Nilakantappa @ Neelangouda vs Mallikarjun S/O Rajappa ...
2021 Latest Caselaw 2833 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

               DATED THIS THE 16TH DAY OF JULY 2021

                             BEFORE

             THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                   MFA NO.23793 OF 2009 (WC)
                               C/W
                    MFA NO.4331 OF 2010 (WC)

IN MFA NO.23793 OF 2009

BETWEEN:

NILAKANTA @ NEELANAGOUDA S/O BASANAGOUDA
@ IRRANGOUDA MALAMMANAVAR @ NAREGAL
AGE:24 YEARS, OCC:AT PRESENT NIL,
R/O GURUSIDDESHWAR COLONY, NEKAR NAGAR,
OLD HUBLI.
                                                     ...APPELLANT
(BY SMT. SHAILA BELLIKATTI, ADV. FOR SRI. SURESH P HUDEDAGUDDI,
SRI. A.C. PURAD, SPACE LAW ASSOCIATES, ADVOCATES)

AND:

1.     MALLIKARJUN S/O RACHAPPA SANTANNAVAR
       AGE:MAJOR, OCC:OWNER OF CANTER TRUCK
       NO.KA-25/B-4775, R/O SANKALP
       14TH CROSS, CHANDRAKANT NAGAR, HUBLI.

2.     THE MANAGER, BAJAJ ALLIANZ
       GENERAL INSURANCE COMPANY LTD.,
       VIVEKANAND CORNER, DESAI CROSS,
       CLUB ROAD, HUBLI.
                                                ...RESPONDENTS

(BY SRI.S.K. KAYAKAMATH, ADV. FOR R2) (R1-SERVED)

THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO ALLOW THIS APPEAL AND AWARD COMPENSATION AS CLAIMED BEFORE THE WORKMEN'S COMPENSATION COMMISSIONER AND LABOUR OFFICER, HUBLI IN WCA/NF NO.71/2006 IN THE INTEREST OF JUSTICE AND EQUITY.

IN MFA NO.4331/2010

BETWEEN:

THE BAJAJ ALLIANZ GENERAL INSURANCE CO HUBLI, REP. BY THEIR AUTHORISED SIGNATORY AND LAW OFFICER AT BRANCH OFFICE, VIVEKANAND CORNER, DESAI CROSS, CLUB ROAD, HUBLI, ...APPELLANT (BY SRI. S.K. KAYAKAMATH, ADVOCATE)

AND:

1. NEELAKANTA @ NELANAGOUDA S/O BASAVANA GOUDA @ ERANNAGOUDA MALAMMANAVAR @ NAREGAL AGED ABOUT 24 YEARS, OCC:DRIVER R/O MUKHAM, GURU SIDDESHWARA COLONY, NEKARA NAGAR, OLD HUBLI.

2. MALLAKARJUN S/O RACHAPPA SANTANNAVAR MAJOR, RESIDING AT 14TH CROSS, CHANDRAKANT NAGAR, HUBLI.

...RESPONDENTS (BY SMT. SHAILA BELLIKATTI, ADV. FOR SRI. C.S. BENNI, SMT. ROOPA BELLIKATTI AND SRI. SURESH P HUDEDAGUDDI, ADVS. FOR R1) (SRI. SANTOSH S HATTIKATAGI, ADV. FOR R2)

THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO CALL FOR RECORDS IN THE CASE PASSED IN WCA/NF NO.71 OF 2006, ON THE FILE OF COMMISSIONER FOR WORKMEN'S COMPENSATION, DIV-2, HUBLI, DATED 30.01.2009 EXAMINE THE SAME AND ON BEING SATISFIED OF THE ILLEGALITY AND UNJUSTNESS OF THE IMPUGNED JUDGMENT AND AWARD DATED 30.1.2009 PASSED THEREIN, THE SAME BE SET-ASIDE AND THE ABOVE APPEAL BE ALLOWED AND COSTS AND SUCH OTHER AND FURTHER RELIEFS AS IS DEEMED FIT AND PROPER TO BE GRANTED UNDER THE CIRCUMSTANCES OF THE CASE.

