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Judgment
N. Ananda
Insurance Company has filed this appeal. I have heard Sri. Hegde Mulkhand, learned counsel for the Insurance Company and the learned counsel for claimant.
The learned counsel for Insurance Company has made the following submissions.
i) There was no relationship of employee and employer between the claimant and insured. Therefore, Insurance Company is not liable to pay compensation.
ii) Permanent physical disability resulting in loss of earning capacity to the extent of 5% assessed by the Commissioner for Workmen''s Compensation is contrary to the medical evidence and reasons assigned by the Commissioner for Workmen''s Compensation are untenable.
iii) Commissioner for Workmen''s Compensation should have determined the wages of claimant at Rs. 3,000/- per month.
3 Learned counsel for the claimant would justify the impugned award.
4 It is seen from evidence on record that claimant suffered injuries when he was engaged for loading and unloading sugarcane in the insured vehicle. In the objection statement filed by Insurance Company before the Commissioner for Workmen''s Compensation, the Insurance Company has not taken a contention that claimant was not an employee of insured and therefore, Insurance Company is not liable to pay compensation. Therefore, the Insurance Company cannot be permitted to raise such a contention for the first time before the Appellate Court. Even otherwise, I find that the claimant was an employee of the insured. He was a loader and unloader of insured vehicle. Whether he was employed by insured or by driver of vehicle may not be of any significance, particularly when claimant has proved that he suffered injuries when he was working as a loader of insured vehicle.
5 As per medical evidence, claimant had suffered the following injuries.
i) Type I compound fracture of both bones of left leg at the junction of middle and lower one third;
ii) Fracture of medical melleolus of left ankle;
iii) Fracture of 3rd and 4th metatarsal bones of the foot, and;
iv) Dislocation of metatarsophalangeal joint of 3rd toe. All the above said injuries are treated conservatively except fracture of medical malleolus.
The Medical Officer, on subsequent examination, had noticed following disabilities.
i) Tenderness of left leg, knee, ankle and foot region, difficulty to stand, walk and weight bear on left leg, difficulty to sit cross legged, to squat, to use Indian type toilet, to climb up and down the stair case, to run, to ride a cycle. Wasting of muscles of left leg 3 cms. (32-29 cms), left thigh 3 cms. (44-41 cms), cannot stand on forefoot as all the toes are crowded together, 3rd tow is pushed towards the ground and touching the floor and the remaining toes are lifted above the level of 3rd toe. 6+8+8+5=27% (b),
ii) Range of movements of left ankle joint plantar flexion and dorsiflexion (0 degree - 80 degree) 45,
iii) Inversion and eversion (0 degree to 45 degree) 15,
iv) Forefoot adduction and abduction (0 degree - 15) Nil,
v) 53% loss of ROM x 0-3-15.9%,
vi) Strength or power of the muscles acting on left ankle joint is about 3/5 (5/5), 40% of loss of muscle power x 0.3 = 12%.
On radiological examination, he noticed that the left foot with ankle shows:
i) Old fracture medial melleolus with orthopaedic implant in-situ - Non-union.
ii) Old fracture 3rd and 4th metatarsal left footnoted.
iii) Dislocation of metatarsophalangeal joint of 3rd toe noted.
iv) Loss of joint space between tarsometatarsal joints of all toes noted.
The Medical Officer, on consideration of all these aspects, has assessed permanent physical disability of left lower limb at 46.5% and of whole body at 23%. The Commissioner for Workmen''s Compensation has assessed permanent physical disability at 55%. The Commissioner for Workmen''s Compensation should have assigned reasons for such assessment. The fact remains that claimant suffered major fractures and even after complete treatment, he is suffering from permanent physical disability and there are restrictions in the movements of right ankle joint and knee joint. The claimant was, sustaining by doing physical labour and therefore, I am of the considered view that the permanent physical disability has to be determined at 40%.
The learned counsel for the Insurance company submits that the wages of the claimant should have been determined at Rs. 3,000/- per month. As the claimant was working as a loader and unloader, which involves physical labour and the accident took place on 30.5.2007, determination of wages of claimant at Rs. 4,000/- can not be termed as excessive. The other facts not being in dispute, the claimant is entitled to compensation of Rs. 1,89,177/- (Rs. 2,400/- x 197.06 x 40%). Hence, I pass the following order:
i) The appeal is accepted in part.
ii) The compensation of Rs. 2,60,119/-awarded by the Commissioner for Workmen''s Compensation, Bangalore, in WCA/BEM-2/NFC/CR : 17/2007 is reduced to Rs. 1,89,177/-with interest at 12% per annum after 30 days from the date of accident till the date of deposit/payment.
iii) The amount deposited by the Insurance Company shall be transferred to the Commissioner for Workmen''s Compensation, Bangalore.
iv) If the amount deposited by the Insurance Company is in excess of what has been awarded herein, the same shall be refunded to the Insurance Company.