Balawwa Basappa Hanabar vs Kenchappa Yallappa Basappanavar
2021 Latest Caselaw 2347 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

             DATED THIS THE 23RD DAY OF JUNE 2021

                            BEFORE

            THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


       M.F.A.NO. 21170/2013 C/W M.F.A.NO.22116/2012 (WC)

M.F.A.NO.21170/2013
BETWEEN:
SMT. BALAWWA BASAPPA HANABAR,
AGE: 30 YEARS, OCC: COOLIE,
R/O. JALIKATTI, TALUK: SAUNDATTI,
DIST: BELGAUM.
                                                    ...APPELLANT
(BY SRI. H. M. DHARIGOND, ADVOCATE)

AND:
1.     SHRI. KENCHAPPA YALLAPPA BANAPPANAVAR,
       AGE: MAJOR, OCC: AGRICULTURE,
       R/O. JALIKATTI, TALUK: SAUNDATTI,
       DIST: BELGAUM.

2.     THE DIVISIONAL MANAGER,
       NATIONAL INSURANCE COMPANY LTD.,
       RAMADEV GALLI, BELGAUM,
       DIST: BELGAUM.
                                                ...RESPONDENTS
(BY SRI. SURESH S GUNDI, ADV., FOR R2;
R1- NOTICE SERVED)

      THIS APPEAL IS FILED UNDER SECTION 30 OF THE WORKMEN'S
COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED
04.02.2012 PASSED IN W.C.NO.49/2010 ON THE FILE OF THE
LABOUR    OFFICER    AND    COMMISSIONER    FOR    WORKMEN'S
COMPENSATION, SUB-DIVISION II, BELGAUM, PARTLY ALLOWING THE
                                2


CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

M.F.A.NO.22116/2012
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
RAMADEV GALLI, BELAGAVI,
NOW REPRESENTED BY
ITS ADMINISTRATIVE OFFICER,
REGIONAL OFFICE,
NATIONAL INSURANCE CO. LTD., HUBLI.
                                                   ...APPELLANT
(BY SRI. SURESH S GUNDI, ADVOCATE)

AND:
1.     SMT. BALAWWA BASAPPA HANABAR,
       AGE: 29 YEARS,
       OCC: COOLIE (AT PRESENT NIL),
       R/O. JALKATTE, TALUK: SAVADATTI,
       DIST: BELAGAVI.

2.     SHRI. KENCHAPPA YALLAPPA BANAPPANAVAR,
       AGE: MAJOR, OCC: AGRICULTURE,
       R/O. JALKATTE, TALUK: SAVADATTI,
       DIST: BELAGAVI.

                                                ...RESPONDENTS
(BY SRI. H. M. DHARIGOND, ADV., FOR R1;
R2- NOTICE SERVED)

     THIS APPEAL IS FILED UNDER SECTION 30 OF THE WORKMEN'S
COMPENSATION ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 04.02.2012 PASSED IN W.C.NO.49/2010 ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, SUB-DIVISION II, BELGAUM

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                    3


                               JUDGMENT

The insurer as well as the claimant have filed these

appeals under Section 30(1) of the Employee's Compensation

Act, 1923 (for short "the Act") being aggrieved by the award

dated 04.02.2012 in W.C.No.49/2010 passed by the learned

Labour Officer and Commissioner for Workmen's Compensation,

Sub Division - II, Belgaum (for short "the Commissioner").

2. Brief facts are that claimant-Smt. Balavva Basappa

Hanabar was working as coolie in tractor trailer bearing

registration No.KA-24/T-4575 & 4576 owned by respondent

No.1-Kenchappa Yallappa Banappanavar and insured with

National Insurance Company Limited. It is stated that on

18.09.2009, as per the instructions of respondent No.1-

Kenchappa, the claimant had worked in his field by harvesting

maize crop and thereafter she had loaded the same into the

tractor trailer and she was accompanying the same and on

account of rash and negligent driving of the tractor, it met with

an accident resulting in serious injuries to the claimant.

3. During the claim proceedings, respondent No.1-

Kenchappa had filed his written statement admitting the

employer-employee relationship between him and the claimant

as well as the accident resulting in injuries taking place in the

course of and arising out of the employment.

4. During the enquiry, claimant examined herself as

P.W.1 and she also examined a qualified medical practitioner, an

orthopedic surgeon, as a witness. Ex.P.1 to P.18 were also

marked out of which Ex.P.10 was the wound certificate, Ex.P.11

was the discharge card and Ex.P.16 was the disability certificate.

Respondent-insurance company produced the driving llicence

extract of the driver as Ex.R.1(1).

