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Judgment
S.N. Satyanarayana, J.—These two appeals are filed by the Insurance Company challenging the quantum of compensation awarded in a common judgment dated 12.12.2006 in KAD/KNP/CR. No. 70/02 and KAD/KNP/CR No. 137/2002 by the Commissioner for Workmen Compensation, Chitradurga.
2 The facts leading to these appeals are that, the claimants in the two claim petitions, who are respectively 1st respondent in both the appeals, were admittedly working as coolies under the 2nd respondent and at the relevant point of time were loaders in mini lorry bearing No. KA-16/6362 belonging to the 2nd respondent. On 24.10.2001 they were entrusted the work of traveling in the said lorry to Neralakunte Village to unload the granite carried in the said mini lorry. That at around 2 ''o clock in the mid night when they were unloading the granite, due to negligence on the part of the driver, the lorry was moved resulting in the granite slab falling on the hand and feet of the aforesaid two claimants resulting in injury to one on his left ulna and injuring the small toe of the right foot of another one. The claimants having suffered the said injuries filed claim petitions before the Commissioner for Workmen''s Compensation, Chitradurga seeking compensation as permissible under the provisions of Workmen Compensation Act.
In the said proceedings, the owner and insurance company entered appearance. The 2nd respondent - owner admitted the relationship of employer and employee between the claimants and himself and the insurance company denied the same and the accident and the consequent injuries suffered by the claimants.
In support of their claim both the claimants adduced evidence by themselves and also adduced evidence of a Doctor by name N. Venkatasiva Reddy, an Orthopaedic surgeon practicing at "Sri Venkateshwara Nilaya, Akashavani Road, Behind Unity Health Complex, C.K. Pura Extn., Chitradurga 577 501." The said Doctor has given a detailed certificate certifying the extent of injury suffered by the claimants.
Admittedly, the accident has taken place on 24.10.2001 arid the claimants have taken treatment in Government Hospital Whereas, after filing of the claim petitions, before adducing evidence, both claimants have got themselves examined by this Doctor on 2.6.2003 in the case of Namdev and on 15 7.2003 in the case of Gurumurthy, got the disability certificate from the said Doctor, produced the same into the Court and also got him examined as witness in support of their claim. Based on the evidence given by the said Doctor, the Commissioner for Workmen''s compensation held that both the claimants have suffered disability to an extent of 25% to the whole body and also to their earning capacity and consequently, allowed the claim petitions awarding compensation in a sum of R. 77,993/- to each of them payable with interest at 12% p.a., from 30th date of the accident till date of payment of the same. The Insurance Company being aggrieved by the same has challenged the said order and award of the Commissioner for Workmen''s Compensation in these two appeals.
Though the insurance company has filed two different appeals in respect of the common order and award, both the appeals are taken up together for disposal.
In these appeals, since the liability of the insurance company was admitted notice to the 2nd respondent - owner was dispensed with. It is only the claimants, 1st respondent in both the appeals who are contesting the appeals, are duly served.
On going through the pleadings, order and award and the documents available on record, the points that arise for consideration in this appeal are,
1) Whether the Commissioner for Workmen''s Compensation was justified in holding that the disability suffered by the claimants in both the appeals is at 25% and the disability to earning capacity at 25% in the light of the evidence available on record?
2) Whether the interest awarded at the rate of 12% from 30th date of the accident till date of payment is proper or otherwise?
After hearing the Counsel for the parties and on reappreciation of the evidence on record, this Court answer both points in negative for the following reasons:
In case of Namdev i.e., MFA. No. 2833/2007 the injury suffered by him is fracture to ulna. The x-ray produced by him, which is at Ex.A5, clearly discloses the union of fracture suffered by him. The evidence given by Dr. N. Venkatasiva Reddy - PW.3 is contrary to the documents available on record. Though the x-ray does not disclose mal-union of the fracture, PW.3 has given evidence to say that there is mal-union. He has also stated that the disability to the said portion is 30% and to the whole body and to the earning capacity is to the extent of 25%, which is contrary to the guidelines issued by the AIMS Manual, which says in the normal circumstance as against, the disability to the injured limb the whole body disability or disability to earning capacity will be 1/3rd of the disability suffered by the injured to the particular limb. In the instant case, the Doctor has deliberately and consciously given a wrong opinion, so as to unduly enrich the claimant. Interestingly in respect of the evidence that is given in the case of Gurumurthy against whom MFA. No. 2834/2007 is filed who has suffered injury only to the small toe of right foot, the said Doctor has given an opinion that there is disability to the injured portion to an extent of 30% and the earning capacity corresponding to the disability to the whole body is 25%. It is necessary at this juncture to say that Schedule I Part II of Workmen''s Compensation Act clearly disclose the extent of disability that could be fixed in respect of the injury to any other toes would be 3% to the particular limb and in respect of Ulna, it would be 10%. So far as the Doctor''s evidence is concerned, it is 25%, which is totally disproportionate to the extent of disability as specified in the schedule. It is also necessary at this juncture to place on record that not only in this case but, in several other cases where the said Doctor, Dr. N. Venkatasiva Reddy and several other Doctors are in the habit of issuing disability certificates contrary to the medical records of the injured claimants and are also in the habit of stepping into witness box and giving evidence exaggerating the injury and consequential disability suffered by the injured. In the instant case, Dr. Venkatasiva Reddy has deliberately and consciously exaggerated the percentage of disability said to have suffered by the claimants with a sole intention of securing them higher percentage of compensation and to the detriment of insurance company. It is this conduct and behavior of the said Doctor should be deprecated and placed on record.
Therefore, in the light of the above discussion, it is seen that the disability and the loss of earning capacity as quantified by the Commissioner for Workmen''s Compensation requires to be revised.
In the light of the evidence on record, in the case of Namdev since the disability to the injured limb being 30% the disability to earning capacity suffered by him is to an extent of 10% only instead of 25% assessed by the Commissioner for Workmen''s Compensation. Accordingly, Namdev, 1st respondent in MFA. 2833/2007 is entitled to compensation as under:
2500 � 60/100 � 10/100 � 207.98 = 31,197/-
So far as the claim made by Gurumurthy, 1st respondent in MFA.2834/2007 is concerned, the injury suffered by him is schedule injury, the disability to his earning capacity is only 5% as against 25% assessed by the Commissioner for Workmen''s Compensation. Accordingly, he is entitled to compensation as under:
2500 � 60/100 � 5/100 � 207.98 = 15,598.50
So far as the interest portion is concerned, the Commissioner has awarded interest at the rate of 12% from 30th date of the accident till date of payment. However, in the light of the judgment rendered by the Apex Court in the matter of Oriental Insurance Co. Ltd. v. Mohd. Nasir and Anr. reported in 2009 AIR SCW 3717, the interest that could be awarded is at 7.5% from the date of petition till date of award and at 12% from the date of award till date of realisation.
Accordingly, the appeals filed by the insurance company are partially allowed modifying the quantum of compensation payable in MFA. No. 2833/2007 from Rs. 77,993/- to Rs. 31.193/- and in MFA. No. 2834/2007 from Rs. 77,993/- to Rs. 15.598.50/- both payable with interest at 7.5% from the date of petition till date of order and at 12% from the date of award till date of realisation. The parties are directed to bear their own costs.
The learned Counsel for the appellant in both the appeals submits that the entire award amount is deposited into the Court.
The claimants in both the appeals are entitled to receive the modified award amount with up to date interest from the amount already deposited by the appellant - insurance company. The entire compensation amount be released to claimants. The balance amount shall be released in favour of the appellant - insurance company in both the appeals.