The New India Assurance Company ... vs Siddappa S/O Gurubasappa
2021 Latest Caselaw 2726 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

              DATED THIS THE 9TH DAY OF JULY 2021

                            BEFORE

            THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                   MFA NO.21261 OF   2009 (WC)
                             C/W
                   MFA NO.21262 OF   2009 (WC)
                   MFA NO.21263 OF   2009 (WC)
                   MFA NO.21264 OF   2009 (WC)

BETWEEN:

THE NEW INDIA ASSURANCE COMPANY
LIMITED,
DIVISIONAL OFFICE ; EDIGA HOSTEL COMPLEX
BELLARY
REP. BY ITS REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED
REGIONAL OFFICE, 2-B UNITY BUILDING
ANNEXE, P.KALINGA RAO ROAD
(MISSION ROAD) BANGALORE
BANGALORE.
                                             ...COMMON APPELLANT
(BY SRI.G.N. RAICHUR, ADVOCATE)

IN MFA NO.21261/2009

AND:

  1. NAINEPPA S/O. O. VEERANNA
     AGE : 37 YEARS, OCC : EX-HAMALI
     R/O. KARIGANUR,
     TQ. HOSPET, DIST. KOPPAL.

  2. SRI. MURUGHENDRA S/O. VEERBHDRAYYA
     AGE : MAJOR, OCC : OWNER
     KA-28/7639
                                  2


       R/O. H.NO.26, RAJPUT
       BIJAPUR, DIST. BIJAPUR.
                                                ...RESPONDENTS

(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV. FOR R1. SRI. JAYAWANT SAVAGAON FOR R2 VIDE ORDER DATED 29.06.2011)

IN MFA NO.21262/2009

AND:

1. PARMESHI S/O. O. KUMARSWAMY AGE : 24 YEARS, OCC : EX-HAMALI R/O. KARIGANUR, TQ. HOSPET, DIST. KOPPAL.

2. SRI. MURUGHENDRA S/O. VEERBHDRAYYA AGE : MAJOR, OCC : OWNER KA-28/7639 R/O. H.NO.26, RAJPUT BIJAPUR, DIST. BIJAPUR.

...RESPONDENTS

(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV. FOR R1. SRI. JAYAWANT SAVAGAON FOR R2 VIDE ORDER DATED 29.06.2011)

IN MFA NO.21263/2009

AND:

1. SHRI. KRISHNAPPA S/O. BASAPPA AGE : 30 YEARS, OCC : EX-HAMALI R/O. KARIGANUR, TQ. HOSPET, DIST. KOPPAL.

2. SRI. MURUGHENDRA S/O. VEERBHDRAYYA AGE : MAJOR, OCC : OWNER KA-28/7639 R/O. H.NO.26, RAJPUT BIJAPUR, DIST. BIJAPUR.

...RESPONDENTS

(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV. FOR R1. SRI. JAYAWANT SAVAGAON FOR R2 VIDE ORDER DATED 29.06.2011)

IN MFA NO.21264/2009

AND:

1. SIDDAPPA S/O. O. GURUBASAPPA AGE : 32 YEARS, OCC : EX-HAMALI R/O. KARIGANUR, TQ. HOSPET, DIST. KOPPAL.

2. SRI. MURUGHENDRA S/O. VEERBHDRAYYA AGE : MAJOR, OCC : OWNER KA-28/7639 R/O. H.NO.26, RAJPUT BIJAPUR, DIST. BIJAPUR.

...RESPONDENTS

(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV. FOR R1. SRI. JAYAWANT SAVAGAON FOR R2 VIDE ORDER DATED 29.06.2011)

THESE APPEALS ARE FILED UNDER SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS IN WC NF NOS.49/2007, 50/2007, 51/2007 AND 52/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DIVISION-I, BELLARY, PERUSE THE SAME AND SET ASIDE THE JUDGMENT BY ALLOWING THE INSTANT APPEALS WITH COSTS AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASES, IN THE INTEREST OF JUSTICE AND EQUITY.

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

COMMON JUDGMENT

These appeals are at the instance of the insurer

calling in question the legality of the awards dated

13.01.2009 passed in WC NF Nos. 49/2007, 50/2007, 51/2007

and 52/2007 respectively by the learned Labour Officer and

Commissioner for Workmen's Compensation, Sub-Division-

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

2. Brief facts are that these claimants have asserted

that they were 'hamalis' in lorry bearing registration

No.KA-28/7639 owned by respondent No.1- Murughendra

son of Veerabhadrayya before the learned Commissioner

and insured with the appellant herein. It is stated that on

11.09.2003 they were proceeding in the lorry as 'hamalis'

and near Dharmasagar, the lorry met with an accident

resulting in injuries to all the claimants. In regard to the

accident a case in Crime No.94/2003 was registered.

3. During the claim proceedings before the learned

Commissioner, respondent No.1 - Murughendra son of

Veerabhadrayya, 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 as P.Ws.1 to 4 and also examined one

qualified medical practitioner by name Dr. Phaniraj as

P.W.5 and Exs.P1 to P12 were marked. The appellant -

insurer herein examined one if its officials as R.W.1

produced the policy of insurance which was marked as

Ex.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.1,06,412/- to claimant

Nainappa son of Veeranna, Rs.1,17,973/- to claimant

Parameshi son of Kumaraswamy, Rs.1,12,309/- to

claimant Krishnappa son of Basappa and Rs.1,10,079/- to

claimant Siddappa son of Gurubasappa with interest

thereon at 12% per annum.

