The Manager, Iffco Tokio General ... vs Siddanagowda S/O Hanumantagowda ...
2021 Latest Caselaw 2770 Kant

               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.24115 OF 2009 (WC)

BETWEEN
THE MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
CUSTOMER SERVICE CENTRE,
KSCMF BUILDING, III FLOOR, III BLOCK,
#8,CUNNINGHAM ROAD, BANGALORE,
REPRESENTED BY ITS AUTHORIZED SIGNATORY.
                                                    ...APPELLANT
(BY SRI. RAVINDRA R MANE, ADV.,)

AND
1.    SIDDANAGOWDA S/O HANUMANTAGOWDA
      DIGGIGOWDRU,
      AGE: 25 YEARS, OCC: CLEANER,
      R/O: INGALAGONDI,
      TQ: HIREKERUR, DIST: HAVERI.

2.    BASAVARAJ S/O TIRAKAPPA MALAGI,
      AGE: MAJOR, OCC: BUSINESS,
      R/O: INGALAGONDI,
      TQ: HIREKERUR,DIST: HAVERI.
                                                ...RESPONDENTS
(BY SRI. MAHESH SHIVAPUJI, ADV., FOR R1;
R2- NOTICE SERVED BUT UNREPRESENTED)

      THIS MFA IS FILED U/S.30(1) OF THE W.C.ACT, PRAYING TO
SET ASIDE THE JUDGEMENT AND AWARD DATED 30.10.2009, PASSED
IN WCA NO.1/2009 BY THE LABOUR OFFICER & COMMISSIONER FOR
WORKMEN'S COMPENSATION HAVERI, DIST: HAVERI.
                                  2



      THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

This is an insurer's appeal calling in question the legality

and validity of the award dated 30.10.2009 in WCA No.1/2009

passed by the learned Labour Officer and Commissioner for

Workmen's Compensation, Haveri (for short "the

Commissioner").

2. The brief facts are that claimant was working as

cleaner in Mahindra Max Pick-up goods vehicle bearing

registration No.KA-27/A-511 owned by respondent No.1-

Basavaraj Tirakappa Malagi and insured with the appellant

herein. The allegation is that on 03.08.2008, the vehicle met

with an accident and claimant suffered grievous injuries.

3. The only substantial question of law urged by the

learned Counsel for the appellant-insurance company is that the

loss of earning capacity assessed at 45% by the learned

Commissioner is wholly perverse and such a finding is not

supported by evidence. He also submitted that the claimant has

taken treatment 30 hours after occurrence of the accident with

PW2-Dr.Ullal, who is having only a clinic and no regular hospital.

He contended that if compensation is awarded on the basis of

such false certificates, miscarriage of justice will be occasioned

and therefore, this appeal is liable to be allowed and claim

petition dismissed.

4. I have given my anxious consideration to the

submissions made by the learned counsel for the appellant and I

have perused the records.

5. Even though respondent No.1-owner of the insured

vehicle has admitted the employer-employee relationship, he

has not admitted the injuries suffered by the claimant.

Respondent No.2, who is the appellant herein has also denied all

the material averments made in the claim petition. Ex.P1-the

complaint shows that the claimant was working as cleaner in the

said lorry and he was injured in the accident. Ex.P3 is the wound

certificate issued by PW2-Dr.Umanath R Ullal. Learned counsel

for the appellant strongly urged the fact that claimant had not

immediately gone to any hospital after the accident which would

have been the natural conduct of any person who had suffered

fracture injuries in the accident and not doing so itself shows

that taking advantage of the accident and minor injuries

suffered, in order to claim compensation, wound certificate

showing exaggerated versions were being created. In this behalf,

he points out that Dr.Umanath R Ullal, who was only having a

clinic has examined this claimant on 04.08.2008 at 6.00 p.m.

that is more than a day after suffering the injuries and the

certificate Ex.P3 shows that claimant had suffered fracture of

lower end of right radious and also compressed fracture of L-5

vertebra. Based on the same, PW2 has issued another certificate

Ex.P6 and has assessed the total disability at 55%. Learned

Commissioner taking into consideration the above two

certificates, has assessed the loss of earning capacity at 45%.

The fact that the claimant has taken more than a day's time in

order to take medical treatment, when he claims that he had

suffered fracture of the hand and also compressed fracture

arouses some doubt about the genuineness of the case made out

by the claimant. In that view of the matter, I hold that 45% of

loss of earning capacity made by the learned Commissioner is on

higher side and it should be taken at 35%. Accordingly,

compensation awarded is required to be recalculated as follows:

Rs.3,500 x 60% x 218.17 x 35% = 1,60,354/- as against

Rs.2,06,171/- awarded by the Commissioner.

6. Further, it is noticed that the learned Commissioner

has awarded interest on the compensation w.e.f. 30 days from

the date of adjudication and as per the statute itself the claimant

is entitled for grant of interest w.e.f. 30 days from the date of

the accident and the same is required to be rectified. Hence, the

following:

ORDER

The above appeal is allowed in part.

Accordingly, The award dated 30.10.2009 passed by the learned Commissioner in WCA NF No.01/2009 is modified to the extent that the claimant is entitled to the compensation of Rs.1,60,354/- as against Rs.2,06,171/- awarded by the Commissioner.

The compensation amount shall carry interest at the rate of 12% per annum w.e.f. 30 days from the date of the accident.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration.

Sd/-

JUDGE

yan