The Divisional Manager vs Surya @ Suresh
2021 Latest Caselaw 6323 Kant

     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 17 T H DAY OF DECEMBER, 2021

                          BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                 M.F.A.No.20275/2010 (WC)
BETWEEN:

THE DIVISIONAL MANAGER
THE ORI ENTAL INS URANCE COM PANY LIMITED
BELGA UM
REPRES ENTED BY ITS CHIEF REGI ON AL MANAGER,
THE ORI ENTAL INS URANCE CO. LTD ,
REGIONAL OFFICE SUMANGALA COMPLEX S ECOND
FLOOR LAMINGT ON ROAD HUBLI.
                                            ... APPELLANT
(BY SRI.G.N .RAICHUR, ADVOCATE)
AND

1.     SRI. S URYA @ SURESH S/ O NINGA PPA KAMBLI
       AGE: 34 YEARS , OCC: COOLIE(NOT MENTIONED),
       R/O HIRESHIVANGUTTI, T Q: HUNUGUND,
       DIST: BAGALK OT.

2.   SHRI BASANGOUD A MALLANGOUDA PATIL
     H.No. 61, 14 T H GA LLI VIDYAGIRI ,
     BAGALKOT .
                                           ... RES PONDENTS
(BY SRI.SIDDA PPA S.SAJJAN , ADV OCATE FOR R1)
(R2 N OTICE SERV ED)

      THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
30( 1) OF THE WORKMEN COMPENSA TION ACT, 1923, PRAYING
TO CALL FOR THE RECORDS IN W .C.NF . No.74/2008 ON THE
FILE   OF   LABOUR  OFFI CER  A ND  COMMISSIONER   FOR
WORKMEN'S COMPENSATION BAGALKOT DISTRICT BAGALKOT ,
PERUS E THE SAM E AND SET ASIDE THE JUD GMENT DATED
20.10.2009, BY ALLOWING THIS MFA AND ETC.
                                     2




    THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT , D ELIVERED THE F OLLOWING:

                            JUDGMENT

Challenging judgment and award dated 20.10.2009

passed by Labour Officer and Commissioner for Workmen's

compensation, Bagalkot District, Bagalkot, in W.C.NF.

No.74/2008, this appeal is filed by claimant for seeking

enhancement of compensation.

2. Brief facts as stated are that respondent no.1,

(hereinafter 'Workman') claiming to be employed by

respondent no.2 (hereinafter 'Employer') to work as driver

in lorry bearing registration No.KA-29/A-8899 belonging

to him was driving the lorry on instructions of his

employer on Bagalkot road on 07.10.2007, it met with an

accident in Hubballi. In the accident, he sustained injuries

to left hand, head and other parts of body. He was

admitted to KIMS hospital Hubballi for treatment and in

Kumaraswar Hospital Bagalkot. However he did not

recover fully and sustained partial permanent physical

disability. Claiming compensation for the same, he filed

claim application under Section 22 of Workmen's

Compensation Act, against employer and insurer.

        3.     On        service      of        summons,       employer    filed

objections        admitting         relationship          of    employer   and

employee. It was stated that workman was appointed on

monthly salary of Rs.5,000/- and that on 07.10.2007,

workmen was on duty at the time of accident. Respondent

no.1 further stated that, vehicle was insured with

respondent no.2.

4. Respondent no.2 also filed objections denying

relationship of employer and employee, but admitted

issuance of insurance policy. The age, occupation, income

and physical disability sustained by workman was

disputed.

5. Based on pleadings, Tribunal framed following

issues:

1. CfðzÁgÀgÀÄ 1£Éà ¥Àæ w ªÁ¢UÀ¼À ªÁºÀ£ÀzÀ°è ZÁ®PÀ JAzÀÄ ¸ÉêÁ ¤gÀvÀªÁVzÁÝUÀ PÉ®¸ÀzÀ ªÉüÉ, PÉ®¸ÀzÀ ¥ÀjuÁªÀÄ¢AzÀ GAmÁzÀ C¥ÀWÁvÀzÀ°è ±Á±Àé v À CAUÀ £ÀÆå£ÀvÉ ºÉÆA¢gÀĪÀzÁV ¸Á©vÀÄ ¥Àr¸ÀĪÀgÉÃ?

2. CfðzÁgÀgÀÄ vÀªÀÄUÉ C¥ÀWÁvÀzÀ PÁ®zÀ°è 24 ªÀµÀð ªÀAiÀĸÁì V vÀÄÛ ªÀÄvÀÄÛ 1£Éà ¥Àæ w ªÁ¢UÀ½AzÀ vÀªÀÄUÉ gÀÆ.5,000/- ¸ÀA§¼À ªÀÄvÀÄÛ gÀÆ.100/0- ¢£À§vÉå ¥ÀqÉAiÀÄÄwÛ z ÀÝgÉAzÀÄ ¸Á©vÀÄ¥Àr¸ÀĪÀgÉÃ?

3. CfðzÁgÀgÀÄ C¥ÀWÁvÀ¢AzÁV ªÉÊAiÀÄQÛ P À ºÁ¤UÁV ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ? ºÁVzÀÝ°è ¥ÀjºÁgÀzÀ ªÉÆvÀÛ ªÉµÀÄÖ ? ºÁUÀÆ ¤ÃqÀ®Ä AiÀiÁgÀÄ ¨ÁzÀå¸ÀÜgÀÄ?

