Karnataka High Court
The Divisional Manager vs Shri Shivaji Krishna Badak on 20 July, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20th DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.21678 OF 2010 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE COMPANY LTD.
BELGAUM DIVISION, THROUGH ITS HUBLI
REGIONAL OFFICE, REP. BY CHIEF REGIONAL MANAGER,
SUMANGALA COMPLEX, HUBLI.
...APPELLANT
(BY SRI.M.K. SOUDAGAR, ADVOCATE)
AND:
1. SHRI. SHIVAJI KRISHNA BADAK
AGE:33 YEARS, OCC:DRIVER, (NOW NIL)
R/O KACHERI ROAD, BELGAUM.
2. SHRI. NAMADEV NARAYAN CHALEKAR
AGE:MAJOR, OCC:BUSINESS,
R/O AT/PO:HARICHANDRI,
TQ:BHOR, DIST:PUNE (MAHARASHTRA)
...RESPONDENTS
(BY SRI.RAJENDRA PATIL FOR SRI SRINAND A PACHHAPURE, ADVS. FOR
R1) (R2-NOTICE DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 30(1)(a) OF THE
WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE
RECORDS IN CASE WC/SR NO.40/2008 ON THE FILE OF THE
COMMISSIONER FOR WORKMEN'S COMPENSATION, DIVISION-I,
BELGAUM AND SET-ASIDE THE JUDGMENT AND ORDER DAETD
26.11.2009 BY ALLOWING THIS APPEAL WITH COSTS AND GRANT SUCH
OTER AND/OR FURTHER RELIEFS, AS THIS HON'BLE COURT DEEMS FIT
2
TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal at the instance of insurer calling in
question the legality and validity of the judgment and
award dated 26.11.2009 in WC.SR No.40/2008 passed by
the Labour Officer and Workmen's Compensation
Commissioner, Belgaum Sub Division-I, Belgaum (for
short 'Commissioner').
2. Only substantial question of law that has been
raised for consideration before this Court is as to whether
in the facts and circumstances of the case, quantum of
compensation assessed by the learned Commissioner and
the loss of earning capacity quantified by the learned
Commissioner is in accordance with law?
3. Brief facts of the case are that the claimant-
Shivaji Krishna Badak approached the learned
Commissioner with a claim petition asserting that he was
working as a driver in a goods truck bearing registration
No.MH-12/AU-8934 owned by respondent No.1-Namadev
Narayan Chalekar and insured with the appellant. On
23.09.2007, while he was driving the lorry as per
instruction of respondent No.1, an accident took place,
resulting in grievous injuries to him. He further asserted
that he was admitted to Krishna Hospital, Karad in the
State of Maharastra.
4. Respondent No.1 remained ex-parte before the
learned Commissioner.
5. The appellant-Insurance Company filed detailed
written statement before the learned Commissioner
contesting the proceedings.
6. During the enquiry, claimant examined himself
as PW1 and one qualified medical practitioner-
Dr.G.K.Arun as PW2. Ex.P1 to P11 were marked.
Appellant-Insurance Company did not examine any
witnesses but policy of insurance was marked as R2(1).
7. Upon appreciation of the evidence let in and
material produced, learned Commissioner held that the
employer-employee relationship was established and
claimant was earning Rs.3,500/- per month as wages and
he suffered loss of earning capacity to the extent of 60%
on account of injuries suffered in the employment related
accident and on said finding, he awarded compensation of
Rs.2,56,851/- with interest thereon at 12% per annum.
8. Learned counsel for the appellant
Sri.M.K.Soudagar contended that the loss of earning
capacity assessed by the learned Commissioner is directly
contrary to what is provided under Explanation II to
Clause 1 of Section 4 of Employee's Compensation Act,
1923. He further contended that even for a workman
whose leg has been amputated below the knee joint, as
per the schedule of the Act, the loss of earning capacity
is assessed at 50%. He, therefore, submitted that finding
of the learned Commissioner is perverse and it is liable to
be set aside.
9. Per contra, learned counsel appearing for
claimant on the other hand contended that learned
Commissioner has assessed loss of earning capacity
based on appreciation of evidence produced before him
and since said finding of fact is based on documents
produced, it is not liable to be set aside in an appeal filed
under Section 30(1) of Employee's Compensation Act,
1923. He also submitted that claimant is entitled to
interest at 12% per annum with effect from 30 days after
the accident till the date of deposit of the same.
10. I have given my anxious consideration to the
submissions made on either side and also perused the
records.
11. The evidence produced before the learned
Commissioner shows that immediately after the accident,
claimant was admitted to Krishna Hospital, Karad. Ex.P3
is the medico-legal certificate and Ex.P4 is the history
and clinical finding document issued by Krishna Institute
of Medical Science, deemed University, Krishna Hospital,
Karad. The final diagnosis recorded therein is closed right
bicondylar tibia grade six, cut injury to extensor tendon
of Ist compartment right forearm.
12. Ex.P8 is the certificate issued by the
Department of Orthopedic of the said Krishna Hospital
which again shows that the clinical diagnosis was closed
right bicondylar fracture tibia grade VI without distal
neurovascular deficit with cut injury to extensor tendon
of Ist compartment right forearm.
13. Dr.G.K.Arun, who was examined before the
learned Commissioner is an Orthopedic Surgeon and after
evaluation of the various restrictions in the movement of
the limbs, has noted that claimant had GAIT ANTALGIC,
on measurement, it was found that, the length of the
right lower limb is 36 cm and left lower limb is 37 cm
and hence, there is shortening of 1 cm in the right leg.
Further, he stated that there is a muscle wasting of the
right lower limb;the width of the right half is 30 cm and
left calf is 31 cm and hence, there is a muscle wasting of
1 cm in the right lower limb. Thereafter, he has assessed
that there was 50% permanent physical disability of the
right lower limb and 5% to the right hand.
14. Learned Commissioner having considered the
same, has come to the conclusion that claimant had
suffered loss of earning capacity to the extent of 60%.
Now the contention of the learned counsel for the
appellant that loss of earning capacity assessed by the
learned Commissioner is excessive needs to be
ascertained from the context that claimant was a driver
and on account of the residual effect left behind by the
employment related injuries suffered in the accident, he
could not go back to his earlier employment as driver nor
he can find an avocation which can be gainful to him.
From the nature of deformation noticed by the hospital,
namely, Krishna Institute of Medical Science, it is
apparent that there is shortening of right leg apart from
the restrictions imposed on account of residuary effect of
injuries will make it extremely difficult for the claimant to
find a job as a driver. Similarly, the claimant being not a
very educated person, the only other alternative means
to earning livelihood i.e. by working as a manual labour is
also diminished by his shortening of leg and other
disability.
15. In that view of the matter, I am not in a
position to accept the contention of learned counsel for
the appellant that the finding recorded by the learned
Commissioner in assessing the loss of earning capacity at
60% is excessive. Accordingly, I reject the contention
made by the learned counsel for the appellant-Insurance
Company. In that view of the matter, there is no merit in
this appeal. Further, the claimant is entitled to receive
interest on the compensation amount awarded at 12% per
annum with effect from 30 days from the date of accident
till the date of deposit. Hence, the following:
ORDER
a) The above appeal is dismissed;
b) Amount in deposit, if any, shall be
transmitted to the jurisdictional Court of
learned Senior Civil Judge forthwith along
with records
Sd/-
JUDGE
SB
