Karnataka High Court
The Divisional Manager vs A Subbarao S/O Adinarayanrao on 12 July, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.21081 OF 2009 (WC)
C/W
MFA NO.21082 OF 2009 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
BELLARY, REP. BY ORIENTAL INSURANCE
COMPANY LTD., REGIONAL OFFICE,
SUMANGALA COMPLEX, 2ND FLOOR,
LAMINGTON ROAD,
HUBLI-580020.
...COMMON APPELLANT
(BY SRI.S.K. KAYAKAMATH, ADVOCATE)
IN MFA NO.21081/2009
AND:
1. A SUBBARAO S/O ADINARAYANARAO
AGE:30 YEARS, OCC:EX-DRIVER,
R/O MUNIRABAD, TALUK & DIST:KOPPAL.
2. SRI. C.H. GOVIND RAO S/O SURYA RAO
OWNER OF VEHICLE BEARING NO.KA-36/5323,
HOUSE NO.55, SHANKAR NAGAR CAMP,
MANVI TALUK, RAICHUR DISTRICT.
...RESPONDENTS
(BY SRI.K. ANANDKUMAR, ADV. FOR R1)
(R2-SERVED)
2
IN MFA NO.21082/2009
AND
1. HANUMANT S/O TULACHAPPA
AGE:28 YEARS, OCC:EX-CLEANER,
R/O MUNIRABAD, TALUK & DIST:KOPPAL.
2. SRI. C.H. GOVIND RAO S/O SURYA RAO
OWNER OF VEHICLE BEARING NO.KA-36/5323,
HOUSE NO.55, SHANKAR NAGAR CAMP,
MANVI TALUK, RAICHUR DISTRICT.
....RESPONDENTS
(BY SRI.K. ANANDKUMAR, 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 SET-ASIDE THE JUDGMENT AND ORDER DATED
12.11.2008 PASSED IN WCA/NF NO.426 AND 427 OF 2006 BY THE
LEARNED LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, KOPPAL AND TO PASS ANY OTHER ORDER OR ORDERS
AS THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are at the instance of the insurer
calling in question the legality and validity of the award
dated 12.11.2008 passed in WCA/Nos.426 and 427 of
2006 by the learned Labour Officer and Commissioner for
Workmen's Compensation, Koppal (for short,
'Commissioner').
2. Brief facts are that claimant No.1-A Subbarao S/o
Adinarayanarao was working as driver and claimant No.2-
Hanumant S/o Tulachappa was working as a cleaner in
lorry bearing registration No.KA-36/5323 owned by
respondent No.1/C.H. Govindarao and insured with the
appellant herein. It is stated that on 30.4.2006 as per
the direction of respondent No.1, claimant No.1-Subbarao
was driving the said lorry and claimant No.2 was
proceeding in the said lorry as a cleaner and at that time,
the said lorry hit one pedestrian and on account of
applying sudden brake, it dashed to a Boulder. On
account of the same, both claimants suffered grievous
injuries.
3. Respondent No.1/C.H. Govindarao entered
appearance and filed a detailed written statement
admitting employer-employee relationship and also the
accident taking place at 6 p.m. on 30.4.2006 near 2 n d
Cross of LMC mines. The appellant-insurance company
filed separate written statement denying the material
averments made in the claim petition.
4. During the enquiry, the claimants examined
themselves as witnesses and also examined a qualified
medical practitioner by name Dr. Vishwaprasad as PW3
and Exs.P1 to P8 were marked.
5. Upon consideration of the materials produced and
the evidence let in, the learned Commissioner answered
the points arising for consideration in favour of the
claimants and against the appellant/insurance company
and awarded compensation of Rs.94,219/- to claimant
No.1-Subbarao and Rs.1,17,131/- to claimant No.2-
Hanumant with interest thereon at 12% per annum.
6. Learned counsel appearing for the insurance
company strenuously contended that there was no injury
suffered by both the claimants and the claim petition is a
fraudulent one. In this behalf, he submits that as per
evidence of PW1 and PW2, lorry had hit one pedestrian
and thereafter hit a Boulder and on account of the same,
the claimants had suffered injuries. He submits that
Ex.P1-complaint clearly shows that claimant No.1 was
driver of the lorry in question and he had run the lorry
over the husband of the complainant and on account of
the same, he had died and thereafter, he had stopped the
lorry. He submitted that there is no reference in Ex.P1-
complaint to any of the claimants suffering injuries. He
also submitted that assessment of physical disability and
consequent assessment of loss of earning capacity made
by the learned Commissioner is excessive and same is
liable to be set-aside.
