefore, the total compensation comes to Rs.4,800 x 169.44 x 23% = Rs.1,87,062/-. Hence, the compensation enhanced from Rs.93,530/- Rs.1,87,062/- with interest at 12% per annum one month from the date of the accident till realization.

13. The Insurance Company has already deposited the compensation/amount awarded by the Tribunal. Therefore, is directed to deposit the enhanced compensation of Rs.93,532/- (Rs.1,87,062/- - Rs.93,530/-) with interest at the rate of 12% p.a. Accordingly, I pass the following: - 8 - NC: 2026:KHC:26844 MFA No. 1565 of 2016 HC-KAR ORDER i) The appeal is hereby partly allowed. ii) The impugned judgment and award dated

18.09.2015 passed in ECA No.10/2014 on the file of the Senior Civil Judge, Kundapura, is hereby modified. iii) The appellant-claimant is entitled to modified compensation of Rs.1,87,062/- which shall carry interest at 12% p.a. iv) The Insurance Company is directed to deposit the balance amount/compensation of Rs.93,532/- along with interest at 12% per annum, within a period of one month from the date of this order. v) On such deposit, the claimant is permitted to withdraw the same along with the accrued interest. BMC: List No.: 1 Sl No.: 15 Sd/- (P SREE SUDHA) JUDGE