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

COMMON JUDGMENT

These appeals are by the claimant as well as

insurance company calling in question the award dated

30.1.2009 passed in WCA/NF No.71 of 2006 by the

learned Labour Officer and Commissioner for Workmen's

Compensation, Sub-division-2, Hubli (for short,

'Commissioner').

2. Brief facts are that the claimant was working as

driver in Canter Truck bearing registration No.KA-25/B-

4775 owned by respondent No.1-Mallikarjun Rachappa

Santannavar and insured with the appellant-insurer. On

8.11.2006, when the claimant was driving the said truck

on Poona-Bangalore Highway, near Soorashetti Koppa, an

accident took place resulting in grievous injuries to the

claimant. In connection with the said accident, a case in

Crime No.270/2006 was registered in jurisdictional Police

Station.

3. Respondent No.1-Mallikarjun Rachappa

Santannavar entered appearance and filed written

statement before the learned Commissioner admitting

employer-employee relationship and also other relevant

facts stated in the claim petition. The appellant-insurance

company filed its separate and detailed written statement

denying the material averments made in the claim

petition, in particular, it has disputed the identity of the

claimant as well as his holding valid and effective driving

license as on the date of the accident.

4. During the enquiry, the claimant examined himself

as PW1 and he also examined a qualified medical

practitioner by name Dr. Mahantesh Hanchinal as PW2 and

Exs.P1 to P14 were marked. Respondent No.1 examined

himself as RW1 and appellant-insurer examined one of its

officials as RW2. The appellant-insurer got marked policy

of insurance, claim form submitted by respondent No.1

and ration card extract of the claimant.

5. Upon consideration of the materials produced

before him and evidence let in, learned Commissioner

answered the points arising for consideration in favour of

the claimant and awarded a compensation of

Rs.2,66,191/- with interest thereon at 12% per annum.

6. Sri. S.K. Kayakamath, learned counsel appearing

for appellant-insurance company in support of his appeal

advanced several contentions. Firstly, he contended that

finding of the learned Commissioner in this case that

employer-employee relationship has been established

between respondent No.1-Mallikarjun Rachappa

Santannavar and claimant is based on no evidence and it

is perverse. He submitted that the claimant has given

varying names at various stages and he particularly

pointed out that the name shown in the DL does not tally

with the name stated by him in the cause title of his claim

petition. He therefore submitted that identity of the

person who was driving the vehicle in question at the

point of accident has not been established in this

proceedings before the learned Commissioner and

therefore, finding of the learned Commissioner is wholly

perverse. He further contended that the claimant was not

having valid and effective driving license at the time of

the accident. In this behalf, specific contention is taken

by Sri. S.K. Kayakamth, learned counsel for the insurer

that even though the claimant was driving the vehicle in

question at the time of accident, since he was not having

valid and effective driving license to drive the vehicle in

question, a false document has been produced as Ex.P11

purporting to that of claimant himself. Accordingly, the

learned counsel for the insurer prays that the appeal filed

by him is liable to be allowed and claim petition should be

dismissed.

7. Smt. Shaila Bellikatti, learned counsel appearing

for respondent/claimant in support of her appeal, per

contra, submits that the learned Commissioner based on

evidence produced before him has given clear finding that

the claimant himself was driving the lorry in question and

there is no doubt about identity of the claimant as Ex.P11

held by claimant himself and since it is a finding of fact

recorded by the learned Commissioner, the same is not

liable to be interfered with in an appeal filed under

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

She further submitted that the claimant has examined a

qualified medical practitioner as PW2 and he has stated

about permanent physical disability suffered by the

claimant and based on such medical evidence and also his

own assessment of loss of earning capacity, the learned

Commissioner has awarded compensation and such being

the case, the award is not liable to be interfered with.

