- 1 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 26TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. JOSHI MISCL. FIRST APPEAL NO.201263/2021(ECA) BETWEEN: MANIK @ MANIKAPPA S/O SHARANAPPA GOLLUR, AGE: 42 YEARS, OCC: CLEANER OF TRUCK BEARING NO.KA-32/D-1603, NOW NIL, R/O. BELUR (J), TQ. & DIST. KALABURAGI-585 101. …APPELLANT (BY SRI BABU H. METAGUDDA, ADVOCATE) AND: 1. NAGANNA S/O DHULAPPA, AGE: 34 YEARS, OCC: OWNER OF TRUCK BEARING NO.KA-32/D-1603, R/O BELUR (J), TQ. & DIST. KALABURAGI-585 101, (OWNER CUM DRIVER). 2. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., 1ST FLOOR, SANGAMESHWAR COLONY, KALABURAGI-585 101. …RESPONDENTS (BY SRI RAHUL R. ASTURE, ADVOCATE, FOR R2; R1-V/O DTD. 28.01.2022, NOTICE IS DISPENSED WITH) Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF EMPLOYEES’ COMPENSATION ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 17.03.2020 PASSED IN ECA NO.03/2019 BY THE I ADDL. SENIOR CIVIL JUDGE AND COMMISSIONER FOR WORKMAN COMPENSATION, KALABURAGI, BY ENHANCING THE COMPENSATION FROM RS.1,14,700/- WITH 12% INTEREST TO RS.12,50,000/- WITH 12% INTEREST. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C.M. JOSHI) 1. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondents and perused the materials available on record. 2. This appeal is by the petitioner-claimant against the impugned judgment and award dated 17.03.2020 passed in ECA No.3/2019 by the I Additional Senior Civil Judge, Kalaburagi, (for short ‘the Tribunal’), seeking enhancement of compensation amount. - 3 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 3. The substantial questions of law that has been raised in this appeal read as under: “(1) Whether the Commissioner is justified in taking the wages of petitioner at Rs.7,000/- per month, even though the notification under Section 4(1-B) of the E.C. Act prescribes Rs.8,000/- as wages? (2) Whether the Commissioner is justified in taking disability at 6% per annum even though the Medical practitioner has assessed the disability at 18%?” 4. It is the case of the petitioner that he was Cleaner on lorry bearing No.KA-32/D-1603 and when the rope which was kept in the cabin was falling down he tried to put it back and when the vehicle moved, he fell down and sustained injuries to his left thigh. He was immediately shifted to Kamareddy Hospital, wherein he was inpatient for 7 days and he spent huge amount for medical expenses. The petitioner contended that he was earning Rs.7,000/- per month as salary and Rs.100/- per day as bata and due to accidental injuries, he has suffered - 4 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 disability and therefore, he sought adequate compensation under the provisions of Employees’ Compensation Act. 5. On service of notice, respondent Nos.1 and 2 appeared through their counsels, but respondent No.1 – employer did not file any written statement. Respondent No.2 – Insurance Company of the vehicle contended that there was no such relationship of employee and employer and the compensation claimed is highly excessive, exorbitant and imaginary. It denied the petition averments and sought to absolve its liability to pay the compensation. 6. Learned Commissioner framed appropriate issues and the petitioner was examined as PW1 and the Medical Practitioner, who assessed disability of the petitioner, was examined as PW2. Exs.P1 to P14 were marked in evidence. Respondent No.2 though did not reduce any oral evidence, Exs.R1 and R2 were marked by consent. After hearing the arguments, the learned Commissioner held that there is disability of 16% to the - 5 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 petitioner and accepting the wages at Rs.7,000/- per month, calculated compensation of Rs.1,14,700/- and awarded the same. Aggrieved by the same, the petitioner is before this Court in appeal. 7. Learned counsel appearing for the appellant- petitioner would submit that though the petitioner claimed that he was getting wages at Rs.7,000/- per month with bata of Rs.100/- per day, in total Rs.10,000/- per month, the Commissioner erred in holding that the wages was only Rs.7,000/- per month. He also contended that the notification issued buy the Government of India under Section 4(1-B) of the Employees’ Compensation Act prescribes a wages of Rs.8,000/- per month and the said aspect was not considered by the learned Commissioner. Secondly, he submits that the disability of the petitioner is assessed by PW2 and he being a Medical Practitioner holds the same at 18% and even then, the Commissioner substitute his own assessment at 6%. This aspect of the impugned judgment is not sustainable in law. - 6 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 8. Per contra, learned counsel appearing for respondent No.2 would submit that the wages fixed for the petitioner in his petition as well as in the affidavit filed in lieu of his examination-in-chief reiterated wages at Rs.7,000/- per month. He submits that that the bata do not come within the definition of the wages. He also submits that the