Karnataka High Court
Reliance Gen. Ins. Co. Ltd., vs Basappa S/O. Sharanappa Havalad 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.24759 OF 2012 (WC)
BETWEEN:
RELIANCE GENERAL INSURANCE CO. LTD.,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, CTS, 472-474, V A KALBURGI
SQUARE, DESAI CIRCLE, DESHPANDE NAGAR,
HUBLI.
...APPELLANT
(BY SRI.NAGARAJ C KOLLOORI, ADVOCATE)
AND:
1. SRI. BASAPPA S/O SHARANAPPA HAVALAD
AGE:28 YEARS, OCC:DRIVER,
R/O BAGEVADI, TQ:MUNDARAGI,
DIST:GADAG.
2. SRI. BASAVARAJ S/O VENKAPPA
AGE:42 YEARS, OCC:BUSINESS,
AT BELLATII, TQ:SHIRATTI,
DIST:GADAG.
...RESPONDENTS
(BY SRI.CHANDRASHEKHAR M HOSAMANI, ADV. FOR R1)
(NOTICE TO R2 IS DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS AND
TO SET-ASIDE THE JUDGMENT AND AWARD DATED 31.8.2012 PASSED
BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, SUB-DIVISION-II, HUBLI IN WCA/NF NO.36/2011.
THIS HON'BLE COURT MAY PASS ANY SUCH ORDERS AS DEEMS FIT
2
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE
COSTS OF THE ABOVE PROCEEDING IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is at the instance of the insurer calling in
question the legality and validity of the award dated
31.8.2012 passed in WCA/NF-36/2011 by the learned
Labour Officer and Commissioner for Workmen's
Compensation, Sub-division-II, Hubli (for short,
'Commissioner').
2. Brief facts are that the claimant was working as
driver in Tempo Trax bearing registration No.KA-26/M-584
owned by respondent No.1-Basavaraj Venkappa and
insured with the appellant herein. On 2.5.2010, while the
claimant was driving the said tempo trax as per
instructions of respondent No.1, it met with an accident
resulting in grievous injuries to him. In connection with
the said accident, a case in Crime No.85/2010 was
registered in Kundagol Police Station.
3. Respondent No.1 before the learned Commissioner
did not file any written statement. The appellant herein
filed a separate and detailed written statement denying
the averments made in the claim petition.
4. The claimant examined himself as PW1 and also
he examined one qualified medical practitioner by name
Dr.G. Shivappa, Orthopedic Surgeon as PW2 and Exs.P1 to
P7 were marked. The appellant-insurer did not examine
any witness.
5. Upon appreciation of the materials produced and
the evidence let in, the learned Commissioner answered
the points arising for consideration in favour of the
claimant and awarded a compensation of Rs.2,28,733/-
with interest thereon at 12% per annum.
6. Learned counsel appearing for the appellant-
insurer strenuously contended that the quantum of
compensation awarded by the learned Commissioner is on
the higher side. In support of the same, he submits that
disability suffered by the claimant is a schedule injury and
as per the Schedule attached to the Employees'
Compensation Act, 1923, amputation of right index finger
with loss of one phalanx is to the extent of 9% in loss of
earning capacity. He refers me to entry at Sl.No.29 of
Part-II of Schedule-I of the Act for the said purpose. His
further submission is that since PW2, Medical Expert has
assessed loss of earning capacity at 40%, it is based on
no evidence and perverse. Therefore, the compensation
awarded by the learned Commissioner is required to be
reduced suitably. He therefore, prays that the appeal is
required to be allowed to the said extent.
7. Learned counsel for respondent/claimant, on the
other hand, vehemently contends that the evidence has
clearly demonstrated that the claimant was working as
driver and loss of one phalanx of right index finger has
almost deprived him of capacity to drive commercial
vehicle and his employability in the labour market as
driver has been completely taken away on account of the
injury suffered by him. Learned counsel further submitted
that the learned Commissioner having taken note of the
diminished potentiality of the claimant to work as driver
has rightly assessed the loss of earning capacity to the
extent of 40% and that being a finding of fact is not liable
to be disturbed by this Court in an appeal filed under
Section 30(1) of the Employees' Compensation Act, 1923.
8. I have given my anxious consideration to the
submissions made on either side and also perused the
appeal papers.
9. In this case, the only question that has been
canvassed before me is that even though the claimant,
who is a driver, had lost one phalanx of right index finger,
the loss suffered in the earning capacity as assessed by
the learned Commissioner to the extent of 40% is on the
higher side and same should be assessed at 9%. The
evidence clearly demonstrates that the claimant was
working as driver in Tempo Trax in question owned by
respondent No.1-Basavaraj Venkappa and on account of
the accident, one phalanx of his right index finger has
been amputated. Since this loss of one phalanx of right
index finger is in the right hand, there cannot be any
dispute that his ability to drive a commercial vehicle has
been significantly affected and prospects of his being
employed as driver in commercial vehicle has been taken
away significantly. However, loss of earning capacity
assessed by the learned Commissioner at 40% may be
slightly on the higher side and I am of the view that it
required to be re-fixed at 35%. The main reason is that
the prospects of the claimant who has lost one phalanx of
right index finger getting a job of driver is reduced
considerably as prospective employer will naturally be
apprehensive as to whether it is safe to entrust a person
like the claimant with driving responsibility because of
loss of one phalanx of his right index finger. Accordingly,
taking his loss of earning capacity at 35%, the
compensation is required to be recalculated as follows:
Rs.4,500 x 60/100 x 211.79 x 35/100=
Rs.2,00,141.55 (Rounded off to Rs.2,00,142/-) as
against Rs.2,28,733/- awarded by the learned
Commissioner with interest thereon at 12% per annum
w.e.f. thirty days from the date of accident till the date of
deposit.
10. Accordingly, I proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The claimant is entitled to receive a total
compensation of Rs.2,00,142/- as against
Rs.2,28,733/- with interest thereon at
12% per annum w.e.f. thirty days from the
date of the accident till the 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.
d) Excess amount, if any, shall be refunded
to the appellant-insurer forthwith.
Sd/-
JUDGE
JTR
