Karnataka High Court
The Divisional Manager New India ... vs Jalagu S/O.Pundalik Kamble Age ... on 22 July, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.23116 OF 2010 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.,
BELGAUM, THROUGH ITS REGIONAL
OFFICE, NO.2B, UNITY BUILDING,
ANNEXED P. KALINGA RAO ROAD,
BANGALORE-560027
BY DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI.S.S. KOLIWAD AND SRI. V.R. DATAR, ADVOCATES)
AND:
1. SRI. JALAGU S/O PUNDALIK KAMBALE
AGE:MAJOR, OCC:CLEANER,
R/O BHOJA, CHIKKODI-591263,
BEGLAUM DISTRICT.
2. SRI. RAVASAHEB APPA GURAVA
AGE:MAJOR, OCC:BUSINESS,
R/O PALTA, BUDDARAGADA,
KOLLAPUR DISTRICT.
...RESPONDENTS
(BY SRI.HARISH S MAIGUR, ADV. FOR R1) (R2-SERVED)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS IN
WCA/SR NO.166 OF 2007 ON THE FILE FO THE COMMISSIONER FOR
WORKMEN'S COMPENSATION SUB-DIV-1, BELGAUM AND ON PERUSLA OF
2
THE SAME, SET-ASIDE THE JUDGMENT AND AWARD DATED 30.05.2009
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is at the instance of the insurer calling in
question the award dated 30.05.2009 passed in WCA/SR
No.166/2007 by the learned Labour Officer and
Commissioner for Workmen's Compensation, Sub-division-
I, Belgaum (for short, 'Commissioner').
2. Brief facts are that the claimant Jalagu Pundalik
Kambale was working as cleaner in Truck bearing
registration No.MH-04/AG-7792 owned by respondent
No.1-Ravasaheb Appa Gurava and insured with the
appellant. On 9.6.2006, as per the instructions of
respondent No.1 for the purpose of replacing a punctured
tire, while the claimant was in the process of lowering
stepney wheel from the top cabin of the lorry, he lost
balance and fell down from top of the lorry resulting in
vertebral injuries to him.
3. Respondent No.1 filed written statement before
the learned Commissioner admitting the employer-
employee relationship and also employment related
accident. The appellant filed a detailed and separate
written statement denying the material averments made
in the claim petition.
4. During the enquiry, the claimant examined himself
as PW1 and he also examined a qualified medical
practitioner as PW2 and Exs.P1 to P8 were marked. The
appellant got marked policy of insurance as Ex.R2(1).
5. The learned Commissioner after examination of
the materials produced and the evidence let in answered
the points arising for consideration in favour of the
claimant and against the appellant and awarded a
compensation of Rs.2,12,825/- with interest thereon at
12% per annum.
6. Learned counsel appearing for the insurer
vehemently contended that even though the qualified
medical practitioner had assessed permanent physical
disability of the claimant amounting to 35% to the whole
body, the learned Commissioner has committed a serious
error of law in assessing the loss of earning capacity at
60%, which is not supported by evidence and therefore,
the said finding is perverse. Therefore, he submitted that
consequently, the learned Commissioner has awarded
excess compensation and same is liable to be reduced.
7. The learned counsel appearing for the claimant,
per contra, contended that the learned Commissioner on
appreciation of the evidence has assessed loss of earning
capacity at 60% and same should not be interfered with.
He further submitted that the compensation awarded is
liable to be granted interest at 12% per annum w.e.f.
thirty days from the date of accident till date of deposit
and the learned Commissioner has committed an error of
law while awarding the interest.
8. I have given my anxious consideration to the
submissions made on either side and also perused the
records.
9. The records clearly show that the claimant
immediately after the accident had given a complaint
before the police which is at Ex.P1 and it shows that the
accident had happened while the claimant was in the
process of lowering stepney tyre from the top of the lorry
to the ground for the purpose of replacing a punctured
wheel of the truck. He has produced MLC issued by
Kapileshwar Orthopedic, Trauma & Surgical Care Centre,
Belgaum, which is at Ex.P2 and it shows that compression
fracture of L1 vertebra and he was admitted to the said
hospital on 9.6.2006 and discharged on 19.6.2006. On
10.6.2006, MRI of Lumbar Spine Screening was done and
it discloses the following injuries:
Impression:
i) Communited we dge compression fracture of
L1 Verte bra body with M inimal
ii) Retro- listhesis of L1, causing Gross
extradural compression of Thecal SAC and
the Cauda Equina.
iii) Mild D iffuse D isc Bulges at L4- L5 causing
inde ntatio n o n the subarachno id space.
10. X-ray report dated 2.8.2007 is at Ex.P5 and it
shows that there was old wedge compression fracture L1
vertebra. The doctor who had examined the claimant has
given disability certificate as per Ex.P6. After a detailed
evaluation of various disabilities, PW2-doctor opined that
the claimant has suffered permanent physical disability to
the extent of 35% to the whole body. The grievance of
the learned counsel for the appellant is that when PW2
after assessment of the disability suffered by the claimant
has assessed at 35% of the whole body, the learned
Commissioner could not have taken the loss of earning
capacity of the claimant at 60%. The medical documents
pertaining to the claimant clearly show that there was
compression fracture of L1 vertebra and there were
several other related complications also. The claimant
was working as a cleaner when the accident took place
and he has to work either as cleaner or coolie in order to
earn his livelihood. The disability caused is to the
vertebra and therefore, his prospects of getting
employment as labourer is significantly diminished
because of injuries to the vertebra. Taking into
consideration the above aspects, the learned
Commissioner has fixed the loss of earning capacity of the
claimant at 60% and therefore, his finding on the same
cannot be said to be perverse or based on no evidence.
Accordingly, I do not find any merit in the appeal and
therefore, appeal is liable to be dismissed.
11. However, it is noticed that even though as per
the statute, the compensation awarded is required to be
granted interest at 12% per annum w.e.f. thirty days from
the date of accident till the date of deposit, but the
learned Commissioner has not done so. Therefore, it is
necessary to observe that the compensation awarded shall
carry interest at 12% per annum w.e.f. thirty days from
the date of accident till the date of deposit. Hence, the
following:
ORDER
a) The above appeal is dismissed.
b) While maintaining the quantum of
compensation, the claimant is entitled to
receive interest on the award amount at 12%
per annum w.e.f. thirty days from the date of
accident till date of deposit.
c) The amount in deposit, if any, before this
Court shall be transmitted to the jurisdictional
Court of learned Senior Civil Judge forthwith
along with records.
Sd/-
JUDGE
JTR
