Karnataka High Court

The Director vs T. Chidanandappa on 6 January, 2021

Author: Ravi.V.Hosmani

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 6TH DAY OF JANUARY 2021

                             BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                 M.F.A No.103615/2016 (WC)

BETWEEN:

The Director,
Sandur Udyog Private Limited,
Sandur Post, Ballari District.
                                                    ... Appellant
(By Sri. Ravi Hegde, Advocate)

AND

1)    T. Chidanandappa,
      S/o. T. Tayappa,
      Aged about 32 years,
      Occ: Mechanic/Operator in
      SUPL Company Sandur,
      R/o. Subbarayanahalli,
      Sandur Taluk,
      Ballari District.

2)    M/s. United India Insurance Co., Ltd.,
      By its Branch Manager,
      Ballari.                                 . . . Respondents

(By Sri. Amaregouda, Advocate for R1; Sri. S.K. Kayakamath,
Advocate for R2)
                                     2




      This appeal is fired under Section 30(1) of the Employees
Compensation Act, 1923, against the judgment and award dated
26.04.2016, passed in ECA No.101/2014, on the file of the I
Additional Senior Civil Judge and Member, MACT -V, Ballari
awarding compensation of Rs.74,872/- with interest at 12% p.a.
from the date of accident till its realization.

      This MFA coming on for Admission, this day, the Court
delivered the following:

                             JUDGMENT

Heard the learned counsel.

2. This appeal is filed challenging the award dated

26.04.2016 passed by the Additional Senior Civil Judge

and MACT-V at Ballari in ECA No.101/2014.

3. Brief facts leading to filing of this appeal are

that respondent No.1, who was working as a Mechanic

cum Operator under the appellant, on 24.09.1999 while he

was so working, due to slip of compressor which hit him,

sustained injuries to his trunk and pelvic region.

Immediately, thereafter he took treatment at VIMS

Hospital, Bellari. However, despite treatment, he

sustained permanent disability. Hence, he filed application

No.791/1999 under Section 10 of Workmen's

Compensation Act, 1923 (hereinafter referred to as 'W.C.

Act' for short) seeking compensation from the employer

and insurer. After consideration an award dated

23.02.2004 came to be passed determining the

compensation of Rs.74,872/- with interest @ 12% per

annum against the appellant herein. Respondent No.2

insurer was absolved of its liability as there was no

insurance coverage.

4. Challenging the said award the appellant had

earlier filed MFA No.10155/2006 contending that due to

incorrect description of name of appellant Company, it

was denied an opportunity of participation in the

proceedings. The appeal was allowed on 29.11.2010 and

matter was remanded for passing fresh award after giving

an opportunity to appellant to cross examine workman

witnesses and also to lead evidence.

5. Subsequent to remand, claimant has got himself

examined as PW-1 and marked exhibits P.1 to P.6. The

Doctor who assessed the disability of the claimant is

examined as PW.2. Thereafter, appellant examined one of

its Officials as RW-1. RW-1 in his evidence disputed the

incident on the ground that there was no drizzling as

alleged by petitioner in application, during May 1999 and

contended that the accident did not occur during the

course of employment and it was not arising out of

employment. However, RW-1 admitted the employment of

the claimant on a monthly salary of Rs.975/- and

subsidized ration. But disputed the payment of bhata of

Rs.20/- per day.

6. On consideration, Tribunal was pleased to take

age of claimant as 30 years based on Exs.P.2 and P.3-

medical records, considering disability of 30% as assessed

by PW-2-Doctor, and by considering his monthly income

as Rs.2,000/-, the minimum wages prevailing on date of

accident, determined total compensation of Rs.74,872/-

with interest at the rate of 12% from the date of accident

till realization. Challenging the same the employer is in

appeal.

7. Learned counsel Sri. Ravi Hegde submitted that

even after remand by this Court, there was absolutely no

application or any measures taken by claimants to amend

the claim petition, but there was an amendment in the

claim petition not supported by any application or order of

the Tribunal and hence the award passed against the

appellant would be illegal. Apart from said contention, it

was submitted that claimant did not establish that

accident in question occurred during employment and

arose out of employment and that the Tribunal was not

justified in holding that accident occurred during course of

employment and out of employment.

8. Learned counsel further submitted that the

impugned award is contrary to judgment of Hon'ble

Supreme Court in Oriental Insurance Company Limited

Vs. Siby George and others reported in (2012) 12 SCC

540, insofar as award of interest from date of accident

and same is also required to be considered in this appeal.

