The Oriental Insurance Co. Ltd., vs Gulabnabi Sheikh Ahmed Sheikh
2021 Latest Caselaw 1643 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 26TH DAY OF FEBRUARY, 2021

                             BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                     MFA No.20908/2012

BETWEEN:

The Oriental Insurance Company Limited,
Divisional Office, Madiwal Complex,
Club Road, Belgaum, represented by
Its Asst. Manager, Regional Office,
Sumangala Complex, 2nd floor,
Lamington Road, Hubli - 29.
                                                        ... Appellant
(By Sri. G.N.Raichur, Advocate)

AND

1.    Sri. Gulabnabi Sheikh Ahmed Sheikh,
      Age 43 years, Occ: Nil,
      R/o. Old Court Road, Balasinor,
      Nadiad, Gujarat State.
2.    Sri. Shivan Padmanabha,
      Age major, Occ: Business,
      R/o. 175, Mayappa Charakku,
      Mallapuram, Kerala State.
                                                   ... Respondents

(Sri. Harish S. Maigur, Advocate for R1;
v/o dated 13.06.2016, notice to R2 is dispensed with)
                                       2




       This MFA is filed under Section 30(1) of the W.C.Act, 1923,
against the Judgment and award dated 27.12.2011, passed in
WCA/SR No.103/2010 on the file of the Labour Officer and
Commissioner     for    Workmen     compensation,    Sub-Division-1,
Belgaum District, Belgaum, awarding the compensation of
Rs.2,61,172/- with interest at the rate of 12% p.a. from the date of
petition and shall be deposited within one month from the date of
order.

      This MFA coming on for orders this day, the court, delivered
the following:

                                JUDGMENT

Challenging the Judgment dated 27.12.2011 passed by the

Labour Officer and Commissioner for Workmen's compensation,

Sub-Division -1, Belagavi, this appeal is filed.

2. The appellant is the Insurer of pickup van bearing

registration No.UDN-132459 belonging to respondent No.2. The

respondent No.1 herein had filed a claim petition under Section 22

of the Workmen's Compensation Act, 1923 ('W.C.Act' for short)

before Labour Officer and Commissioner for Workmen

Compensation, Belagavi, ('Commissioner' for short) against

respondent No.2 herein and appellant, seeking for compensation on

account of loss of earning capacity sustained due to permanent

physical disability caused in an accident that occurred on

06.05.2010, while respondent No.1 was working as driver of

Insured vehicle.

3. In the petition, respondent No.1 had stated that, on

06.05.2010 at about 5.00 p.m., when vehicle was moving from

Kerala towards Belagavi, an unknown vehicle dashed against it from

behind near Saraswati Hotel of Shippur village. In the said accident,

respondent No.1 sustained fracture of middle 3rd of right femur and

injuries on other parts of the body. Respondent No.1 took

treatment between 06.05.2010 and 06.10.2010 in three different

hospitals. Despite treatment, he sustained permanent physical

disability. It was stated that on the date of accident, respondent

No.1 was aged 42 years and earning a monthly income of

Rs.4,000/- and Rs.100/- as bhata per day from respondent No.2-

employer.

4. On service of notice, respondent No.1 did not contest

the matter and was placed ex-parte. Respondent No.2-Insurer

entered appearance and filed objections denying the accident, age,

occupation and permanent disability of respondent No.1 and also on

ground that compensation sought was exorbitant.

5. Based on pleadings, Commissioner framed following

points for consideration:

1. CfðzÁgÀgÀgÀÄ PÁ«ÄðPÀ £ÀµÖÀ ¥ÀjºÁgÀ PÁAiÉÄÝ 1923 gÀ PÀ®A 2(1) (J£ï) ªÉÄÃgÉUÉ PÁ«ÄðPÀgÉÃ?

2. EzÀÝ ¥ÀPÀëzÀ°è ¸ÀzÀj C¥ÀWÁvÀªÅÀ CfðzÁgÀgÀ PÉ®¸ÀzÀ CªÀ¢üAiÀÄ°è ªÀÄvÀÄÛ PÉ®¸ÀzÀ ¥ÀjuÁªÀÄ¢AzÀ ¸ÀA¨sÀ«¹gÀÄvÀÛzÉAiÉÄÃ?

3. C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è CfðzÁgÀjUÉ JµÀÄÖ ªÀµðÀ ªÀAiÀĸÁìVzÀݪÀÅ ªÀÄvÀÄÛ ªÀiÁ¹PÀ ¥ÀrAiÀÄÄwÛzÀÝ ªÉÃvÀ£ÀªÉµÄÀ Ö?

4. CfðzÁgÀgÀÄ vÀªÀÄä CfðAiÀÄ°è PÉýgÀĪÀµÄÀ Ö £Àµ×À ¥ÀjºÁgÀ zsÀ£À ¥ÀqÉAiÀÄ®Ä CºÀðgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?

