Karnataka High Court

The Manager, vs Bhimsi @ Bhimappa S/O Basappa ... 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.23396 OF 2012 (WC)
BETWEEN
THE MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LIMITED
V. A. KALBURGI SQUARE, NEAR DESAI CROSS,
DESHPANDE NAGAR, HUBLI.
REPRESENTED BY ITS DEPUTY MANAGER,
LEGAL DEPARTMENT, CTS# 472-274,
V. A. KALBURGI SQUARE,
DESAI CROSS, DESHPANDE NAGAR, HUBLI.
                                                    ...APPELLANT
(BY SRI. G. N. RAICHUR, ADV.)

AND
1.    BHIMSI @ BHIMAPPA
      S/O BASAPPA TUKAPPANAVAR,
      AGE: 26 YEARS, OCC: NIL,
      R/O: AMMINABHAVI VILLAGE,
      TQ AND DIST: DHARWAD.

2.    YALLAPPA S/O DYAMAPPA HIREVALLI,
      AGE: MAJOR, OCC: TRANSPORT BUSINESS,
      R/O: LOKUR VILLAGE,
      TQ AND DIST: DHARWAD.
      (OWNER OF THE TRUCK NOKA-25/B-1594)
                                                ...RESPONDENTS

(BY SRI. SHIVAKUMAR S BADAWADAGI, ADV., FOR R1;
R2- NOTICE SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO SET ASIDE THE JUDGMENT
DATED 28.05.2012 IN WCA/NF NO.99/2009 PASSED BY THE LABOUR
                                 2


OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION,
SUB DIVISION II, HUBLI BY ALLOWING THIS APPEAL.

     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 of the award dated 28.05.2012 in WCA/NF No.99/2009

passed by the learned Labour Officer and Commissioner for

Workmen's Compensation, Sub Division II, Hubli (for short "the

Commissioner") .

2. Brief facts are that the claimant was working as

Hamali in truck bearing registration No.KA-25/B-1594 owned by

respondent No.1-Yallappa Dyamappa Hirevalli and insured with

the appellant herein. It is stated that as per the instructions of

respondent No.1, the claimant had gone in the lorry in question

and while he was unloading the granite slabs, one of them fell on

his left thigh and he suffered serious injuries. Initially, he was

admitted to Government Hospital, Dandeli and thereafter he was

admitted to District Hospital, Dharwad.

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

filed his written statement admitting the accident and also

stating that the truck in question was insured with the appellant.

He further admitted that the claimant was working as Hamali

since about one month prior to the accident. Respondent No.2,

who is the appellant herein filed his detailed written statement

denying all the averments made in the claim petition stating that

claimant was a gratuitous passenger in the lorry.

4. During the enquiry, claimant examined himself as

PW1 and Ex.P1 to Ex.P15 were marked. One qualified medical

practitioner, Dr. Jyotiprakash M Sultanpuri was also examined on

behalf of the claimant. RW1 and RW2 were examined for the

respondents and policy of insurance was marked.

5. Upon consideration of the entire materials produced

and the evidence let in, learned Commissioner answered the

points arising for consideration in favour of the claimant and as

against the appellant and awarded the compensation of

Rs.1,31,027/- with interest thereon at 12% per annum and also

penalty of Rs.25,000/-.

6. Learned counsel for the appellant, Sri. G. N. Raichur,

vehemently contended that the employer and employee

relationship has not been proved by the claimant and he submits

that in Ex.P.1/the complaint, claimant had stated that he was

working in Toll Naka. He further contended that in the policy of

insurance (Ex.R4), there is no coverage for the risk of Hamali

and therefore, the appeal is required to be allowed by holding

that the appellant is not liable to reimburse the compensation

ordered against the respondent No.1-insured. He also contended

that the driving licence of the driver of the lorry in question had

expired prior to the accident itself and RW1, the insured, had

clearly admitted the same in his cross-examination. He,

therefore, contended that there is violation of the policy

condition and the appellant is not liable to reimburse the

compensation. He also contended that the learned Commissioner

has committed serious error of law in fixing the loss in earning

capacity at 30% even though what was proved before the

learned Commissioner was fracture of shaft of femur. He,

therefore, submitted that the appeal is liable to be allowed and

the award be set aside by exonerating the appellant from

making reimbursement of the compensation.

