The New India Assurance Co. Ltd. vs Babanna S/O Fakirappa Shetsanadi
2021 Latest Caselaw 2837 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.20610 OF 2010 (WC)
BETWEEN
THE NEW INDIA ASSURANCE COMPANY LIMITED,
DIVISIONAL MANAGER,
A. M. ARCADE, VIDYRTHI BHAVAN,
C.J.HOSPITAL ROAD, DAVANGERE,
REPRESENTED BY REGIONAL MANAGER,
REGIONAL OFFICE,
2-B UNITY BUILDING ANNEXE
P KALINGARAO ROAD,
(MISSION ROAD), BANGALORE.
                                                    ...APPELLANT
(BY SRI. G N RAICHUR, ADV.,)

AND
1.    BABANNA S/O FAKIRAPPA SHETSANADI
      AGE: 44 YEARS, OCC: CLEANER,
      R/O: DOLLESWAR POST SURELESWAR
      TQ: HANGAL, DIST HAVERI.

2.    ANILKUMAR S/O HULLAPPA
      KUNTANHOSHALLI,
      AGE: MAJOR, OCC: OWNER OF KA-25/3529,
      R/O: DOLLESWAR POST SURELESWAR,
      TQ HANGAL.
                                                ...RESPONDENTS
(R1 & R2 - NOTICE SERVED)

     THIS MFA IS FILED U/S.30(1) OF THE WORKMEN'S
COMPENSATION ACT 1923, PRAYING TO SET ASIDE THE JUDGEMENT
AND AWARD DATED 09.12.2009, IN W.C.NF NO.140/2006 PASSED BY
                                 2


THE LABOUR OFFICER AND          COMMISSIONER     FOR   WORKMEN'S
COMPENSATION HAVERI.

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

                             JUDGMENT

This is an appeal at the instance of the insurer calling in

question the legality of the award dated 19.10.2009 in WC.NF

No.140/2006 passed by the learned Labour Officer and

Commissioner for Workmen's Compensation, Haveri (for short

"the Commissioner").

2. Brief facts are that claimant Babanna was working as

cleaner cum Hamali in luggage tempo bearing registration

No.KA-25/3529 owned by respondent No.1-Anilkumar and

insured with the appellant herein. On 11.06.2006, when claimant

was working as cleaner cum hamali in luggage tempo in question

and while the said tempo was held up in a traffic jam near

Devaragudda, he was busy in adjusting the tarpaulin cover of

the luggage tempo, a vehicle bearing registration No.KA-

27/8526 came from Kajjari village and dashed to the luggage

tempo in question and on account of the same, the claimant

suffered grievous injuries. In connection with the accident, a

case in Crime No.69/2006 was registered in Ranebennur Rural

Police Station.

3. Respondent No.1-Anilkumar filed his written

statement admitting the employer-employee relationship

between him and the claimant and also the employment related

injuries. Appellant filed its separate detailed written statement

denying the material averments made in the claim petition.

4. During the course of enquiry, claimant examined

himself as PW1 and examined a qualified medical practitioner as

PW2. Ex.P1 to Ex.P13 were also marked. Appellant examined

one of its officials as RW1.

5. Learned Commissioner, upon his appreciation of the

materials produced and the evidence adduced, allowed the claim

petition awarding a compensation of Rs.1,46,968/- with interest

thereon at 12% per annum.

6. During the course of his award, learned

Commissioner recorded a finding that claimant was aged 40

years at the time of the accident and he was earning wages of

Rs.3,500/- per month. He further recorded a finding that

claimant had suffered loss of earning capacity to the extent of

38% on account of the accident.

7. Learned counsel Sri. G. N. Raichur appearing for the

appellant-insurance company advanced three fold contentions.

He, firstly, contended that the finding of the learned

Commissioner regarding employer-employee relationship is

based on no evidence and perverse. He further contended that

at the time of the accident, namely. on 11.06.2006 the

temporary registration issued by the competent authority had

already expired and there is violation of the material terms of

the policy and therefore, appellant is not liable to reimburse the

compensation. The last contention of the learned counsel for the

appellant is that the loss of earning capacity assessed by the

learned Commissioner to the extent of 38% is on higher side and

it is based on no evidence, and therefore, it is liable to be set

aside. He, therefore, submits that appeal is entitled to be

allowed.

