Karnataka High Court
The Divisional Manager vs Nagaraj S/O Veerabhadrappa ... on 6 July, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06th DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.21083 OF 2009 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
THE ICICI LOMBARD GENERAL INSURANCE COMPANY
LIMITED, BELLAD AND COMPANY LTD.,
2ND FLOOR, GOKUL ROAD, HUBLI.
...APPELLANT
(BY SRI.S.K. KAYAKAMATH & SRI. SADANAND KAREGOUDAR, ADVS.)
AND:
1. NAGARAJ S/O VEERABHADRAPPA MALAGIMANI
AGE:MAJOR, R/O KURUBAGOND,
TALUK & DIST:HAVERI.
2. KARABASAPPA S/O KARIYAPPA BUDIHAL
MAJOR, R/O ARALIKATTI,
TALUK:HIREKERUR, DIST:HAVERI.
...RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1)(R2-SERVED)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO CALLFOR THE RECORDS AND
SET-ASIDE THE JUDGMENT AND ORDER DATED 16TH SEPTEMBER, 2008
PASSED BY THE COMMISSIONER FOR WORKMEN'S COMPENSATION,
HAVERI IN WCA/NF NO.129/2007 AND TO PASS ANY OTHER ORDER OR
ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND
EQUITY.
2
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal by the insurer calling in question
the legality of the award dated 16.09.2008 passed in
WCA/NF No.129/2007 by the learned Labour Officer and
Commissioner for Workmen's Compensation, Haveri
District, Haveri (for short, 'Commissioner').
2. Brief facts are that the claimant-Nagaraj was
working as Hamali in a Tata Ace mini goods vehicle
bearing registration No.KA-27/9072 owned by respondent
No.1/Karabasappa and insured with the appellant herein.
On 25.3.2007, when the claimant was proceeding in the
said mini goods vehicle after unloading chilly in Haveri
APMC, on account of rash and negligent driving of the
driver of the said vehicle, it met with an accident and
claimant suffered grievous injuries.
3. Respondent No.1-Karabasappa, owner of the
vehicle in question appeared before the learned
Commissioner through his learned counsel; but he did not
file any written statement. The appellant/insurer filed
separate written statement denying the material
averments made in the claim petition.
4. During the enquiry, the claimant examined himself
and also examined one doctor by name Dr. G.Shivappa,
Orthopedic Surgeon, who is a qualified medical
practitioner and Exs.P1 to P12 were marked. The
appellant/insurer examined one of its officials as witness
and Exs.R2(1) to R2(3) were marked.
5. Upon consideration of the materials produced, the
learned Commissioner answered all the points arising for
consideration in favour of the claimant and against the
appellant/insurer and awarded a compensation of
Rs.1,13,878/- with interest thereon at 12% per annum.
6. The learned counsel appearing for the
appellant/insurer contended before me that there is no
employer-employee relationship between respondent No.1
and the claimant herein and the learned Commissioner has
recorded a finding in favour of the claimant by ignoring
the evidence placed on record and therefore, finding is
perverse and same is liable to be set-aside. He further
contended that the assessment of loss of earning capacity
made by the learned Commissioner is perverse and it is
liable to be set-aside.
7. Learned counsel appearing for the
respondent/claimant, on the other hand, contended that
the learned Commissioner upon consideration of the
evidence has recorded a finding and the same being a
finding of fact is not liable to be interfered with in an
appeal under Section 30(1) of the Employees'
Compensation Act, 1923. He further submitted that even
though statute is very clear that the compensation
awarded shall carry interest at 12% per annum w.e.f.
thirty days from the date of the accident, the learned
Commissioner has awarded interest w.e.f. one month from
the date of the award and therefore, the said error is
liable to be rectified in this appeal.
8. The claimant-Nagaraj has asserted in his claim
petition that he was working as Hamali in Tata Ace Mini
Goods vehicle bearing registration No.KA-27/9072 owned
by respondent No.1/Karabasappa at the time of the
accident. Respondent No.1 had appeared before the
learned Commissioner but he did not file any written
statement denying the fact that the claimant-Nagaraj was
working as Hamali in his Mini Goods vehicle. The learned
counsel for the appellant has drawn my attention to
Ex.P1-complaint which was lodged by one Shivalingappa,
who is obviously a stranger to the driver and others, who
were present in the mini goods vehicle in question and he
has stated in the complaint that on 24.3.2007 during mid
night hours, when he was in the field near bridge in
Pundikatte, mini goods vehicle bearing registration No.
KA-27/9072 had come in high speed and fell down into
water stream due to rash and negligent driving of its
driver and therefore, information contained in Ex.P1
cannot be taken as evidence as to whether the claimant
was working as Hamali in the mini goods vehicle in
question or he was traveling as gratuitous passenger
therein. On the other hand, charge sheet (Ex.P7) at
column No.17 shows that the claimant who was cited as
CW10 was working as Coolie in the said vehicle. The
learned Commissioner upon consideration of the entire
evidence has recorded a finding that the employer-
employee relationship has been established by evidence
and that being a finding of fact based on evidence is not
liable to be interfered with in this appeal filed under
Section 30(1) of the Employees' Compensation Act, 1923
and accordingly, I reject the contention of the learned
counsel for the appellant.
9. The learned counsel for the appellant also
contended that loss of earning capacity assessed by the
learned Commissioner at 25% is arbitrary and based on no
evidence. Wound Certificate at Ex.P8 shows that the
claimant had suffered fracture of right wrist i.e. lower end
of radius. PW3-Dr. G. Shivappa examined the claimant for
the purpose of assessment of disability suffered by him
and Ex.P11 is the report of the said doctor. After a
detailed examination, he has made assessment of
disability of the claimant-Nagaraj at 25% to 30%
pertaining to right upper limb. Upon consideration of the
same, the learned Commissioner has made his own
assessment of loss of earning capacity of the claimant at
25%. The claimant is a manual labourer and the
assessment made by the learned Commissioner based on
the report of PW3-Dr. G. Shivappa is a finding of fact as
held by the Hon'ble Supreme Court in the case of Golla
Rajanna & Others Vs. Divisional Manager & Another
reported in (2017) 1 SCC 45 and same is not liable to be
interfered with. Accordingly, I reject the contention of
the learned counsel for the appellant advanced in this
behalf.
10. There is no dispute about the fact that the
compensation awarded shall carry interest at the rate of
12% per annum w.e.f. thirty days from the date of the
accident as is made clear in the statute itself. Therefore,
the award in this case shall also carry interest as per
mandate of the statute. Hence, the following:
ORDER
a) The above appeal is dismissed.
b) However, while maintaining the quantum of
compensation awarded, it shall carry interest
at the rate of 12% per annum w.e.f. thirty
days from the date of accident till date of
realization and the appellant-insurer shall
pay the same accordingly.
c) The amount in deposit before this Court, if
any, shall be transmitted to the jurisdictional
Court of learned Senior Civil Judge along
with the records forthwith.
Sd/-
JUDGE
JTR