Learned counsel submitted that the following substantial

questions of law arose for consideration in this appeal.

(1) Whether the trial Judge was justified in permitting to change name of appellant in impugned judgment without any specific orders passed on any application for correction?

(2) Whether the impugned award is/was sustainable without the trial Court recording a finding that the accident arose during the course of and out of employment?

(3) Whether the trial Judge was justified in accepting the extent of disability assessed by PW-2 - Doctor without any corroboration?

(4) Whether the impugned award is justified in directing payment of interest from date of accident instead of ordering it payable from 30 days after date of award?

9. On the other hand, Sri. Amaregouda, learned

counsel submitted that claimants had led evidence and

produced copy of the MLC report as Ex.P.1, copy of

discharge summary issued by hospital as Exs.P.2 and P.3

respectively, Ration card issued by the employer for

subsidized ration as Ex.P.4, Disability certificate issued by

Doctor as Ex.P.5 and X.ray as Ex.P.6. The said documents

establish that the workman sustained injuries due to an

accident that had occurred during employment and

therefore the assessment made by the doctor was just and

proper and no substantial question of law arose for

consideration of this appeal.

10. Learned counsel for respondent No.2 - insurer

submitted that he was a formal party in this appeal, as

there was no liability and no insurance policy issued to

cover the risk of accident in question.

11. Heard the learned counsel appearing for the

parties and perused the impugned order.

12. From the above it is seen that the appellant is

disputing relationship of employer and employee, and the

injuries suffered by claimant caused during the course of

employment and out of employment. It is also disputing

the extent of disability and the date from which it is liable

to pay interest.

13. Though the appellant has contended that the

name of the appellant was changed without any orders, it

is seen from the records that the Commissioner for

Workmen's Compensation had on an earlier occasion

passed an award in W.C.No.791/1999 against the

Director, Skand Udyog Pvt., Ltd., Sandur. The appellant

challenged the same in M.F.A.No.10155/2006 on the

ground that the description of the appellant was not

correct and it had succeeded in getting the matter

remanded back to the Commissioner. Pursuant to order

passed in M.F.A.No.10155/2006, the appellant had

entered appearance and contested the matter before the

trial Court. No objection was raised about correction of its

name. The appellant, in any case, availed opportunity

before the trial Court. The above contention is purely

technical and not substantive, therefore, the same does

not merit consideration.

14. The claimant in the application and in his

evidence has stated that he was working with the

appellant as an operator. In order to establish his

employment, he has produced Ex.P.4 - the Ration Card

issued by the employer to avail subsidized grains to its

employees. It bears the name of the claimant. Even

Ex.P.1 MLC report mentions history of injury as fall while

working in Sandur Udyog Pvt., Ltd., Sandur. The medical

records Ex.P.2 and P.3 corroborate the treatment taken to

the injury mentioned in Ex.P.1. Hence, from Ex.P.1 to P.4,

it can be ascertained that the claimant was an employee

of the appellant and suffered injury during course of

employment. Though a feeble attempt is made to contend

that the accident did not occur out of employment as the

claimant stated that he was injured by compressor hitting

him while he was blowing air into the tyres of lorry, the

fact that the said work was being undertaken by the

claimant during employment presumes the same to be on

instructions of the employer. The incident occurred inside

the premises belonging to appellant. In the absence of

any specific evidence on the part of the appellant, the

finding of the trial Judge on this aspect does not call for

any interference.

15. Insofar as the percentage of disability, Ex.P.5

mentions claimant sustained following injuries:

      1)    Scar (operated) on the back in the
            midline.
      2)    Spasm of muscles of back.
      3)    Paresis of both lower limbs IV to V.
      4)    Restriction of movements of back.
      5)    Difficulty in carrying heavy objects.
      6)    X-ray shows compression of L3 with
            instill mentalins (implants).

      16.   The     Doctor   examined      as   PW-2   certified    that

disability suffered by claimant due to above injuries as

permanent in nature to the extent of 30% to the limb. The

same is supported by the X-ray film produced as Ex.P.6.

The appellant has utterly failed to establish that the

percentage of disability assessed by PW-2 as not being

supported by the facts or being excessive. Therefore,

assessment of compensation by Tribunal is just and

proper. In view of the fact that there is no insurance

coverage, fastening of the liability to pay compensation on

the appellant is also just and proper.

17. In view of the above, it is held that the

proposed substantial questions of law with regard to