Shri.Veerappa S/O Shekharappa ... vs The United India Insurance Co. ...
2021 Latest Caselaw 2851 Kant

                IN THE HIGH COURT OF KARNATAKA
                         DHARWAD BENCH

               DATED THIS THE 19TH DAY OF JULY 2021

                             BEFORE

             THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                     MFA NO.23590/2009 (WC)
                              C/W.
                    MFA CROB. NO.100050/2018

IN MFA NO 23590 OF 2009 :

BETWEEN

THE UNITED INIDA INSURANCE CO. LTD
BRANCH OFFICE, THONTDARYA VIDYA PEETH BUILDING
ROTARY CIRCLE GADAG, R/BY SR.DIVISIONAL
MANAGER UNITED INDIA INSURANCE CO LTD
LEA COMPLEX, DHARWAD
                                                       ...APPELLANT
(BY SRI. A G JADHAV, ADV.)

AND

1 . SHRI VEERAPPA SHEKARAPPA PURAD
AGE: 36 YEARS,OCC: DRIVER
R/O HALLIGUDI VILLAGE
TALUK:MUNDARAGI, DIST:GADAG

2 . SHRI GURUPADAPPA SHIVA BASAPPA CHANNALLI,
AGE 63 YEARS, OCC:OWNER OF TT UNIT KA-26/1999
AND KA-26/5681, R/O HALLIGUDI VILLAGE TALUK
MUNDARAGI DIST-GADAG
                                                  ...RESPONDENTS
(BY SRI.K L PATIL, ADV. FOR R1;
      SRI. VEERESH H.M. ADV., FOR R2)

     THE MFA FILED UNDER SESC.30(1) OF THE WORKMEN
COMPENSATION ACT 1923, AGAINST THE JUDGMENT AND ORDER
                                    2


DATED:30-06-2009 PASSED IN KANAPA/NF.NO.44/2006 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, GADAG DISTRICT, GADAG, AWARDING COMPENSATION
OF RS.1,74,703/- WITH THE INTEREST AT THE RATE OF 12% P.A. FROM
THE DATE OF PETITION TILL ITS DEPOSIT.

IN MFA.CROB NO 100050 OF 2018 :

BETWEEN

SHRI.VEERAPPA S/O SHEKHARAPPA PURAD
AGE: 45 YEARS,OCC: DRIVER
R/O: HALLIGUDI VILLAGE,TQ: MUNDARGI
DIST: GADAG-582115
                                              ...CROSS OBJECTOR
(BY SRI.K L PATIL, ADV.)

AND

1 . THE UNITED INDIA INSURANCE CO. LTD
BRANCH OFFICE,THONTADARYA VIDYA PEETH
BUILDING, ROTARY CIRCLE
GADAG, REP BY SR DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO LTD
LEA COMPLEX, DHARWAD-580001

2 . GURUPADAPPA S/O SHIVABASAPPA CHANNALLI
AGE: 72 YEARS,OCC: OWNER TT UNIT KA-26/1999
AND KA-26/5681,R/O: HALLIGUDI VILLAGE
TQ: MUNDARAGI,DIST: GADAG-582115
                                                 ...RESPONDENTS
(BY SRI.A G JADHAV,ADV., FOR R1;
NOTICE TO R2 DISPENSED WITH)

      THIS MFA.CROB IN MFA NO.23590/2009 FILED UNDER ORDER 41
RULE 22 OF CPC., 1908, AGAINST THE JUDGMENT AND AWARD DATED
30.06.2009 PASSED IN KANAPA/NF.NO.44/2006 ON THE FILE OF THE
LABOUR     OFFICER   AND    COMMISSIONER     FOR   WORKMEN'S
COMPENSATION, GADAG, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

     APPEAL AND CROSS OBJECTION ARE COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                         3



                                  JUDGMENT

This appeal is at the instance of the insurer and the

claimant has also filed cross objection calling in question

legality and validity of the award dated 30.06.2009

passed in KANAPA/NF.NO.44/2006 by the learned Labour

Officer and Commissioner for Workmen's Compensation,

Gadag (for short, 'Commissioner').

2. Brief facts are that the claimant was working as

a driver in a tractor and trailer bearing registration

No.K.A.26/9099 & 5681 owned by respondent

No.1/Gurupadappa Shivabasappa Channalli and insured

with United India Insurance Company (appellant in

MFA.No.23590/2009). On 23.03.2006 as per the

instruction of respondent No.1, the claimant was driving

the tractor and trailer and at that time the accident took

place resulting in grievous injuries to the claimant. In

regard to the accident, a case in Crime No.48/2006 was

registered in Gadag Rural police station.

