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Judgment
K. Govindarajulu
The respondent no.2 in WCA. SR. No. 206/2006 on the file of the Commissioner for Workmen''s Compensation, Sub-division no. 2, Belgaum is the appellant. The parties will be referred according to their ranking before the Commissioner for convenience.
The facts necessary for the consideration of the appeal are as follows:
The claimant in his claim application pleads that he was working as a cleaner in the Luxury bus bearing registration No. KA22-B-9889 belonging to Abdul Rasheed Mujawar. While so working in the course of employment on 1.4.2006, on account of the negligent driving by the driver of the bus, the wheel of the bus ran over the left leg of the claimant. So, he sustained fracture of the lower end of tibia of the right leg. For the agony suffered on account of the non-specified injury pleads for compensation.
The Insurance Company has entered appearance denied the liability called upon the petitioner to Prove the accident its impact. The Commissioner after recording of evidence has accepted the case of the claimant, fixed the compensation of Rs. 1,52,806/-.
The finding of the Commissioner is challenged in this appeal. The learned Advocate for the appellant -Insurance Company substantiates the case of the appellant with the following submissions:
Injury is said to have occurred in the course of employment which is non-specified injury. The Doctor has certified the disability of the right leg to the extent of 35%. While so, the Commissioner has taken the disability at 45% which is not called for. In regard to the non-specified injuries, when there is a disability to a limb, it has to be calculated to the whole body and then a finding has to be recorded. Also contend that the interest granted is excessive, so, pray for allowing the appeal.
On the other hand, the learned Advocate for the claimant supports the reasoning of the Commissioner, contend that it is the capacity to do the work which is the criteria and that is taken note by the Commissioner, so also the mandate u/s 4 of the Workmen''s Compensation Act is taken note by the Commissioner. The legislation is a social welfare legislation strict interpretation as the one substantiated by the learned Advocate for the Insurance Company is not apt. So, pray for dismissal of the appeal.
A careful consideration of the material submissions probablize the accident is admitted. The first contention is in regard to the assessment of disability. The Doctor has assessed the disability at 35% in the course of his evidence referring to the fracture of tibia of the right leg. But the Commissioner in page no.5 of his discussion has assessed the disability at 45%. In the entire discussion, he refers to the wound certificate and the disability found in the evidence of the Doctor do not substantiate as to whether there is loss of earning capacity, incapacity in discharging the duty as a cleaner. So, the reasoning of the learned Commissioner cannot be accepted as the disability assessed by the Doctor is 35% for the limb, calculation of 1/3 to whole body disability will be 12%. Looking to the occupation involving the manual work, it is appropriate to assess the disability at 22 1/2 % that is half of what is assessed by the Commissioner. So, the Court is obliged to fix the compensation in regard to the non-specified injury referred to supra at Rs. 76,403/-. In regard to the quantum of interest, mandate u/s 4 is to award interest from 30 days of the incident. But to claim for compensation is the criteria. It is not the case of the claimant that even before filing of the claim application before the Commissioner, a request is made to the owner simultaneously to the insurer calling upon them to pay the compensation. So, the mandate u/s 4 of the Workmen''s Compensation Act is not attracted, as it is a case of compensation it becomes payable only after it is quantified, it being quantified by the order of the Commissioner from the date of the order, the claimant is entitled for interest, i.e., interest at 12% be calculated from the date of order. So, the grant of interest by the Commissioner is also set aside to the extent narrated supra. So, the appeal is allowed in part. The amount in deposit be transferred to the Commissioner for payment.