Karnataka High Court

The Divisional Manager, vs Doddabasappa S/O ... on 1 July, 2021

Author: P.Krishna Bhat

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

              DATED THIS THE 1ST DAY OF JULY 2021

                             BEFORE

            THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                    MFA NO.24682 OF   2011(WC)
                              C/W
                    MFA NO.24683 OF   2011(WC)
                    MFA NO.24684 OF   2011(WC)
                    MFA NO.24685 OF   2011(WC)
                    MFA NO.24686 OF   2011(WC)
                    MFA NO.24687 OF   2011(WC)

BETWEEN:

THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE COMPANY
LIMITED, BELLARY, REP. BY ITS ASSISTANT
MANAGER,
REGIONAL OFFICE, TP HUB, II FLOOR,
SRINATH COMPLEX, NEW COTTON MARKET
HUBLI - 580 029.
                                             ...COMMON APPELLANT
(BY SRI.G.N. RAICHUR, ADVOCATE)

IN MFA NO.24682/2011

AND:

  1. SHRI. RAMACHANDRA S/O. CHANDRAPPA
     AGE : MAJOR, OCC : EX-HAMALI
     R/O.RAJESHWARI NAGARA,
     BELLARY, DIST. BELLARY.

  2. SRI. DODDAPPA S/O. THIMMAPPA
     AGE : MAJOR, OCC : OWNER OF LORRY NO.
     KA-36/1358,
     R/O. H.NO.126, DAMMUR VILLAGE
                                2


       TQ. & DIST. BELLARY.
                                                  ...RESPONDENTS

(BY SRI. V.SHIVARAJ HIREMATH, ADV. FOR R1) (R2-SERVED)

IN MFA NO.24683/2011

AND:

1. SHRI.MALLIKARJUN S/O MUNAIAH AGE : MAJOR, OCC : EX-HAMALI R/O. RAJESHWARI NAGARA BELLARY, DIST. BELLARY.

2. SRI. DODDAPPA S/O. THIMMAPPA AGE : MAJOR, OCC : OWNER OF LORRY NO.

KA-36/1358, R/O. H.NO.126, DAMMUR VILLAGE TQ. & DIST. BELLARY.

...RESPONDENTS

(BY SRI. V.SHIVARAJ HIREMATH, ADV. FOR R1) (R2-SERVED)

IN MFA NO.24684/2011

AND:

1. SHRI.ANJANEYALU S/O SHANKRAPPA AGE : MAJOR, OCC : EX-HAMALI R/O. RAJESHWARI NAGARA BELLARY, DIST. BELLARY.

2. SRI. DODDAPPA S/O. THIMMAPPA AGE : MAJOR, OCC : OWNER OF LORRY NO.

KA-36/1358, R/O. H.NO.126, DAMMUR VILLAGE TQ. & DIST. BELLARY.

...RESPONDENTS

(BY SRI. V.SHIVARAJ HIREMATH, ADV. FOR R1) (R2-SERVED)

IN MFA NO.24685/2011

AND:

1. SHRI. NOOR MOHAMMED S/O ABDUL GAFOOR AGE : MAJOR, OCC : EX-CLEANER R/O. DEVI NAGARA BELLARY, DIST. BELLARY.

2. SRI. DODDAPPA S/O. THIMMAPPA AGE : MAJOR, OCC : OWNER OF LORRY NO.

KA-36/1358, R/O. H.NO.126, DAMMUR VILLAGE TQ. & DIST. BELLARY.

...RESPONDENTS

(BY SRI. V.SHIVARAJ HIREMATH, ADV. FOR R1) (R2-SERVED)

IN MFA NO.24686/2011

AND:

1. SHRI.DODDABASAPPA S/O VEERABHADRAPPA AGE : MAJOR, OCC : EX-LOADER R/O. RAJESHWARI NAGARA BELLARY, DIST. BELLARY.

2. SRI. DODDAPPA S/O. THIMMAPPA AGE : MAJOR, OCC : OWNER OF LORRY NO.

KA-36/1358, R/O. H.NO.126, DAMMUR VILLAGE TQ. & DIST. BELLARY.

