Karnataka High Court
The Divisional Manager vs Khaleel Ahmed S/O Rajabali Sab on 25 June, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25th DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.23457 OF 2012 (WC
C/W
MFA NO.23459 OF 2012 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE COMPANY LTD.
BELLARY, REP. BY ITS ASSISTANT MANAGER,
T.P. HUB II FLOOR, SRINATH COMPLEX,
NEW COTTON MARKET, HUBLI-580029.
...COMMON APPELLANT
(BY SRI.G.N. RAICHUR, ADVOCATE)
IN MFA NO.23457/2012
AND:
1. SRI. CHIRANJEEVI S/O NATARAJ
AGE:MAJOR, OCC:EX-CLEANER,
R/O 5TH CROSS, NEAR YELLAMMA TEMPLE,
BELLARY, DIST:BELLARY.
2. M. ABDUL RAHOOF S/O M. SHARMAS SAB
AGE:MAJOR, OCC:OWNER OF LORRY NO.
KA-34/1566, 7TH WARD, NEAR T.G. OIL MILL,
BALLARAPPA COLONY, BELLARY, DIST:BELLARY.
...RESPONDENTS
(R1 & R2-HELD SUFFICIENT)
2
IN MFA NO.23459/2012
AND:
1. SRI.KHALEEL AHMED S/O RAJABALI SAB
AGE:MAJOR, EX-DRIVER,
R/O C.B. BELLARY, DIST:BELLARY.
2. M. ABDUL RAHOOF S/O M SHARMAS SAB
AGE:MAJOR, OCC:OWNER OF LORRY NO.
KA-34/1566, 7TH WARD, NEAR T.G. OIL MILL,
BALARAPPA COLONY, BELLARY, DIST:BELLARY.
...RESPONDENTS
(R1 & R2- HELD SUFFICIENT)
MFA NO.23457/2012 IS FILED UNDER SECTION 30(1) OF THE
WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE
RECORDS IN WC/CR NO.303/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR COMPENSATION SUB-DIVISION-II, BELLARY
PERUSE THE SAME AND SET-ASIDE THE JUDGMENT DATED 17.04.2012
BY ALLOWING THE INSTANT MISCELLANEOUS FIRST APPEAL WITH
COSTS AND TO PASS SUCH OTHER ORDERS AS MAY BE DEEMED FIT IN
THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND
EQUITY.
MFA NO.23459/2012 IS FILED UNDER SECTION 30(1) OF THE
WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE
RECORDS IN WC/CR NO.304/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR COMPENSATION SUB-DIVISION-II, BELLARY
PERUSE THE SAME AND SET-ASIDE THE JUDGMENT DATED 17.04.2012
BY ALLOWING THE INSTANT MISCELLANEOUS FIRST APPEAL WITH
COSTS AND TO PASS SUCH OTHER ORDERS AS MAY BE DEEMED FIT IN
THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND
EQUITY.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
These appeals are at the instance of the insurer
challenging the award dated 17.4.2012 passed in WC/CR
Nos.303 and 304 of 2006 by the learned Labour Officer
and Commissioner for Workmen's Compensation,
Sub-Division-2, Bellary (for short, 'Commissioner').
2. Brief facts are that the claimant-Chiranjeevi was
working as a Cleaner and claimant-Khaleel Ahmed was
working as a driver in lorry bearing registration No.
KA-34/1566 belonging to respondent No.1-M.Abdul Rahoof
before the learned Commissioner and insured with the
appellant herein. It is stated that on 1.9.2005, as per the
instructions of respondent No.1-Abdul Rahoof, the
claimants loaded the lorry with iron ore and were
transporting it to Bellary and when they reached near
Boodikanive, KPTCL cross, front tyre of the lorry was
burst and on account of the same, lorry lost control and
capsized and due to the impact, both the claimants
suffered grievous injuries.
3. In the claim proceedings, respondent No.1-Abdul
Rahoof entered appearance and filed his written statement
admitting the employer-employee relationship between
himself and the claimants and he has also admitted that
the accident resulting in injuries to the claimants took
place in the course of and arising out of the employment.