7. Learned counsel for the appellant - Insurance Co.

vehemently contended before me that the finding of the

learned Commissioner that the employer-employee

relationship between the respondent No.1 and claimants

has been established is based on no evidence and it is

perverse. He particularly drew my attention to Ex.P.1

which is the FIR wherein the driver of the lorry -

Rajashekar is the complainant and he has mentioned only

about the presence of cleaner Subhash at the time of the

accident and in the complaint there is no mention that

these claimants were in the lorry as 'hamalis'. He

submitted that learned Commissioner has not at all

applied his mind to this important aspect of the evidence

and therefore, the finding of the learned Commissioner is

unsustainable. He further contended that the learned

Commissioner has uniformly fixed the loss of earning

capacity at 30% for each of the claimants which is

contrary to the evidence on record and he particularly

draws my attention to the evidence of P.W.5 - Dr.

Phaniraj which shows that there was union of all the

fractures and he submits that since the claimants were all

of very young age, it is impossible to believe that they

would suffer loss of earning capacity to the extent of

30%. He submits that the claimants have presented

exaggerated version of their physical disability on created

documents and therefore, the appeals are liable to be

allowed and claim petitions dismissed.

8. Learned counsel Sri. Hanumanthareddy Sahukar

appearing for the claimants on the other hand submits

that much importance cannot be attached to the fact that

in the complaint there is no mention about the claimants

being on the lorry as 'hamalis' and there is written

statement of respondent No.1 wherein, he clearly admits

they were present on the lorry as 'hamalis' and therefore

the employer-employee relationship cannot be disputed

and since the finding of fact recorded by the learned

Commissioner as a final fact finding authority is not liable

to be disturbed in an appeal under Section 30(1) of the

Employees' Compensation Act, 1923. He also contended

that the finding of the learned Commissioner that

claimants had all suffered loss of earning capacity to the

extent of 30% is based on evidence and therefore, it is

not liable to be set aside. He also contended that the

interest should be awarded at 12% p.a. with effect from

30 days from the date of the accident till the date of

realization which is mandatory and learned Commissioner

has committed an error in awarding interest from the date

of the award.

9. While it is true that in the complaint lodged by

the driver of the lorry in question - Rajashekar, he has

mentioned only about the clearner Subhash being with

him at the time of the accident and there is no mention

about these claimants proceeding with him as 'hamalis'

learned Commissioner having placed reliance on the

written statement filed by respondent No.1 to the effect

that they were working in the said lorry owned by him as

'hamalis', and therefore such finding regarding employer-

employee relationship having been recorded as a fact

finding authority, the same is not liable to be interfered

with. Since the learned Commissioner has arrived at the

conclusion based on evidence, it cannot be considered as

perverse and therefore, I reject the contention of the

learned counsel for the appellant.

10. In regard to the disability and consequently loss

of earning capacity fixed by the learned Commissioner at

30% for each of the claimants is concerned, the evidence

of P.W.5 - Dr. Phaniraj shows that there was union of all

the fractures and therefore, the disability and the loss of

earning capacity fixed at 30% is obviously an excessive

one. Taking into consideration the nature of the injuries

suffered and the union of the fractures, I am of the view

that the extent of disability and the consequent loss of

earning capacity could be fixed at 10% for the claimants.

Accordingly, the compensation awarded is liable to be

recalculated as follows :

Claimant - Naineppa son of Veeranna : Rs.3,000/- x 60% x 197.06 x 10% = Rs.35,470/- as against Rs.1,06,412/- awarded by the learned Commissioner.

Claimant Parameshi son of Kumaraswamy: Rs.3,000/- x 60% x 218.47 x 10% = Rs.39,324/- as against Rs.1,17,973/- awarded by the learned Commissioner.

Claimant Krishnappa son of Basappa : Rs.3,000/- x 60% x 207.98 x 10% = Rs.37,436/- as against Rs.1,12,309/- awarded by the learned Commissioner.

Claimant Siddappa son of Gurubasappa : Rs.3,000/- x 60% x 203.85 x 10% = Rs.36,693/- as against Rs.1,10,079/- awarded by the learned Commissioner

with interest thereon at 12% per annum w.e.f. thirty days from the date of accident till the date of realization.

11. Accordingly, I proceed to pass the following:

ORDER

The appeals are allowed in part by modifying the

award to the extent that the claimant - Naineppa is

entitled to a compensation of Rs.35,470/-, claimant

Parameshi is entitled to a compensation of Rs.39,324/-,

claimant Krishnappa is entitled to a compensation of

Rs.37,436/- and claimant Siddappa is entitled to a

compensation of Rs.36,693/- as against Rs.1,06,412/-,

Rs.1,17,973, Rs.1,12,309/- and Rs.1,10,079/-

respectively, awarded by the learned Commissioner with

interest thereon at 12% per annum with effect from 30

days from the date of the accident till the date of

realization.

The amounts in deposit before this Court, if any,

shall be transmitted to the jurisdictional Court of

learned Senior Civil Judge forthwith along with the

records.

The excess amount in deposit shall be returned

to the appellant.

In view of disposal of the appeals, pending

interlocutory applications, if any, do not survive for

consideration.

Sd/-

JUDGE Mgn/-