...RESPONDENTS

(BY SRI. V.SHIVARAJ HIREMATH, ADV. FOR R1) (R2-SERVED)

IN MFA NO.24687/2011

AND:

1. SHRI. N.MOHAN S/O BENJAMIN

AGE : MAJOR, OCC : EX-DRIVER R/O. KOTE BELLARY, DIST. BELLARY.

2. SRI. DODDAPPA S/O. THIMMAPPA AGE : MAJOR, OCC : OWNER OF LORRY NO.

KA-36/1358, R/O. H.NO.126, DAMMUR VILLAGE TQ. & DIST. BELLARY.

...RESPONDENTS

(BY SRI. V.SHIVARAJ HIREMATH, ADV. FOR R1) (R2-SERVED)

THESE APPEALS ARE FILED UNDER SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS AND TO SET-ASIDE THE ORDER DATED 28.07.2011 PASSED BY THE LEARNED LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DIVISION-II, BELLARY IN WC/NF Nos. 83/2009, 85/2009, 84/2009, 81/2009, 82/2009 AND 86/2009 RESPECTIVELY AND TO PASS ANY OTHER ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASES, IN THE INTEREST OF JUSTICE AND EQUITY.

THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

COMMON JUDGMENT

These appeals are by the insurer calling in question

the legality of the awards dated 28.07.2011 passed in

WC/NF Nos. 83/2009, 85/2009, 84/2009, 81/2009, 82/2009 AND

86/2009 respectively by the learned Labour Officer and

Commissioner for Workmen's Compensation, Sub-Division-

II, Bellary (for short, 'Commissioner').

2. Brief facts are that these claimants were working

as cleaner, 'hamalis' and driver in lorry bearing

registration No.KA-36/1358 owned by respondent No.1-

Doddappa before the learned Commissioner and insured

with the appellant herein. It is stated that on 08.02.2009

the lorry was loaded with paddy and while it was

proceeding to Bellary, at about 3.30 p.m., it met with an

accident resulting in injuries to all the claimants.

3. During the claim proceedings before the learned

Commissioner, respondent No.1-owner of the lorry in

question filed his written statement admitting the

employer-employee relationship and also the fact that

accident resulting in injuries took place in the course of

and arising out of employment.

4. The appellant filed its separate written statement

denying the material averments made in the claim

petitions.

5. During the enquiry, the claimants examined

themselves and also examined one qualified medical

practitioner by name Dr.Dinesh Gudi as witness and

Exs.P1 to P23 were marked. The appellant-insurer herein

produced the policy of insurance which was marked as

Exs.R2 (1).

6. Upon consideration of the materials produced and

the evidence let in, the learned Commissioner answered

all the points arising for consideration in favour of the

claimants and against the appellant-insurance company

and awarded a compensation of Rs.1,71,234/- to claimant

Noor Mohammad, Rs.1,16,988/- to claimant

Doddabasappa, Rs.1,14,665/- to claimant Ramachandra,

Rs.1,13,433/- to claimant Anjaneyulu, Rs.1,87,182/- to

claimant Mallikarjuna and Rs.1,79,134/- to claimant

N.Mohan with interest thereon at 12% per annum.

7. Learned counsel for the appellant - Insurance Co.

contended before me that the policy issued by the

appellant to the offending vehicle was an 'Act policy' and

no premium was collected covering the risk of the

employees like 'hamalis'. He submitted that only risk

covered in the 'Act policy' - Ex.R.2(1) issued in these

cases was for driver and cleaner. It was his contention

that learned Commissioner has committed a serious error

of law in asking the appellant to reimburse the

compensation awarded to claimants Doddabasappa,

Ramachandra, Anjaneyalu and Mallikarjuna. He also

submitted that for claimant - Ramachandra (MFA

24682/2011) only for the fracture of right clavicle

suffered by him, learned Commissioner has assessed the

disability at 25% when it is obvious that fracture of a

clavicle does not lead to any physical disability resulting

in loss of earning capacity. He also contended that for

Noor Mohammad (MFA 24685/2011) who has suffered

fracture of lateral 1/3 r d of right clavicle and right fore

arm, the extent of disability assessed by the learned

Commissioner at 35% is on the higher side and it should

be reduced. Further he contended that in regard to the

driver - N.Mohan (MFA 24687/2011), for the fracture of

mid-1/3 r d of radius, learned Commissioner has assessed

the physical disability at 35% which again is excessive.

