In the matter of Shivanna @ Shivamurthy vs G M Thippeswamy on 22 November, 2022( M.F.A.NO.2911/2017 (WC)) presided by THE HON’BLE MR. JUSTICE H.P. SANDESH stated that this m.f.a is offered according to article 30 paragraph 1 employees substitute law against judgment and award on 19.01.2016 transferred in eca.no.196/2014 in the file ii additional senior civil judge and cfec, chitradurga, in part allowing the claim petition for compensation.
FACTS OF THE CASE
This appeal is filed against the judgment and award dated 19/01/2016, issued in E.C.A. No. 196/2014, to file II. of the Additional Senior Civil Judge and the CFEC, Chitradurga, (“Commissioner” for short), challenging the quantum of compensation.
The plaintiff contended before the Commissioner that as a result of the accident which occurred on 08.10.2006, he sustained severe injuries as a result of which he is unable to perform the work of an autorickshaw driver. In support of his contention he examined the doctor as P.W.2 who assessed the disability as 25% to 30% and the Commissioner took the disability as 15% and calculated the loss of income with an income of Rs.3000. month and awarded 9% interest and hence this appeal is filed.
The main contention of the learned counsel for the petitioner is that the Commissioner erred in taking the income of Rs.3000/- per month and also erred in taking 15% disability in computing the loss of income and awarding 9% interest from the date of petition. Learned counsel submits that apart from the income of Rs.4000/- per month the plaintiff was also getting Rs.50/- per day of bata and therefore the total income of the plaintiff is Rs.5500/- per month and hence the compensation. must be improved.
On the other hand, the learned counsel for the respondent no.2 submits that no document has been placed before the court that he was earning Rs.5,500/- per month as claimed by the learned counsel for the petitioner. Learned counsel submits that the Tribunal has rightly selected an income of Rs.3,000/- per month and a disability of 15%. However, in fairness, he submits that the interest awarded at 9% per annum is erroneous and interest at the rate of 12% should have been awarded from the date 30 days after the accident.
After hearing the learned counsel concerned and also perusing the material available on record, the plaintiff submits that he was the driver of the rickshaw and while driving the vehicle the accident took place. He also produced the driving license Ex.P.9 to prove his claim. In 2006, when the accident took place, wages were fixed at Rs.4000/- per month by the government and this was not taken into account. The Commissioner has taken the income of Rs.3,000/- per month and therefore the same is erroneous and he should have taken the wages fixed by the State i.e. Rs.4,000/- per month.
The casualty sustained injuries, i.e. contusion and tenderness of the right shoulder and neck, contusion and tenderness on the left side of the chest and laceration on the right side of the scalp. In support of the injury, he examined the doctor as P.W.2 who rated the disability as 25% to 30% and after considering the material on record, particularly the evidence of P.W.2, the Commissioner rated the disability as 15% and therefore I do not find any error committed by Mr. Commissioner when he took 15% disability due to the nature of the injuries he sustained.
Considering revaluation of income at Rs.4,000/- per month and taking 60% of income and disability at 15% and applying factor 219.95, the compensation comes to Rs.79,182. (Rs. 4,000 x 60% x 219.95 x 15%) as against Rs.59,400/-. The Commissioner erred in allowing interest at 9% per annum and where a claim is made under the Workmen’s Compensation Act, the interest would be 12% per annum from the date 30 days after the accident.
The commissioner, in considering liability, ordered the insured to pay compensation only on the ground that the vehicle was driven outside the permitted area. In view of the judgments rendered by this Court in THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., v. SMT. JAYAMMA AND OTHERS reported in ILR 2018 KAR 1849 and in the case of S.N. KENCHANNA v. ANITHA & OTHERS stated in ILR 2018 KAR 3921, in case of deviation it is held that it is not a fundamental breach and it is only a violation. In terms of the principles laid down in the above judgments, the Commissioner erred in assigning the liability at the insured place to the insurance company. The liability of the insured is thus deferred and the liability is fixed on the Insurance Company to pay the compensation.
In view of the above discussions, I submit the following:
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal dated 19.1.2016, passed in E.C.A. No. 196/2014, is modified to provide compensation of Rs.
Rs.59,400/- with interest at 12% per annum from the date of 30 days after the accident.
(iii) The insurance company is directed to pay the compensation amount with interest within six weeks from today.
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JUDGEMENT REVIEWED BY HARSHA L NALWAR