3. In the proceedings before the learned

Commissioner, respondent No.1/Insured filed written

statement admitting employer and employee relationship

and also the fact that the accident had taken place in the

course of and arising out of the employment and

respondent No.2/Insurer contested the proceedings by

filing written statement denying the material averments

made in the claim petition.

4. During the enquiry, claimant examined himself

as PW.1 and got marked Exs.P1 to P12. Respondent No.1

examined himself as R.W.1 and respondent No.2 examined

one of its officials as R.W.2. Policy of insurance was

marked as EX.R.2(1).

5. Upon consideration of the materials produced

and the evidence let in, learned Commissioner answered

all the points for consideration in favour of the claimant

and against the appellant herein and he awarded a

compensation of Rs.1,74,703/- with interest thereon at

12% p.a.

6. The only substantial question of law raised by

the learned counsel for the insurance company is that

even though the qualified medical practitioner/PW.2 has

opined that whole body disability is to the extent of 11%,

the learned Commissioner has assessed the loss of

earning capacity at 35% and therefore, the same is based

on no evidence and it is perverse and the same is liable to

be set aside. He submits that on the basis of the said

assessment, the learned Commissioner has awarded

excessive compensation and the same is liable to be

rectified.

7. The learned counsel for the claimant submits

that compensation awarded required to be enhanced. He

further submits that medical expert has assessed the

disability of left arm of the claimant at 42% and since

claimant is driver of tractor and trailer, effectively he will

not be able to perform his duty as driver and therefore

loss of earning capacity should have been taken at 42%

and accordingly, the compensation is liable to be

enhanced.

8. I have given my anxious consideration to the

submissions made on both sides and I have perused

records.

9. The case of the claimant as projected in the

claim petition is that on 23.03.2006 while he was driving

the tractor and trailer in question, he met with an

accident resulting in fracture of his left fore arm. He was

initially treated at District Hospital, Gadag and thereafter

he was admitted to KIMS Hospital, Hubballi on 24.03.2006

i.e. a day after the accident. He was in-patient in the said

hospital till 16.04.2006. Discharge card issued by KIMS

Hospital, Hubballi shows that treatment given was ORIF

with plating 1.k wire friction on 27/03/06. It is also stated

that as per X-ray, there was fracture of radius & ulna

bone left upper limb. There is also observation that limb

was immobilized in card board, after removal swelling was

present, deformity was present, abnormal movement was

present, crepitus present at distal 3 r d fore arm over radial

side, different and abnormal present crepital at distal 3

arm over radius side. Movements at wrist painful and

restricted.

10. PW.2 who is qualified medical practitioner has

examined the claimant as well as x-ray and observed that

mal united fracture of left radius and ulna with traumatic

arthritis of left elbow and wrist joints. He has also

observed that deformity is permanent even after

physiotherapy treatment. He was of the opinion that

claimant had suffered 42% of permanent disability on the

left fore arm. Assessment was made on the basis of the

pain, deformity of left elbow and wrist i.e. functionality

and working capability of the left upper limb as per the

Kessler's method. During his cross examination, PW.2 has

stated that disability was to the extent of 40% for the

upper limb. Insofar as the whole body disability is

concerned, it is to the extent of 11%.

11. The learned Commissioner in the impugned

order has discussed this aspect of the evidence available

on record and he has observed that there was loss of

earning capacity to the extent of 35%. He has taken into

consideration the fact that the claimant was working as

driver. Claimant himself during his evidence has stated

that he was not in a position to work as driver. In the

cross examination of PW.1 by the learned counsel for the

insurance company, I do not find anything elicited which

would show that claimant had become normal so as to

carry out his duty as driver since the left fore arm is

affected as observed by the qualified medical

practitioner/PW.2. After looking into discharge card issued

by KIMS Hospital, Hubballi which was immediately after

the accident and observation of PW.2 himself after his

examination of the claimant, the learned Commissioner

has recorded the finding that loss of earning capacity is to

the extent of 35%. Under the circumstances, it cannot be

held that the finding of the learned Commissioner is not

supported by evidence or it is perverse. Accordingly, I

reject the contention of the learned counsel for the

appellant/insurance company.

12. The learned counsel for the claimant submits

that compensation is required to be enhanced and the loss

of earning capacity should be taken at 42%. However, I

do not find any ground to interfere with the finding of the

learned Commissioner that the loss of earning capacity of

the claimant is at 35%. Accordingly, I proceed to pass the

following:

ORDER

i) The above appeal and the cross objection are dismissed.

ii) The claimant is entitled to receive interest at the rate of 12% P.A. with effect from 30 days from the date of the accident till the date of deposit.

iii) The amount in deposit, if any shall be transmitted to the concerned jurisdictional tribunal along with records.

Sd/-

JUDGE VB/-