5. Upon consideration of the materials produced before

him, learned Commissioner recorded a finding that both

employer-employee relationship as well as the accident resulting

in injuries taking place in the course and arising out of the

employment have been proved. He further came to the

conclusion that the claimant was aged 27 years at the time of

the accident and she was receiving monthly wages of Rs.3,200/-

and further that she had suffered loss in earning capacity to the

extent of 60% on account of the employment related injuries. By

applying appropriate relevant factor, he awarded compensation

of Rs.2,46,032/- with interest thereon at 12% per annum.

6. Learned counsel for the appellant-insurer submitted

that employer-employee relationship has not been established in

this case and he also submitted that the qualified medical

practitioner has not assessed the loss in the earning capacity

and therefore, substantial question of law arises for

consideration in these appeals and accordingly the award is

liable to be set aside.

7. Learned counsel for the claimant in support of his

appeal submitted that learned Commissioner has adverted his

attention to the materials produced before him which clearly

show that claimant was working under respondent No.1-insured,

both in his field as well as in his tractor, insured with the

insurance company and the injuries had taken place in an

accident, which took place in the course of and arising out of the

employment. He also submitted that the learned Commissioner

has erred in fixing the monthly wages at only Rs.3,200/-. He

also submitted that the loss of earning capacity fixed at 60% by

the learned Commissioner is wholly justified in view of the

serious injuries of fracture of femur bones of both lower limbs.

He also contended that the learned Commissioner has committed

a serious error of law in awarding interest only from 30 days of

the award. He submitted that the compensation awarded is

insufficient and the appeal filed by him is liable to be allowed by

enhancing the compensation.

8. I have given my anxious consideration to the

submissions made on either side and I have perused the

records.

9. Insofar as the question of employer-employee

relationship is concerned, respondent No.1-insured has filed

written statement before the learned Commissioner clearly

admitting the said relationship and also the fact that accident

resulting in injuries to the claimant had taken place in the course

of and arising out of the employment. The claimant has also

given evidence in support of the same which has remained

unshaken.

10. Learned Commissioner has adverted to the same,

and therefore, it cannot be stated that finding recorded by the

learned Commissioner in this behalf is based on no evidence or

that it is perverse. Accordingly, I do not find any substantial

question of law arising for consideration on this aspect.

11. In regard to the submission of the learned counsel

for the insurance company that loss of earning capacity arrived

at by the learned Commissioner at 60% is not supported by any

evidence, especially, by the qualified medical examiner is

concerned, the wound certificate Ex.P.10 and the disability

certificate clearly show that the claimant had suffered fractures

of subtrocanteric right femur, and fracture shaft left femur.

These fracture injuries are on the most important limbs of the

body and the report of the qualified medical examiner shows

restricted movement of lower limbs. Since indisputably the

claimant is a manual labour working as a coolie, it cannot be said

that assessment made at 60% loss in the earning capacity is

based on no evidence. I therefore, do not find merit in the

submission of the learned counsel for the appellant-insurance

company in this behalf. On the other hand, I find that the loss in

earning capacity assessed at 60% by the learned Commissioner

is reasonable and supported by the evidence. Therefore, I am

inclined to hold that no substantial question of law arises for

consideration on this aspect.

12. Learned Commissioner has fixed the monthly wages

of the claimant at Rs.3,200/-. It has to be appreciated that the

accident had taken place on 18.09.2009 and at that time, the

maximum cap on the notional income of a workman was

Rs.4,000/-. Soon within a year, namely, w.e.f. 31.05.2010,

maximum cap on the notional wages was enhanced to

Rs.8,000/-. In that view of the matter, I hold that it is

reasonable to fix the monthly income of the claimant at

Rs.3,500/-. Therefore, the compensation is required to be

recalculated as follows:

Rs.3,500 x 60% x 213.57 x 60% =Rs.2,69,098/- as against

Rs.2,46,032/- awarded by the learned Commissioner.

13. It is well settled that on the amount of compensation

awarded, interest is liable to be paid at the rate of 12% w.e.f. 30

days from the date of the accident and in this case also the

claimant is entitled to the said relief. Hence, the following:

ORDER

The appeal in MFA No.22116/2012 filed by the insurer is dismissed.

The appeal in MFA No. 21170/2013 filed by the claimant is allowed in part.

Accordingly, the claimant is entitled to the compensation of Rs.2,69,098/- with interest at the rate of 12% per annum w.e.f. 30 days from the date of the accident till the date of deposit.

The amount in deposit, if any, before the registry, shall be transmitted to the learned jurisdictional Senior Civil Judge Court, forthwith.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE yan