Karnataka High Court
The Branch Manager, vs Shankaraiah S/O Siddaiah on 29 June, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29th DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.20718 OF 2013 (WC)
BETWEEN:
THE BRANCH MANAGER
THE INSURANCE CO. LTD.,
BELLARY DIST. NOW REP. BY
THE DEPUTY MANAGER,
REGIONAL OFFICE, NATIONAL INSURANCE
COMPANY LTD., ARIHANT PLAZA, OPP. TO SBI
ZONAL OFFCE, KESHWAPUR, HUBLI.
...APPELLANT
(BY SRI.SURESH S GUNDI, ADVOCATE)
AND:
1. SHRI.SHANKARAIAH S/O SIDDAIAH
AGE:35 YEARS, OCC:EX. DRIVER,
R/O MUNIRABAD, KOPPAL TALUK
AND DISTRICT.
2. SHRI. SARASWATI W/O T. VENKATESH
OWNER OF MAXICAB BEARING NO.
KA-35/2771, R/O OMKARAPPA
COMPOUND, SIRUGUPPA ROAD,
KURAHATTI, BELLARY.
...RESPONDENTS
(NOTICE TO R1 AND R2 HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS IN WC
2
NO.41/2010 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN'S COMPENSATION, KOPPAL DISTRICT, KOPPAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal by the insurer calling in question
the legality and validity of the award dated 12.3.2012
passed in WC No.41/2010 by the learned Labour Officer
and Commissioner for Workmen's Compensation, Koppal
District, Koppal (for short, 'Commissioner').
2. Brief facts are that the claimant-Shankaraiah was
working as a driver in Maxicab bearing registration No.KA-
35/2771 owned by respondent No.1-Smt.Saraswati and
insured with the appellant herein. It is stated that on
15.8.2008 at about 5 p.m., when the claimant was
working as a driver in the said Maxicab, on account of the
accident, it turned turtle, resulting in fracture injuries to
the claimant.
3. During the claim proceedings, respondent No.1-
Smt.Saraswati entered appearance and filed her written
statement admitting that the claimant was working as a
driver in her Maxicab bearing registration No.KA-35/2771.
She further admitted the employer-employee relationship
between herself and the claimant as well as the fact that
the accident resulting in injuries took place in the course
of and arising out of the employment. Respondent No.2,
who is appellant herein, filed separate written statement
denying the averments made in the claim petition. During
the enquiry, the claimant examined himself as PW1 and
also examined a qualified medical practitioner by name
Dr. K. Laxminarayan as PW2 and Exs.P1 to P8 were
marked. The appellant herein examined one of its officials
as RW1 and DL extract was marked as Ex.R1 and policy of
insurance was marked as Ex.R2.
4. Upon consideration of the materials produced and
the witnesses examined, the learned Commissioner
answered the points for consideration in favour of the
claimant and as against the appellant/insurance company
and awarded a compensation of Rs.1,40,140/- with
interest thereon at 12% per annum.
5. Learned counsel for the appellant-insurance
company contended that the employer-employee
relationship has not at all been established. He submitted
that the claimant in this case is one Shankaraiah S/o
Siddaiah, whereas all the documents show that the person
injured in the accident was Sri. Shekharaiah S/o Siddaiah.
He further submitted that there is dispute about the
identity of the person injured and the learned
Commissioner has committed a serious error in recording
a finding that the employer-employee relationship has
been established in this case. He has also contended that
the learned Commissioner has erred in fixing the loss of
earning capacity at 30%, even though fractures suffered
were minor in nature. He further submitted that the
qualified medical practitioner examined before the learned
Commissioner is one Dr. Laxminarayan, who has carried
notoriety for issuing false disability certificates and his
license to practice has been suspended. Therefore, he
submitted that the award is liable to be set-aside by
allowing this appeal.
6. I have given my anxious consideration to the
submission made by the learned counsel for the
appellant/insurer and also perused the records.
7. Regarding employer-employee relationship, the
claimant has pleaded that he was working as driver in
Maxicab bearing registration No.KA-35/2771 owned by
respondent No.1-Smt.Saraswati. The said respondent No.1
has filed written statement before the learned
Commissioner admitting the employer-employee
relationship between herself and the claimant. Upon
consideration of the entire materials produced before him,
the learned Commissioner has recorded a finding that the
employer-employee relationship has been established in
this case and since it is a finding of fact, the same is not
liable to be interfered with since it is based on evidence.
8. The learned Commissioner has awarded
compensation on the basis that there was loss of earning
capacity to the extent of 30% suffered by the claimant.
Ex.P5-wound certificate shows the following fractures:
1) Contusion right forearm (middle) 2" x 2"
2) Tenderness chest 1" x 3"
3) Contusion left wrist 2" x 2"
X-ray of right forearm- E/o fracture of shaft of radius
and ulna (middle)
X-ray of left wrist- E/o fracture of lower end of
radius and ulna
Injuries 1 & 3 are grievous and 2 is simple in nature.
9. The said wound certificate was issued by the
Medical Officer, Primary Health Centre, Korlagundi, who
had examined the claimant on 16.8.2008 at 8 a.m.
Disability Certificate is issued by one Dr. K.
Laxminarayan, who is a physician and not an Orthopedic
Surgeon and he has assessed permanent physical
disability at 30%. It is relevant to notice that in many
cases, the learned counsel at Bar have submitted that this
Dr. Laxminarayan, carries notoriety for giving false
certificate on the degree of physical disability suffered by
the claimants. Taking into consideration the nature of
injuries, namely, fracture of bones of right hand, it is
reasonable to hold that the loss of earning capacity
assessed at 30% is on the higher side and same is fixed
at 20%. Accordingly, the compensation awardable to the
claimant is required to be recalculated as follows:
Rs.4,000 x 60/100 x 194.64 x 20/100 = Rs.93,427/-
10. The claimant is entitled to a total compensation
of Rs.93,427/- as against Rs.1,40,140/- awarded by the
learned Commissioner. The impugned award is modified
to the said extent. Accordingly, I proceed to pass the
following:
ORDER
a) The above appeal is allowed in part.
b) The impugned award is modified to the
extent that the claimant is entitled to a
total compensation of Rs.93.427/- as
against Rs.1,40,140/- awarded by the
claimant with interest thereon at 12% per
annum.
c) The excessive amount shall be refunded to
the appellant-insurance company
forthwith.
d) The amount in deposit, if any, is ordered
to be transmitted to the jurisdictional
Court of learned Senior Civil Judge
forthwith along with records.
Sd/-
JUDGE
JTR