He therefore submitted that the appeals are liable to be

allowed and the award is liable to be modified.

8. Learned counsel for the respondent - claimants,

Sri. Shivaraj Hiremath per contra submitted that the

learned Commissioner on appreciation of the evidence

placed before him has come to a correct conclusion and

since he is the fact finding authority, his findings are not

liable to be interfered with in an appeal filed under

Section 30(1) of the Employees Compensation Act, 1923

and therefore, appeals are liable to be dismissed.

9. I have given my anxious consideration to the

submissions made on either side and I have also perused

the records.

10. The appellant has issued the policy of insurance

as per Ex.R.2(1) to the lorry bearing registration No. KA-

36/1358 belonging to respondent No.1 - Doddappa. It is

obviously a goods vehicle. It is held by a Co-ordinate

Bench of this Court that in case of goods vehicles like

trucks there is a compulsory statutory coverage for six

coolies under Section 147 of the Motor Vehicles Act, 1988.

The decision on the point is reported in 2005 (4) KCCR

2325 - M/s. The New India Assurance Company

Limited vs. Prakash and another. At para 5 of the said

judgment, it is observed as follows :

"5. In respect of goods vehicle, the risk of the employees i.e., driver, cleaner and the loaders to the maximum of six persons is to be covered as required under the W.C.Act. In the case of passenger transport vehicle, driver, conductor and passengers have to be mandatorily covered by the Act policy."

The same view is reiterated by a Division Bench of this

Court in 2012 ACJ 1408 - National Insurance Co.Ltd.

vs. Maruthi and others. In this case, among the six

claimants, one of them is a cleaner and another is a driver

and the rest of the four claimants are working as

'hamalis'. The employer-employee relationship is not in

dispute, nor the fact of accident resulting in injuries

taking place in the course of and arising out of the

employment. In that view of the matter, there is no merit

in the contention of the learned counsel for the appellant

- Insurance Co. and I reject the same.

11. The claimant - Ramachandra who is respondent

in MFA 24682/2011 as per the wound certificate - Ex.P.11

has suffered one grievous injury, namely, fracture of right

clavicle. He has been examined by a qualified medical

practitioner by name Dr.Dinesh Gudi. The claimant -

Ramachandra is a young man. A clavicle fracture does not

normally lead to a physical disability or loss in the earning

capacity. The disability assessed at 25% by Dr. Dinesh

Gudi is on the face of it is excessive. There is nothing

indicated in the disability certificate as to the reasons

warranting assessment of the physical disability at 25%

for claimant - Ramachandra, when obviously the fracture

was one of right clavicle. Therefore, I hold that the said

physical disability assessed at 25% by the learned

Commissioner is irrational and absurd and the same is

liable to be interfered with and I hold that the physical

disability at the maximum to be assessed is 5%.

Accordingly, the compensation awardable to claimant

Ramachandra (MFA 24682/2011) is liable to be

recalculated as follows :

Rs.3,750/- x 60% x 203.85 x 5% = Rs.22,933/-

as against Rs.1,14,665/- awarded by the learned

Commissioner.

12. Learned Commissioner has assessed the

permanent physical disability of claimant Noor Mohammad

(MFA 24685/2011) at 35%. As per the wound certificate,

he has suffered fractures of (1) lateral 1/3 r d of right

clavicle (2) right fore arm. The qualified medical

practitioner - Dr. Dinesh Gudi has issued disability

certificate as per Ex.P.6. The operative portion of the

certificate is as follows :

"Following RTA patient had painful swelling at (R) clavicle and wrist. Now he complains of painful deformity at (R)clavicle and wrist, unable to hold or lift heavy weights, difficulty to take the hand over head, move forearm and wrist, pain increases on doing minor repair works. On examination (R) clavicle deformed, manus varus deformity seen, forearm muscles wasted, tenderness over fracture sites, rotation cuff, shoulder and wrist, shoulder abduction is 110 degree, further abduction is painful, movements of wrist and forearm painful and restricted (R ) grip is weak.