4. CfðzÁgÀgÀÄ ¥ÀjºÁgÀzÀ ªÉÄÃ¯É zÀAqÀ ºÁUÀÆ §rØ U É CºÀðgÉÃ? ºÁVzÀÝ®zÀ° zÀAqÀ ºÁUÀÆ §rØAiÀÄ ªÉÆvÀÛ ª ɵÀÄÖ ? ºÁUÀÆAiÀiÁgÀÄ ¨ÁzÀå¸ÀÜgÀÄ?

5. DzÉñÀªÉãÀÄ?

6. In order to prove his case, claimant examined

himself as PW1 and he also examined Dr.S.V.Sangnal as

PW.2., exhibits P1 to P.14 were marked. On behalf of

respondent no oral evidence led. Copy of insurance policy

was marked with consent as exhibit P.2(1).

7. On consideration, Commissioner answered issue

in favour of workman. It was held that workman was

employed by respondent no.2 herein as driver on monthly

income of Rs. 3,800/-. Age of the claimant was 26 years,

partial permanent physical disability was 40% and

applying factor of 215.28 granted a compensation of

Rs.1,96,335/- with interest at 12% p.a from 30 days from

date of accident. Challenging the said order insurer is in

appeal.

8. Sri. G.N.Raichur learned counsel for appellant/

insurer submitted that accident occurred due to workman

driving vehicle after consuming Alcohol as per Exhibit P.7.

In patient discharge card issued by KIMS hospital Hubli, it

was recorded at the time of admission that the breath of

patient smelled of Alcohol. It was submitted that as driver

was under influence of alcohol, liability of the insurer

ought to be discharged. It was also contended that though

Exhibit P.6 - wound certificate did not indicate any

fracture, PW.2 assessed disability of 40 to 45% referring

to fracture of fingers of left hand and same was accepted

by Commissioner, thereby committing perversity insofar

as assessment of disability.

9. On the other hand, Sri. Siddappa S.Sajjan,

learned counsel submitted that assessment of disability

was question of fact and as no substantial question of law

arose for consideration appeal ought to be dismissed.

10. In support of his submission he relied upon a decision in

the case of Golla Rajanna and others vs. Divisional Manager

and another, reported in (2017) 1 SCC 45.

11. From above submission, relationship of employer and

employee between workman and employer is not in dispute.

Occurrence of accident during the course of and out of employment

is also not in dispute. Insurer is challenging the award on the

ground that workman being under influence of alcohol at the time

of accident, would be in breach of terms and conditions of policy

and therefore, liability of insurer is required to be discharged.

Insurer is also challenging the award insofar as quantum of

assessment of disability.

12. This appeal was admitted on 12.2.2016 without framing

substantial questions of law. After having heard learned counsel,

following substantial questions of law are framed for consideration:

i) Whether Commissioner erred in not taking into consideration contents of discharge card issued by KIMS Hospital, wherein it is clearly recorded that breath of claimant was smelling alcohol?

ii) Whether Commissioner for Workmen's Compensation erred in accepting evidence of PW.2 - doctor while assessing loss of earning capacity at 40%?

13. Indeed, in Ex.P.7, it is noted that breath of workman

smelt of alcohol. But in the absence of a blood test or in the

absence of opinion recorded by doctor that workman was 'under

influence of alcohol' at the time of accident, it cannot be held that

there was violation of provisions of Motor Vehicles Act or terms and

conditions of policy. Hence, without any further discussion, it is held

that substantial question of law no.1 does not arise for

consideration.

14. Insofar as second substantial question of law, medical

evidence on record namely Ex.P.6 wound certificate, Ex.P.7

discharge summary and Ex.P.8 discharge card, indicate that

workman was treated for fracture of left, middle and ring finger

with 'k' wire fixation. Dr.S.V.Sanganal issued Ex. P.12 - disability

certificate assessing partial permanent physical disability to left

hand at 45-50%. There is a reference to x-ray, which shows joints

are fused and deformed. X-ray is also produced as Ex.P.14.

Workman was working as a driver. Though some disability might be

caused to fingers of left hand, it would not cause functional

disability of 40% as assessed by Commissioner.

15. On examination of Ex.P.14, is slight deformity in two

fingers of left hand is noted. From Ex.P.12 disability certificate it is

seen that Dr.S.V.Sanganal is not a registered medical practitioner

as no registration number is mentioned on his letter head. But from

records of KIMS Hospital, it is seen that injury no.5 is noted to be a

grievous injury and Ex.P.8 treatment records of Kumareshwar

Hospital, Bagalkote, indicate treatment for fracture. There is also a

note about restriction of movement of left hand fingers.

16. From the above, there is some evidence about disability

being caused. But the same, in any event, would not justify

assessment of permanent physical disability to the extent of 40%

as assessed by Commissioner. Said assessment of Commissioner

would be perverse. On a consideration of profession of workman

and extent of disability noted from Ex.P.14, it would be appropriate

to consider disability to the extent of 15%. Thus, loss of earning

capacity would be Rs.3,800/- x 60% x 15% x 215.28 =

Rs.73,625/-. Same is awarded to claimant. In the result, substantial

question of law no.2 is answered partly in favour of appellant.

17. In the result, I pass the following:

ORDER

i) Appeal is allowed in part.

ii) Compensation is reduced from Rs.1,96,335/- to Rs.73,625/-. Claimant would be entitled to interest at the rate of 12% p.a. from one month after the date of accident till deposit, as ordered by trial Court.

iii) Amount in deposit is ordered to be transmitted to trial Court for payment. After payment of reassessed compensation in favour of workman- claimant, trial Court shall refund excess amount if any, to appellant.

Sd/-

JUDGE

H MB/ .

Mrk/.