notification issued under Section 4(1-B) of the Act is only advisory in nature and not mandatory. So far as the disability is concerned, he submits that the PW2 is not a Doctor who had treated the petitioner and therefore, the Tribunal is justified in assessing the functional disability at 6%. Regarding the first substantial question of law: 9. It is worth to note that though the petitioner states that he was paid Rs.7,000/- per month as wages, he adds that Rs.100/- was paid per day as bhatta. The definition of the wages under Section 2(1)(m) reads as below: - 7 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 "wages", includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a [employee] towards any pension or provident fund or a sum paid to a [employee] to cover any special expenses entailed on him by the nature of his employment; 10. Evidently, a bata is the special expenses entailed on the cleaner by the nature of his employment. It can also be termed as an allowance for traveling. The bata is not paid if the cleaner is not traveling on any particular day on the vehicle. Therefore, the bata do not come within the purview of the wages. In view of the affidavit filed by the petitioner that he was earning wages of Rs.7,000/- per month, the same cannot be disputed unless there is any statutory bar. - 8 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 11. The provisions of Section 4(1-B) of the Act empower the Central Government to issue a notification declaring the wages. The notification issued by the Government of India under Section 4(1-B) in the year 2010 prescribed a sum of Rs.8,000/- as wages. Though, the intention as to for which purpose the Central Government is empowered to issue the notification cannot be found, it has been inferred that such wages under the notification indicate a guideline that such wages are minimum. Therefore, even though petitioner states that he was being paid wages of Rs.7,000/- per month, the same is below the threshold fixed under Section 4(1-B) of the Act. Therefore, the wages are to be considered at Rs.8,000/- per month. To that extent, the impugned judgment of the Commissioner is not sustainable. Regarding second substantial question of law: 12. The question is whether the disability stated by a medical practitioner has to be accepted in toto. There is no reason or a mandate to accept the disability stated by - 9 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 the medical practitioner as a gospel truth. It is pertinent to note that all medical practitioners come within the definition of qualified medical practitioner as stated in Section 2(1)(i) of the act. If that is so, the weightage that has to be attributed to the say of medical practitioners has to be assessed. In umpteen number of judgments dealing with the opinion of the medical practitioners regarding disability, the Courts have held that the weightage that has to be given to the opinion of the medical practitioner who had treated the injured would be on the higher side. The reason is obvious. A medical practitioner who treats the injured would do the same with a view to reduce the disability. Treating a person to increase the disability would be against the professional ethics and reflects on his efficiency. Therefore, the weightage that has to be given to a treated medical practitioner has to be on the higher side. In the case on hand, the PW2 states that there is a disability of 18%. The nature of the injuries suffered by the petitioner would indicate that he had suffered fracture of left femur and it was treated by nailing and thereafter, - 10 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 the petitioner went to PW2 for assessment of the disability. Obviously, the PW2 is not a doctor who had treated him. He opines that there is a disability of 18%. Out of which the partial disability to climb the stairs etc., is 10%, weakness in the extensor muscles is 6% and pain is a 3%. 13. Considering the above opinion of the PW2, it appears that there is some disability but certainly the disability cannot be 18% as opined by the PW2. The functional disability needs to be assessed and in the considered view of this Court, such disability is taken at 10%. 14. In view of the above, the substantial question of law is answered accordingly and benefits the petitioners partially. 15. As a consequence, the compensation is recalculated as Rs.12,800/- (8000 x 60% = 12,800) x 10% x 186.9 = Rs.2,39,232/-. - 11 - NC: 2025:KHC-K:2509 MFA No. 201263 of 2021 16. The medical bills worth Rs.47,100/- were produced by the petitioner and the same is rounded off to Rs.50,000/-. 17. Hence, the appeal is deserves to be allowed in part and as such, the following: ORDER Petitioner is entitled for a compensation of Rs.2,89,232/- instead of Rs.1,14,700/- along with interest at the rate of 12% per annum from the 30th day of the accident till its deposit. All other terms and condition ordered by the learned Commissioner remain unaltered. Sd/- (C.M. JOSHI) JUDGE SBS, SMP List No.: 1 Sl No.: 39 CT: AK