Karnataka High Court

The Branch Manager vs Mohammad Gous on 16 July, 2021

Author: P.Krishna Bhat

               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.20110 OF 2010 (WC)
BETWEEN
THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
HUBLI CO-OP COTTON SALES SOCIETY LTD.,
NEW COTTON MARKET, HUBLI,
NOW REPRESENTED BY ITS DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD,
SUJATA COMPLEX HUBLI.
                                                    ...APPELLANT
(BY SRI. RAJASHEKHAR S ARANI, ADV.,)

AND
1.    SRI. MOHAMMAD GOUS
      S/O. ABDUL HAMEED DALYAT,
      AGE: 34 YEARS, OCC:DRIVER,
      R/O: SANTOSHNAGAR,
      VIJAYANAGAR, HUBLI, NO.76.

2.    SABEL AHMAD UMACHAGI,
      AGE: MAJOR, OCC:PRIVATE SERVICE AND
      OWNER OF LORRY NO.KA-25/B-2731,
      R/O: COEN ROAD, HUBLI.
                                                ...RESPONDENTS
(BY SRI. CHETAN T LIMBIKAI, ADV., FOR R1 THROUGH V.C.;
SRI. D. L. LADKHAN, ADV., FOR R2)

     THIS  MFA   IS   FILED   U/SEC.30(1)  OF    WORKMEN'S
COMPENSATION ACT, 1923, PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED:19.09.2009 PASSED IN W.C.NO. 99/2006 BY THE
LEARNED LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
                                   2


COMPENSATION, HUBLI, SUB-DIVISION-I, HUBLI BY ALLOWING THIS
APPEAL.

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


                            JUDGMENT

In this appeal at the instance of the insurer, the only

substantial question of law that has been raised is:

"Whether the injuries alleged to have been sustained by the employer could be said to be arising out of the employment?"

2. Facts lie in a narrow compass. The claim of the

claimant before the learned Labour Officer and Commissioner for

Workmen's Compensation, Sub Division-I, Hubli (for short "the

Commissioner") is that he was working as driver in lorry bearing

registration No.KA-25/B-2731 owned by respondent No.1-

Sabeelahmed S Umachagi (before the learned Commissioner)

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

13.06.2006 while the claimant was driving the lorry in question

as per the instructions of respondent No.1 near Halligudi, it met

with an accident and he suffered grievous injuries.

3. Respondent No.1 entered appearance and filed

written statement admitting the employer-employee relationship

between him and the claimant and also the accident.

4. The appellant-insurance company filed a separate

written statement denying the material averments made in the

claim petition.

5. Claimant examined himself as PW1 and also

examined a qualified medical practitioner Dr.Madivalappa

Barigidad as PW2. Ex.P1 to Ex.P11 were marked. Respondents

did not examine any witnesses but Ex.R1 and Ex.R2 were

exhibited.

6. Learned Commissioner, upon his examination of the

records and the evidence let in, allowed the claim petition

awarding the compensation of Rs.94,589/- with interest thereon

at 12% per annum.

7. Learned counsel for the appellant-insurance

company vehemently contended that the finding of the learned

Commissioner that the injuries alleged to have been suffered

was in the course of and arising out of the employment is based

on no evidence and therefore, it is perverse. In this behalf, he

points out from the evidence of PW1 to the effect that as per the

entry in the indoor case sheet, Ex.P.8, claimant had given

history in the hospital that he had suffered injury while climbing

down a staircase and because of a fall. He therefore, submits

that the award passed by the learned Commissioner is liable to

be set aside and the appeal allowed.

8. Learned counsel appearing for the respondents, per

contra, vehemently submitted that the finding recorded by the

learned Commissioner to the effect that claimant had suffered

injuries on account of the accident, which took place while he

was driving the lorry of respondent No.1 and therefore, it is an

employment related injury which is a finding of fact and

therefore, it is not liable to be interfered with. It was further

submitted by the learned counsel for the respondents that on

account of injury suffered by the claimant, he had suffered loss

of earning capacity and therefore, the award passed by the

learned Commissioner is just, fair and reasonable and it is liable

to be sustained.

9. The claimant has no doubt contended and

respondent No.1 in his written statement concurred with the

same that while driving the lorry of respondent No.1 as a driver,

the lorry in question namely lorry bearing registration No.KA-

25/B-2731 met with an accident on 13.06.2006 at 1.00 p.m. and

claimant suffered grievous injuries. Claimant in support of his

case that he had suffered permanent disability and consequent

loss in the earning capacity has examined PW2-Dr.Madivalappa

Barigidad. He is stated to be a Professor of Surgery in KIMS,

Hubli. During the course of cross-examination, PW2 has

admitted that in the indoor case sheet maintained in KIMS,

Hubli, the claimant had given the history of injury as on account

of fall from staircase. The said indoor case sheet is produced and

exhibited as Ex.P8. The history recorded in the indoor case sheet

on 14.06.2006 reads as follows:

"H/o fall (self-fall) while descending down stairs (yesterday) at about 1.00 p.m. on 13.06.2006."

10. The seal of the professor of Department of Surgery,

KIMS is put on the said history. The same history is repeated in

the bottom portion of the case sheet maintained by KIMS, Hubli.

Learned counsel for the claimant-respondent however brings to

my notice Ex.P2, which is the complaint lodged by one Nagaraj,

who is stated to be cleaner working in the said lorry. In the said

complaint, it is stated that claimant while driving the lorry in

question had dashed the same to another lorry and on account

of the same, he had suffered injury. It is necessary to notice that

this complaint was lodged on 16.06.2006 and the entry in the

case sheet Ex.P8 is dated 13.06.2006. In that view of the

matter, much importance cannot be attached to what is stated in

Ex.P2, which is three days after the accident and two days after

the history was given in KIMS, Hubli. Learned Commissioner has

not adverted his mind to the above important aspect of the

evidence, which is available on record, and therefore, his finding

that the injury suffered by the claimant was on account of

employment related accident which took place in the course of

employment cannot be said to be based on evidence. On the

other hand, it clearly shows that claimant had suffered the

injuries while getting down the stairs and on account of self-fall.

In that view of the matter, the finding recorded by the learned

Commissioner is perverse and it is passed by ignoring the

material evidence available on record and thus, the appeal is

liable to be allowed. Hence, the following:

ORDER

The above appeal is allowed.

The judgment and order dated 19.09.2009 passed in W.C.No.99/2006 by the learned Labour Officer and Commissioner for Workmen's Compensation, Sub Division-I, Hubli is set aside and the claim petition is dismissed.