7. Sri. Shivakumar Badawadagi, learned counsel

appearing for the appellant, equally vehemently contended that

the employer-employee relationship has been clearly established

and respondent No.1-insured has admitted the same in the

written statement. He also submitted that the lorry in question

being a heavy goods vehicle, there is compulsory coverage for

the coolies up to six in numbers under Section 147 of the Motor

Vehicles Act, 1988 and therefore, the appellant is not entitled to

contend that there is no coverage for coolie under the policy of

insurance and disclaim its liability. In this behalf, he placed

reliance on decision of this Court reported in 2012 ACJ 1408

(National Insurance Company v. Maruti and others) and

2005 (4) KCCR 2325 (M/s. New India Assurance Company

Limited vs. Prakash and another). He further submitted that

while it is true that RW1 had admitted that the driving licence of

the driver of the lorry in question had expired prior to the date of

the accident, still he draws my attention to the notarized copy of

the driving licence of the driver-Raju Hanamantappa Narendra,

which very clearly shows that the said driver was in possession

of valid and effective driving licence to drive the truck in

question. He also submits that the loss in the earning capacity

fixed by the learned Commissioner at 30% is fully based on the

evidence and therefore, the same is not liable to be interfered

with. His further grievance is that while awarding interest on the

compensation, the learned Commissioner has granted it w.e.f.

30 days from the date of the award and not from 30 days from

the date of the accident, which is against the plain wording of

the statute itself and therefore, submits that the same is

required to be rectified by this Court.

8. I have given my anxious consideration to the

submissions made on both sides and I have perused the records.

9. Insofar as the question of employer-employee

relationship is concerned, not only has the claimant pleaded

about it in the claim petition but also respondent No.1, in his

written statement filed in the claim proceedings, has very clearly

admitted that the claimant was working as Hamali in his lorry.

Learned Commissioner on consideration of the materials placed

before him, as final fact finding authority, has come to the

conclusion that the employer-employee relationship as between

the insured and the claimant was established and therefore,

there is no good ground to interfere with the same.

10. Insofar as contention of the learned counsel for the

appellant that the policy of insurance issued by it in respect of

the lorry did not cover the risk of a Hamali is concerned, the two

decisions rendered by this Court in 2012 ACJ 1408 (National

Insurance Company v. Maruti and others) and 2005 (4)

KCCR 2325 (M/s. New India Assurance Company Limited

vs. Prakash and another) are a complete answer to the same.

In the above said two decisions, it has been held that the truck

in question being a goods vehicle, there is compulsory coverage

for the Hamalies under the said Act. Therefore, the said

contention of the learned counsel for the appellant does not

merit any further consideration.

11. In regard to the question of expiry of the driving

licence of the driver of the lorry is concerned, learned counsel for

the appellant as well as the respondent, on perusal of the

notarized copy of the driving licence of the driver, available in

the Trial Court records have submitted that the same shows that

the driving licence of the driver of the lorry in question was valid

and effective as on the date of the accident and therefore, the

said contention does not survive for consideration.

12. Insofar as the assessment of loss in earning capacity

of the claimant is concerned, and the claimant was aged 30

years at the time of the accident, he had suffered fracture of the

shaft of femur as per the wound certificate as well as the

disability certificate. P.W.2-Dr.Jyotiprakash Sultanpuri, a

qualified medical practitioner and an orthopedic surgeon, has

given his assessment at 30% for loss in earning capacity.

Learned Commissioner having regard to the nature of the

fracture suffered, the location of the fracture and the difficulty

which the claimant was facing i.e. squatting and sitting cross

legged etc., has assessed the total physical disability at 30%. It

cannot be denied that femur bone is one of the most important

bones in the body which helps in the mobility of a person and

any disability to the same will affect the functional ability of a

person to work as a manual labour. Under such circumstances,

the 30% disability in earning capacity assessed by the learned

Commissioner, who is the fact finding authority, is not liable to

be interfered with.

13. The learned Commissioner ought to have fixed the

date of the award of interest w.e.f. 30 days from the date of the

accident and not w.e.f. 30 days from the date of the award.

Therefore, the same is liable to be rectified. Hence, the

following:

ORDER

The above appeal is dismissed.

While maintaining the quantum of compensation, it is directed that the claimant is entitled to receive interest on the compensation amount w.e.f. 30 days from the date of the accident.

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