He further admitted that the vehicle in question was
covered by policy of insurance issued by the
appellant/insurer. The appellant/insurer also filed a
separate written statement denying the assertions made
in the claim petitions.
4. During the enquiry, the claimants examined
themselves and also examined one qualified medical
practitioner by name Dr. Laxminarayan and Exs.P1 to P6
were marked. The appellant got marked policy of
insurance.
5. Upon consideration of the entire materials
produced and the evidence let in by both sides, the
learned Commissioner answered all the points for
consideration in favour of the claimants and against the
appellant-insurer and awarded a compensation of
Rs.46,487/- and Rs.47,294/- with interest thereon at 12%
per annum to both claimants respectively.
6. Sri. G.N. Raichur, learned counsel appearing for
the insurer has advanced several contentions. He has
contended that the learned Commissioner has committed a
serious error of law in placing reliance on Ex.P1-statement
given by the claimant-Chiranjeevi, which according to the
learned counsel should not have been relied upon at all
without examining the police officer, who recorded the
statement. He further contended that Ex.P5-Wound
Certificate is a created document and the learned
Commissioner has committed a serious error of law in
placing reliance on the same. He also contended that the
learned Commissioner has committed an error in fixing
the loss of earning capacity at 10% for both the claimants
and also placing reliance on the evidence of
Dr.Laxminarayan is wholly illegal. Therefore, he
contended that the award is passed on no evidence and it
is liable to be set-aside.
7. I have given my anxious consideration to the
submission made by the learned counsel for the appellant
and also perused the records.
8. There is no dispute about the fact that lorry in
question is owned by respondent No.1 and it is insured
with the appellant herein. Respondent No.1-Abdul Rahoof
is owner of the said lorry has appeared before the learned
Commissioner and filed his written statement clearly
admitting the fact that there was employer-employee
relationship and he further admitted that the accident
resulting in injuries to two claimants had taken place
arising out of and in the course of employment. The
learned Commissioner referred to Ex.P1 which is a
statement recorded by the Station House Officer, Outpost
Police Station, Cantonment, Bellary. The said statement
was marked during the deposition of the claimants before
the learned Commissioner. There is reference in the said
statement (Ex.P1) that the accident took place on account
of tyre bursting and further on account of the same, the
claimant suffering injuries. The fact stated therein is
corroborated by the employer who has stated the very
same fact in his written statement. The learned
Commissioner having placed his reliance on the written
statement of respondent No.1-insured as well as Ex.P1
and recording a finding of fact thereon is not liable to be
interfered with in an appeal under Section 30(1) of the
Employees' Compensation Act, 1923. Accordingly, I do
not find any substantial question of law arising for
consideration on that score.
9. The next contention of the learned counsel for the
appellant is that the evidence of Dr. Laxminarayan ought
not to be relied upon for fixing the loss of earning
capacity at 10% for both the claimants. Wound
Certificates namely Ex.P5 for claimant-Chiranjeevi and
Ex.P2 for claimant-Khaleel Ahmed were issued by medical
officer of Primary Health Centre, Torangal, which clearly
show that the claimant-Chiranjeevi had suffered fracture
of 1/3 r d of clavicle bone and fracture of head of fibula
(right). Similarly, the claimant-Khaleel Ahmed has
suffered fracture of patella bone (right). Both the
claimants had suffered fracture in their lower limb and
taking into consideration the same, the learned
Commissioner has come to a conclusion that they had
suffered loss in their earning capacity to the extent of
10%. This finding of fact recorded by the learned
Commissioner as held by the Hon'ble Supreme Court in
the case of Golla Rajanna and Others Vs. Divisional
Manager and Another reported in (2017) 1 SCC 45, is
not liable to be interfered with. It is pertinent to note
that it cannot be said that the finding recorded by the
learned Commissioner on these aspects are passed on no
evidence or perverse and therefore, no substantial
question of law arises for consideration in these appeals
and they are liable to be dismissed. Hence, the following:
ORDER
a) The above appeals are dismissed.
b) The amount in deposit before this Court,
if any, shall be transmitted to the
jurisdictional Court of learned Senior Civil
Judge forthwith along with records.
Sd/-
JUDGE
JTR