X-ray (r ) clavicle AP shows old malunited fracture of (r ) clavicle lateral 1/3 r d , x-ray (R ) wrist AP lat shows malunited fracture lower end at radius.

As the patient is a cleaner, these injuries have reduced his working capacity. Hence, I am of the opinion that patient has partial permanent physical disability at 35% (Thirty five percent only)."

The accident resulting in the injuries had taken place on

08.02.2009. The examination of Noor Mohammad was

done by this witness - Dr. Dinesh Gudi on 05.01.2010.

According to the said doctor - Dr. Dinesh Gudi, he had

found swelling at the right clavicle and also in the wrist.

The wound certificate shows that the claimant - Noor

Mohammad had suffered colles fracture of right fore arm.

He was aged 32 years at the time of the accident. The

wound certificate indicates that both the fractures were

single fractures. Under such circumstances, it is difficult

to believe that even after one year of the accident, the

claimant would still be having swelling in the clavicle as

well as in the right wrist. Obviously, the assessment

made by Dr. Dinesh Gudi is an exaggerated one in order

to help the claimant for securing higher compensation.

13. In fact, the way disability has been assessed by

the qualified medical practitioner had very nearly

persuaded me to direct a Medical Board to be constituted

for assessing the disability suffered by these claimants.

However, learned counsel for the claimants made a

request that instead of doing that which would prolong the

pendency of this appeal, this Court may do the requisite

assessment based on the wound certificates available on

record. Accordingly, I refrain myself from issuing

direction to the District Hospital, Bellary, for constituting

a Medical Board for examination of all these claimants for

the purpose of assessing disability. In view of the nature

of the fractures observed in the wound certificate -

Ex.P.5, I hold that the assessment of permanent disability

made at 35% by Dr. Dinesh Gudi is absurd and irrational

and I fix the same at 25%. In that view of the matter,

the compensation Noor Mohammad is entitled to receive

is required to be recalculated as follows :

Rs.4,000/- x 60% x 203.85 x 25% = Rs.1,22,310/-

as against Rs.1,71,234/- awarded by the learned

Commissioner.

14. Claimant - N.Mohan (MFA 24687/2011) has

suffered fracture of mid-1/3 r d of radius as per the wound

certificate - Ex.P.20. By placing reliance on the disability

assessment made by Dr. Dinesh Gudi, learned

Commissioner has observed that, said N. Mohan has

suffered permanent physical disability to the extent of

35%. The disability - certificate Ex.P.21 issued by Dr.

Dinesh Gudi reads as follows :

"Following RTA patient had painful swelling at (R) forearm. Now he complains of painful deformity at forearm, unable to hold or lift heavy weights, difficulty to move forearm, to hold the steering and change gears, pain increases on doing minor repair works. On examination (R) arm and forearm muscles wasted, forearm deformed, tenderness over fracture site, elbow and wrist, pronation and supination are painful and restricted, elbow and wrist movements are painful, (R ) grip is weak.

X-ray (R) forearm AP and lat. shows old malunited fracture radius m/3.

As the patient is a driver, these injuries have reduced his working capacity. Hence, I am of the opinion that patient has partial permanent physical disability at 35% (Thirty five percent only)."

The fracture suffered by the claimant - N. Mohan who was

aged 36 years at the time of the accident seems to be

simple fracture. There is nothing to indicate that either it

was a compound fracture or it was a comminuted fracture.

Obviously again Dr. Dinesh Gudi has made excessive

assessment of the degree of physical disability suffered by

the claimant - N.Mohan. Accordingly, I refix the same at

25%. So the compensation awardable to claimant -

N.Mohan is required to be reassessed as follows :

Rs.4,500/- x 60% x 189.56 x 25% = Rs.1,27,953/-

as against Rs.1,79,134/- awarded by the learned

Commissioner.