8. I have given my anxious consideration to the

submissions made and I have perused the records.

9. Claimant had asserted in the claim petition that he

was working as a cleaner cum hamali in the luggage tempo

bearing registration No.KA-25/3529 under respondent No.1.

Respondent No.1 has filed a detailed written statement admitting

the same. Claimant has also deposed to the effect that he had

been working as a cleaner cum hamali in the vehicle in question.

Ex.P1, which is the complaint based on which Crime No.69/2006

was registered in regard to the accident also shows that claimant

was working as Hamali cum cleaner in the luggage tempo in

question on 11.06.2006 at the time of the accident. On

appreciation of the said evidence, learned Commissioner has

recorded a finding that employer-employee relationship as

between respondent No.1 and the claimant has been established

and under such circumstances, it cannot be said that the finding

of the learned Commissioner is perverse. Accordingly, the

contention of the learned counsel for the appellant on this aspect

is rejected.

10. Ex.P8, is the temporary certificate of registration

issued under Rule 36(2) of the Motor Vehicle Rules and in Form

No.KMV-19 by the Regional Transport Officer, Dharwad. It is

issued in favour of Respondent No.1-Anil Kumar and in respect

of the luggage tempo in question. Ex.P8 clearly shows that the

said temporary certificate of registration was valid until

31.05.2006. The claimant has not produced any further proof to

show that after 31.05.2006 the registration certificate pertaining

to the vehicle in question was renewed and it was holding force

as on the date of the accident on 11.06.2006. Therefore, as

rightly contended by the learned counsel for the appellant there

was no registration certificate in existence as on the date of the

accident, and therefore, learned counsel for the appellant-

insurance company is right in his contention that there is

violation of the material terms of the policy of insurance and

therefore, the respondent No.1-Anilkumar, who is owner of the

vehicle in question is liable to pay the compensation. However,

as per the principle of 'pay and recover', in the first instance the

appellant insurance company shall pay the compensation

amount with interest and recover the same from the owner of

the vehicle in question in the same proceedings.

11. Learned counsel has also contended that as per the

wound certificate, Ex.P2, claimant had suffered fracture of the

distal end of second and third metatarsal and also fracture of the

greater toe of his left foot. PW2, in his evidence, has spoken

about the deformity. According to PW2, there was a healed scar

over the dorsum of the foot measuring six inches in length.

There is deformity over the great toe. He has also stated that

second and third metatarsal bone was thickened and malunited.

The movements at the inter phalangeal joint of the foot is

restricted to moderate decree. According to PW2, there was 40%

total permanent physical disability and loss of physical function

with respect to the left lower limb. After appreciating the same,

learned Commissioner has recorded a finding that claimant had

suffered loss of earning capacity to the extent of 38%. Taking

into consideration the nature of the injury suffered and the

deformity noticed by the learned Commissioner, I am of the view

that learned Commissioner has assessed the loss in the earning

capacity at 38%, which appears to be little exaggerated.

Accordingly, I am of the view that it is fair, reasonable and just

to take the loss of earning capacity at 30%. Accordingly, the

compensation that the claimant is entitled to receive is required

to be recalculated as follows:

Rs.3,500 x 60% x 184.17 x 30% = 1,16,027/- as against Rs.1,46,968/- awarded by the learned Commissioner.

12. It is noticed that the learned Commissioner has

committed a serious error in granting of interest on the award

amount w.e.f. 10.10.2010 i.e. from 30 days from the date of the

award and as per the statute itself the claimant is entitled to

grant of interest on the compensation amount w.e.f. 30 days

from the date of the accident. Hence, the following:

ORDER

The above appeal is allowed in part.

Claimant is entitled to a compensation of Rs.1,16,027/- as against Rs.1,46,968/- awarded by the learned Commissioner.

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

Since there is material violation of the terms of the policy, the principle of 'pay and recover' is applicable and the appellant-insurance company, in the first instance, shall pay the compensation amount with interest as directed in this order and thereafter recover the same from respondent No.1- Anilkumar (owner of the vehicle in question) in the same proceedings.

The amount in deposit, if any, before this Court shall be transmitted to the jurisdictional Court of the learned Senior Civil Judge along with records forthwith.

The amount in excess shall be refunded to the appellant-insurance company.

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

Sd/-

JUDGE

yan