She also pointed out that respondent No.1/owner of the

vehicle in question and insured, who examined himself as

RW1, has spoken categorically that the claimant was

working under him as driver in the vehicle in question and

he met with an employment related accident and suffered

physical disability. Therefore, she submits that appeal

filed by the insurer is liable to be dismissed and

claimant's appeal deserves to be allowed.

8. I have given my anxious consideration to the

submissions made on either side and also perused the

records.

9. Insofar as employer-employee relationship

between respondent No.1-Mallikarjun Rachappa

Santannavar and claimant is concerned, the claimant has

asserted about it in the claim petition and he has also

deposed about it before the learned Commissioner.

Respondent No.1 has filed written statement specifically

admitting that the claimant was driving the vehicle in

question at the material point of time as his employee and

he has suffered employment related injuries. Further,

respondent No.1 examined himself before the learned

Commissioner as RW1 and he has affirmed on oath that

the claimant was driver of the vehicle in question at the

time of accident and he has suffered injuries on account

of the accident. The learned Commissioner after referring

to relevant materials placed on record has given specific

finding that there is no dispute about the identity of the

claimant being driver at the time of the accident in

respect of canter truck bearing registration No.KA-25-

B/4775 as an employee of respondent No.1. Such a

finding of fact recorded by the learned Commissioner

being supported by evidence cannot be said to be

perverse and therefore, I am not inclined to interfere with

the same.

10. Sri. S.K. Kayakamath, learned counsel has

particularly contended that the name mentioned in the DL

at Ex.P11 is different from the name of the claimant

mentioned in the claim petition. The claimant as well as

respondent No.1/owner of the vehicle in question have

spoken about the claimant having multiple names with

alias and the learned Commissioner has accepted the

same after appreciating the entire evidence and therefore,

no good ground is made out to interfere with such finding.

11. Ex.P11 shows that the claimant was in

possession of DL which authorized him to drive heavy

transport vehicle at the time of the accident. Since the

canter vehicle in question and the driving license to drive

heavy transport vehicle belong to same class of vehicle,

decision of the Hon'ble Supreme Court in the case of

Mukund Dewangan Vs. Oriental Insurance Company

Ltd. reported in (2017) 14 SCC 663 is squarely

applicable to this case and I hold that the claimant was

authorized to drive heavy goods vehicle also.

12. The learned Commissioner has recorded a

finding that the claimant has suffered loss in the earning

capacity to the extent of 55%. The learned Commissioner

has discussed in detail various injuries suffered by the

claimant on account of the accident and he also referred

to the opinion given by the qualified medical practitioner

namely PW2. This shows that before assessing the loss of

earning capacity, the learned Commissioner has applied

his mind to the relevant aspects and such finding of fact

recorded by him being supported by evidence, I am not

inclined to hold that it is perverse. The learned

Commissioner upon consideration has applied relevant

factor and awarded compensation of Rs.2,66,191/-.

Therefore, there is no good ground to interfere with the

same.

13. In regard to award of interest, the statute itself

is very clear that interest shall be awarded on the

compensation amount w.e.f. thirty days from the date of

accident till depositing the compensation amount.

Accordingly, in this case also, the award amount shall

carry interest at the rate of 12% per annum w.e.f. thirty

days from the date of accident till depositing

compensation. Hence, the following:

ORDER

a) MFA No.23793/2009 filed by the claimant

is allowed in part.

b) MFA No.4331/2010 filed by the insurer is

dismissed.

c) While maintaining the quantum of

compensation amount, it is directed that

the claimant is entitled to receive

interest on the award amount at the rate

of 12% per annum w.e.f. thirty days from

the date of accident till depositing the

compensation amount.

d) The amount in deposit, if any, shall be

transmitted to the jurisdictional Court of

learned Senior Civil Judge forthwith along

with records.

e) Pending applications, if any, do not

survive for consideration and accordingly,

they are dismissed.

Sd/-

JUDGE

JTR