7. Learned counsel for respondent/claimant, per
contra, contended that the evidence, more particularly
wound certificate and disability certificate, show that the
claimants had suffered employment related injuries and
based on the same, the learned Commissioner has made
assessment of loss of earning capacity suffered by the
claimants and the said finding being based on his
appreciation of evidence is not liable to be set-aside. In
this behalf, he placed reliance on a decision of the Hon'ble
Supreme Court in the case of Golla Rajanna & Others
Vs. Divisional Manager & Another reported in (2017)
SCC 45. Therefore, he submits that the appeals are liable
to be dismissed.
8. I have given my anxious consideration to the
submissions made on either side and also perused the
records.
9. Assertion of the claimants in the claim petition is
to the effect that on 30.04.2006, while claimant No.1-
Subbarao was driving the lorry in question and claimant
No.2-Hanumant was proceeding in the said lorry as a
cleaner, it dashed against a pedestrian and thereafter, it
dashed to Boulder and the due to the impact, claimants
suffered grievous injuries. In connection with the said
accident, a case in Crime No.111/2006 was registered in
Sandur Police Station of Bellary District. The said case
was registered based on the complaint of one Smt.
Durgamma which is at Ex.P1. In the said complaint, Smt.
Durgamma has stated that on 30.04.2006 at about 6 p.m.,
claimant No.1 was driving the lorry in question in a rash
and negligent manner and claimant-Hanumant was sitting
in the lorry as cleaner and on account of negligent driving
of the claimant-Subbarao, it ran over husband of the
complainant and he died in the spot itself. It is stated in
the complaint-Ex.P1 that after the lorry ran over the
husband of complainant, these claimants had stopped the
lorry and thereafter, they had told their names to the
complainant. The case was registered at about
10 a.m. on 1.5.2006 which is confirmed by endorsement
made by the learned Magistrate on Ex.P1-FIR. As per
wound certificate produced by the claimants, they had
appeared before PHC, Toranagallu on 2.5.2006 at 8 a.m.
(vide Exs.P4 and P5). If really claimant had suffered such
serious fractures on 30.4.2006 as alleged by them, it is
surprising that they have shown themselves to Medical
Officer only on 2.5.2006 at about 8 a.m. and not at any
time earlier.
10. PW1-A Subbarao, who was driver of the lorry in
question admitted in his cross-examination as follows:
" ªÁºÀ£ª
À ÀÅ C¥ÀWÁvÀzÀ ¢£ÀzAÀ zÀÄ gÀ¸ÉÛAiÀÄ §¢AiÀÄ°èzÀÝ PÀ°èUÉ rQ̺ÉÆqÉ¢gÀÄvÀÛzÉ
¥À°ÖAiÀiÁVgÀĪÀÅ¢®è."
11. However, both claimants in their affidavit filed
in lieu of examination-in-chief have stated that after
hitting the boulder, lorry had turned turtle. This admission
taken along with facts narrated in the complaint(Ex.P1) by
Durgamma clearly shows that version of the complainant
that the lorry on account of rash and negligent driving by
claimant-Subbarao had run over her deceased husband
and thereafter, it was stopped. In the cross-examination,
claimant-Subbarao has admitted that the lorry did not
turn turtle. The averment in the claim petition that the
lorry had dashed to Boulder which fact is not seen in the
complaint(Ex.P1) filed by Durgamma appears to be an
afterthought in order to make out a case of their suffering
injuries and that perhaps is the reason why these two
claimants did not appear before the Medical Officer
immediately after the accident but appeared on 2.5.2006
i.e. two days after the accident. In the charge sheet
which is at Ex.P2, there is absolutely no mention about
lorry dashing to any Boulder. On the other hand, what is
mentioned in the charge sheet is that the lorry after
running over deceased Sanjeevappa, husband of the
complainant-Durgamma, the claimants had abandoned the
lorry in the spot itself and they had run away from there
informing the police about the incident.
12. Learned counsel appearing for the appellant-
insurance company has drawn my attention to the
disability certificate at Ex.P7 issued by Dr. Vishwaprasad
which shows that it is not the certificate pertaining to
claimant-Hanumant, but it is pertaining to one Manjunatha
S/o Channappa Dhidagi. The learned Commissioner
without considering the above aspects of the matter has
proceeded to give his finding and award compensation.
Therefore, finding of the learned Commissioner is based
on no evidence and it is perverse and accordingly, the
same is liable to be set-aside. Hence, the following:
ORDER
a) The above appeals are allowed.
b) The impugned awards dated 12.11.2008
passed by the learned Commissioner in
WCA/Nos.426 and 427 of 2006 to the
extent of fastening liability on the
appellant/insurance company is concerned,
are set-aside.
c) The amount in deposit before this Court, if
any, shall be refunded to the appellant-
insurance company forthwith.
d) Pending applications, if any, do not survive
for consideration and accordingly, they are
dismissed.
Sd/-
JUDGE
JTR
