Karnataka High Court

Suhail @ Peer Pasha vs Allbakash on 15 June, 2021

Author: H.P.Sandesh

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF JUNE, 2021

                             BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.4124/2010 (WC)
                            C/W.
                  M.F.A.NO.5005/2010 (WC)

IN MFA NO.4124/2010 (WC):

BETWEEN:

SUHAIL @ PEER PASHA
S/O CHOTASAB @ MAHBOOB SHARIF
AGED ABOUT 29 YEARS
OCC-NIL, (DRIVER-AUTO)
RES. 6TH CROSS, MYSORE ROAD,
BYATARAYANAPURA
BENGALURU.
                                            ... APPELLANT

            (BY MS. M.C.UMADEVAMMA, ADVOCATE)
AND:

1.     ALLABAKASH
       S/O SHOORULLAKHAN
       AGE:MAJOR,
       NO-1283, 6TH CROSS,
       GANGONDANAHALLI
       BENGALURU.

2.     THE MANAGER
       NATIONAL INSURANCE CO. LTD.,
       LINGARAJU COMPLEX,
       BASAVANGUDI
                            2



       GANDIBAZAR MAIN ROAD,
       BENGALURU-560011
                                          ... RESPONDENTS

         (BY SRI A.M.VENKATESH, ADVOCATE FOR R2;
             NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT
AGAINST THE JUDGMENT DATED 08.12.2009 PASSED IN
WCA/NFC/CR-20/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB-
DIVISION-2, BENGALURU, ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND     SEEKING   ENHANCEMENT      OF
COMPENSATION.

IN MFA NO.5005/2010 (WC):

BETWEEN:

M/S. NATIONAL INSURANCE COMPANY LIMITED
BRANCH OFFICE,
LINGARAJU COMPLEX,
BASAVANAGUDI,
GANDHI BAZAAR MAIN ROAD,
BENGALURU,
NOW REP. BY ITS REGIONAL OFFICE,
NO.144, SHUBHARAM COMPLEX,
M.G. ROAD, BENGALURU-560 001.
REP. BY ITS ADMINISTRATIVE OFFICER
                                          ... APPELLANT

            (BY SRI A.M.VENKATESH, ADVOCATE)
AND:

1.     SUHAIL @ FEER PASHA
       S/O CHOTA SAAB @ MAHBOOB SHARIEF
       AGED ABOUT 25 YEARS
       R/O. 6TH CROSS, MYSORE ROAD,
       BYATARAYANAPURA
       BENGALURU.
                               3



2.    SRI ALLABAKSH
      S/O SHOORULLA KHAN
      NO-1283, 6TH CROSS,
      GANGONDANAHALLI
      BENGALURU.
                                             ... RESPONDENTS

                   (R1 AND R2 ARE SERVED)

      THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT
AGAINST THE JUDGMENT DATED 08.12.2009 PASSED IN
WCA/NFC/C.NO.20/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB-
DIVISION-2, BENGALURU, AWARDING A COMPENSATION OF
Rs.2,44,620/- WITH INTEREST @12% P.A.

     THESE MFAs' COMING ON FOR HEARING THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                  JUDGMENT

These two appeals are filed by the claimant and also the

Insurance Company challenging the judgment and award passed

by the Commissioner for Workmen's Compensation and Labour

Officer DO-2, Bannerghatta Road, Bengaluru in

No.WCA/B2/NFC/CR-20/2006 dated 08.12.2009.

2. The factual matrix of the case is that the claimant

was the driver of the auto rickshaw belonging to the first

respondent and he met with an accident on 10.07.2006 at 11.00

p.m. and sustained injuries and filed the claim petition before

the Court seeking compensation.

3. The claimant, in order substantiate his claim,

examined himself as P.W.1 and got marked the documents as

Exs.P1 to P8 and examined the Doctor as P.W.2 and got marked

the documents as Ex.P2-1 to Ex.P2-3.

