The Divisional Manager vs Madhu
2021 Latest Caselaw 2384 Kant

                 IN THE HIGH COURT OF KARNATAKA
                         DHARWAD BENCH

               DATED THIS THE 24TH DAY OF JUNE 2021

                             BEFORE

             THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                    MFA NO.21809 OF 2013 (WC)

BETWEEN:

THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
ENKAY COMPLEX, KESHWAPUR, HUBLI.
                                                      ...APPELLANT

(BY SRI.RAJASHEKHAR S ARANI, ADVOCATE)

AND:

1.     MADHU S/O PARASAPPA NAIK
       AGE:33 YEARS, OCC:DRIVER
       R/O SURLESHWAR, TQ:HANGAL, DIST:HAVERI.

2.     SRI. K. PRASAD
       AGE:MAJOR, OCC:BUSINESS,
       R/O NIDAGUNDI CHWAL, NEHRU NAGAR,
       BYADAGI.
                                                    ...RESPONDENTS
(BY SRI.HARISH S MAIGUR, ADV. FOR R1) (R2-SERVED)

     THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE EMPLOYEES'
COMPENSATION ACT, 1923 PRAYING TO CALL FOR RECORDS AND SET-
ASIDE THE JUDGMENT AND AWARD DATED 30.08.2012 PASSED BY THE
COMMISSIONER FOR WORKMEN'S COMPENSATION, HAVERI IN WCA/NF
NO.4/2011.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                          2


                                     JUDGMENT

This appeal is at the instance of the insurer filed

under Section 30(1) of the Employees' Compensation Act,

1923 (for short, 'Act') calling in question the legality of

the award dated 30.08.2012 passed in WCA/NF No.4/2011

by the learned Labour Officer and

Commissioner for Workmen's Compensation, Haveri

(for short, 'Commissioner').

2. Brief facts are that claimant-Madhu Parasappa

Naik was working as a Driver in Tata Ace goods vehicle

bearing registration No.KA-27-A/168. It is stated that on

21.04.2010, while he was driving the said goods vehicle,

in an accident it capsized and an account of the impact

injuries, the claimant suffered fracture of his left radius

and ulna and also he suffered certain other injuries as

well.

3. In the claim proceedings, respondent No.1-K.

Prasad, who is the owner of the vehicle in question

appeared and filed his written statement admitting the

employer and employee relationship and also that his

vehicle was covered by proper policy of insurance. He

also admitted that the claimant was having valid and

effective driving license. The appellant/insurance company

filed written statement and contested the proceedings.

4. During the enquiry, the claimant examined himself

as PW1 and also examined a qualified medical practitioner

Dr.G.Shivappa as PW2 and Exs.P1 to P9 were marked.

The appellant-insurance company examined one witness

and also exhibited policy of insurance.

5. Upon consideration of the entire materials

produced before him, the learned Commissioner answered

all the points arising for consideration in favour of the

claimant and as against the insurance company and

awarded a compensation of Rs.1,03,798/- with interest

thereon at 12% per annum.

6. Sri. Rajashekhar S Arani, learned counsel

appearing for the insurance company contended before me

that the accident resulting in injuries had taken place on

account of negligence of the claimant himself and in view

of the provisions of Section 3(1)(b)(ii) of the Act, the

claimant is not entitled to receive any compensation at

all. Therefore, he submitted that substantial question of

law arises for consideration and this appeal is liable to be

allowed.

7. Sri. Harish S Maigur, learned counsel appearing

for the respondent/claimant, on the other hand,

contended before me that the accident resulting in

injuries had taken place in the course of and arising out of

the employment and the claimant had not done anything

so as to incur disability under Section 3(1)(b)(ii) of the

Act. He, therefore, submitted that no substantial question

of law arises for consideration and the appeal is liable to

be dismissed.

8. I have given my anxious consideration to the

submissions made on either side and also I have perused

the case papers.

9. The case papers clearly show that while the

claimant was driving Tata Ace goods vehicle bearing

registration No.KA-27-A/168, the accident took place and

on account of which, the goods vehicle fell into a ditch

and the claimant suffered injuries. In the circumstances,

there is nothing to show that at the time of the accident,

the claimant was either under the influence of alcohol or

that he had willfully disobeyed the instructions of owner

of the vehicle in question or he had disregarded any of the

safety precautionary measures, which had enhanced the

risk of suffering injuries. There is a world of difference

between an act of rash and negligence and anact which

results in injuries due to willful disobedience of the

instructions or willful disregard to any safety measure.

Former situation does not incur any disqualification from

receiving compensation under the Act, while the latter will

certainly incur disability from getting compensation under

this Act. In that view of the matter, I do not find any

substantial question of law arising for consideration in this

appeal, as the case itself is to the effect that on account

of rash and negligent driving of the claimant, the accident

had resulted in causing injuries to claimant. Accordingly,

the appeal is liable to be dismissed. Hence, the following:

ORDER

a) The above appeal is dismissed.

b) The amount in deposit before this Court

shall be transmitted to the jurisdictional

Court of learned Senior Civil Judge

forthwith.

Sd/-

JUDGE

JTR