5. ¥ÀjºÁgÀ zsÀ£ÀzÀ ªÉÄÃ¯É PÁAiÉÄÝ PÀ®A 4(J) ªÉÄÃgÉUÉ CfðzÁgÀgÀÄ §rØ ªÀÄvÀÄÛ zÀAqÀ gÀÆ¥ÀzÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?

6. DzÉñÀªÁzÀ°è ¥ÀjºÁgÀ zsÀ£À, §rØ ªÀÄvÀÄÛ zÀAqÀ gÀÆ¥ÀzÀ°è ¥ÀjºÁgÀ ¥ÁªÀw¸À®Ä AiÀiÁgÀÄ dªÁ¨ÁÝgÀgÄÀ ?

7. F §UÉÎ DzÉñÀªÉãÀÄ?

6. In support of his case, respondent No.1 examined

himself as P.W.1 and Dr. Annasaheb B. Patil, Orthopedic surgeon as

P.W.2 and Ex.P.1 to Ex.P.14 were marked. On behalf of

respondents, the Insurer was also examined as Ex.R.2(1) with

consent. No oral evidence was led.

7. On consideration of material on record, Commissioner

answered issues in favour of respondent No.1 and passed an order

determining total compensation of Rs.2,61,172/- and held appellant

liable to pay the same with interest at 12% per annum, from 30

days after date of order. Challenging the said order, Insurer is in

appeal.

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

submitted that, the sole ground of challenge is whether

Commissioner was competent to consider a higher percentage of

disability than assessed by registered medical practitioner examined

by respondent No.1, contrary to Section 4(i)(c)(ii) of Workmen's

Compensation Act, 1923. As there is no dispute about age,

occupation, income, relationship of respondent Nos.1 and 2 as

employer and employee and as dispute is only with regard to extent

of permanent physical disability and consequential functional

disability.

9. In order to establish extent of permanent physical

disability, respondent No.1 has stated in his evidence that, due to

disability suffered by him, he has lost substantial loss of earning

capacity and he has to wear crutches and has lost his earning

capacity.

10. P.W.2 - Dr. Annasaheb B. Patil, Orthopedic Surgeon,

examined by respondent No.1 has stated in his evidence as under:

• Standing long time, climbing up, coming down on slopy surface on affected limb painful.

• Walking for long distance painful,

• Kneeling down, squatting, sitting crossed leg painful,

• Restriction of joint movement of the affected limb as examined above.

X-ray taken on 26.07.2011 at Shreyas Diagnostic Centre, Belgaum show:

• Malunited comminuted fracture middle 3rd right femur with metal implant in situ.

Functional Disability Observed is:

• Restriction of right knee and hip movements.

• Muscle wasting of right thigh present.

• Shortening of right lower limb present.

Considering the clinical and radiological findings and after through ALIMCO (manuals) the patient in my opinion has got permanent physical disability amounting to 40% to right lower limb and accordingly I have issued the disability certificate to that effect on 26.07.2011 and the contents of the same are true and correct.

11. Admittedly, P.W.2 has assessed the permanent physical

disability with regard to particular limb in question. During his

cross-examination, P.W.2 admits that at the time of examination,

there was no pain suffered by respondent No.1 and fracture was

united. The suggestion that there is no mal-union is denied. From

perusal of disability certificate at Ex.P.13, restriction in movement

of hip is noted. The injury to respondent no.1 is on his right limb,

which is normally the dominant limb. These factors are to be

considered in the light of occupation of respondent no.1, while

assessing his functional disability.

12. On going through evidence of P.W.2, it is seen that,

P.W.2 has assessed total disability by referring to restriction of

movement of hip as well as restriction of movement of knee.

Restriction of movement of knee appears to be doubtful.

Considering the disability assessed with regard to fracture of shaft

of femur and restriction of movement of hip, assessment of

permanent physical disability at 60% which is more than the

percentage of disability assessed by P.W.2, registered medical

practitioner, appears to be excessive and unjustified.

13. On re-consideration as stated above, it would be just

and appropriate to consider the same at 50% keeping in mind the

restriction of movement of hip, fracture, right femur and occupation

of respondent No.1. Hence, substantial question of law is answered

partly in favour of appellant, compensation awarded by

Commissioner has to be re-calculated as follows:

Monthly income Multiplier Earning capacity Compensation amount.

         60% of            181.37                  50%           Rs.2,17,644/-

         Rs.4000/-

14. With the said modification, appeal is allowed in part.

Rest of the order of the Commissioner is not disturbed. The amount

in deposit is ordered to be transmitted to the jurisdictional Court for

disbursal. Excess amount left after paying compensation to

claimant, has to be returned to appellant-Insurer.

Sd/-

JUDGE

*Svh/-