4. Learned counsel for the second respondent-

Insurance Company would contend that the claimant was not

having the driving license and also he took the vehicle for hire

and he was not an employee of the first respondent. The

counsel also would vehemently contend that the Tribunal has

committed an error in taking the disability at 50% and the

Doctor, who has been examined before the Commissioner has

specifically deposed that there is disability of 50% to the

particular limb. Under the circumstances, the Insurance

Company is not liable to pay any compensation.

5. Per contra, learned counsel appearing for the

appellant in M.F.A.No.4124/2010 would vehemently contend that

the Tribunal has taken note of the evidence of P.W.2, the Doctor

and it is not in dispute that he was working as a Driver and has

suffered type-II compound fracture both bones of left leg with

ipsilateral medial malleolar fracture undisplaced fracture and the

fracture was stabilized with external factors. The Doctor has

also deposed that there was a malunion and hence, the

Commissioner has rightly taken the disability at 50%, since he

could not continue the work as driver on account of the injury

sustained by him. Hence, it does not require any interference of

this Court.

6. Having heard the arguments of respective counsel

and also on perusal of the material available before the Court,

the points that would arise for consideration of this Court are:

(i) Whether the Commissioner was justified in assessing 50% disability to a particular limb of the claimant?

(ii) Whether the Commissioner has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?

        (iii)      What order?


Point No.(i)

7. Having heard the learned counsel for both the

parties and also on perusal of the records, though the counsel

appearing for the second respondent-Insurance Company would

vehemently contend that there is an admission in the cross-

examination of P.W.1 that he took the vehicle for hire purpose

and he was not an employee of the first respondent, however,

on perusal of the entire evidence, no such admission is elicited.

No doubt, in the cross-examination, suggestions are made to

P.W.1 and the said suggestions are specifically denied.

However, counsel would vehemently contend in the documents

at Exs.P1 and P2, the owner of the vehicle has alleged that he

had given the vehicle for hire and he is not an employee and in

order to prove the said fact, though the learned counsel

appearing for the second respondent-Insurance Company relies

upon Exs.P1 and P2, the same has not been proved by

examining the witnesses. Under the circumstances, the

contention of the Insurance Company cannot be accepted.

Hence, I answer point No.(i) as 'partly affirmative'

Point No.(ii)

8. Having considered the material available on record

with regard to the nature of injury sustained by the claimant, it

is not in dispute that the Doctor, who has been examined before

the Commissioner in his evidence has deposed disability to the

particular limb at 50%, no doubt, in the affidavit has mentioned

with regard to the malunion of the fracture. Having considered

the said fact into consideration, no material is placed before the

Court to come to a conclusion that he has suffered the disability

to an extent of 50% to the particular limb. Considering the

injuries sustained by the claimant i.e., tibia and fibula and also

malunion, the disability assessed by the Commissioner to an

extent of 50% is erroneous. As already pointed out, there was a

malunion of the fracture and the Court can take the disability at

25% as against 50%. Hence, the Commissioner has committed

an error in taking the disability at 50% and it requires

interference of this Court.

9. There is no dispute with regard to the income taken

by the Commissioner. However, the compensation has to be

reassessed taking into consideration the disability at 25% and

after having considered the material on record, his income and

relevant factors, the compensation comes to Rs.1,22,310/-

(4,000x60/100=2,400x203.85x25/100). Hence, the impugned

judgment and award passed by the Commissioner requires to be

interfered with. Hence, I answer point No.(ii) as 'negative'.

Point No.(iii)

10. In view of the discussions made above, I proceed to

pass the following:

ORDER

(i) The appeal filed by the claimant in M.F.A.No.4124/2010 is dismissed. The appeal filed by the Insurance Company in M.F.A.No.5005/2020 is partly allowed.

(ii) The judgment and award passed by the Commissioner for Workmen's Compensation and Labour Officer DO-2, Bannerghatta Road, Bengaluru in No.WCA/B2/NFC/CR-20/2006 dated 08.12.2009 is modified granting compensation of Rs.1,22,310/- as

against Rs.2,44,620/- with interest at 12% per annum.