The Divisional Manager vs Davalsab S/O Buddanasab ...
2021 Latest Caselaw 2465 Kant

                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.20635 OF 2012 (WC)

BETWEEN:

THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
BELGAUM, NOW REPRESENTED BY ITS
DEPUTY MANAGER - U.S.KAKODKAR
NEW INDIA ASSURANCE CO.LTD.
MTP HUB DIVISIONAL OFFICE
SHRINATH COMPLEX
NCM, HUBLI.
                                                    ...APPELLANT
(BY SRI. S.S. KOLIWAD, ADVOCATE)

AND:

  1. SHRI. DAVALSAB S/O.BUDDANASAB FANIBHAND
     AGE :25 YEARS, OCC: EX-DRIVER
     R/O. NEKAR PETH, RAMADURG
     TAL.RAMADURG, DIST. BELGAUM.

  2. SHRI. NARAYAN VENKATESH OGALLAPUR
     AGE : NOT MENTIONED, OCC : NOT MENTIONED
     R/O. PADAKOTI GALLI, RAMADURG
     DIST. BELGAUM.
                                                 ...RESPONDENTS
(BY SRI. MRUTYUNJAYA, ADVOCATE FOR SRI. SHIVARAJ
 S.BALLOLI, ADVOCATE FOR R.1. APPEAL ABATES AGAINST R.2.
 VIDE ORDER DATED 07.01.2020.)

     THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923, PRAYING THAT THIS HON'BLE COURT MAY
                                 2


BE PLEASED TO CALL FOR RECORDS, HEAR THE PARTIES AND ALLOW
THE APPEAL AS PRAYED BY SETTING ASIDE THE JUDGMENT/ORDER
PASSED BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, BAGALKOT DISTRICT, BAGALKOT, IN WCA NF
NO.150/2009 DATED 30.11.2011, IN THE INTEREST OF JUSTICE AND
EQUITY.

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

                             JUDGMENT

This is an insurer's appeal calling in question the legality of

the award dated 30.11.2011 in WCA NF No.150/2009 passed by the

Labour Commissioner, Bagalkot District, Bagalkot.

2. Brief fact are that, the claimant was working as

Driver of car bearing registration No.CNB-6000 owned by

respondent No.1 - Narayan Venkatesh Ogallapur and

insured with the appellant herein. It is stated that on

12.05.2009 while the claimant was driving the car in

question from Ramdurg to Bijapur, near Mudhol road, he

lost control over the car and it capsized resulting in

injuries to him.

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

Narayan Venkatesh Ogallapur entered appearance and

filed a written statement stating that the claimant was

working on call as driver in his car and he was utilizing his

services only when required and he was being paid for the

number of days he worked as driver. He further stated

that the car was insured with the appellant herein.

4. The appellant - Insurance Co. filed its separate

written statement.

5. During the enquiry, claimant examined himself

and got marked Exs.P.1 to P.9. One qualified medical

practitioner Dr. B.H.Doddamani was examined as P.W.2.

The appellant did not examine any witness, but policy of

insurance was marked as Ex.R.1(1).

6. Upon consideration of the materials produced and

the evidence let in, learned Commissioner answered all

the points for consideration in favour of the claimant and

against the appellant herein and he awarded a

compensation of Rs.1,69,751/- with interest thereon at

12% p.a.

7. The learned counsel for the appellant - Insurance

Co. has raised a substantial question of law contending

that the disability assessed by the learned Commissioner

and the compensation quantified based thereon is wholly

illegal and based on no evidence and therefore, it is liable

to be set aside. He pointed out that the claimant even as

per the wound certificate - Ex.P.5 and the disability

certificate - Ex.P.8, had suffered fracture of left scaphoid

bone and fracture of neck of left radius. In spite of the

same, learned counsel contends, the learned

Commissioner has quantified the loss of earning capacity

at 35%, whereas the location of the two fractures are on

the same hand and situated close to each other and in

such circumstances, he could not have added the

percentage of disability by including the disability arising

on each of the fractures. He therefore submitted that

appeal is entitled to be allowed and the loss of earning

capacity calculated by the learned Commissioner be

suitably reduced.

8. Learned counsel Sri. Mrutyunjaya appearing for

the claimant, equally vehemently contended that learned

Commissioner has examined medical evidence and the

evidence of the qualified medical practitioner and

thereafter has arrived at the finding and since he is the

final fact finding authority, this Court should not interfere

with the same. He therefore submits that the appeal

should be dismissed.

9. I have given my anxious consideration to the

submissions made by both sides and I have perused the

case papers.

10. The employer-employee relationship and the

accident resulting in the injuries taking place in the

course of and arising out of the accident is not in question

in this case. The wound certificate issued by Sri. Sai

Orthopaedic and Trauma Centre, Mudhol, marked as

Ex.P.5 shows that the claimant was examined on

12.05.2007 at about 5.30 p.m. and the Medical Officer in

the said Hospital had noticed one fracture of left scaphoid

bone and another fracture of left radius neck. Similarly,

P.W.2 - Dr. B.H. Doddamani has also stated that the

claimant had suffered fracture of left scaphoid bone and

fracture of neck of left radius. It is therefore obvious that

both the fractures are located on the same left hand and

the fracture locations are also close to each other. In

respect of the same, for each of the fractures, P.W.2 - Dr.

B.H.Doddamani has assessed physical disability amounting

to 20%, thereby assessing the permanent disability at

40% and by placing reliance on the same, learned

Commissioner has assessed the loss of earning capacity at

35%. Approach of the learned Commissioner is wholly

irrational to the point of being absurd and therefore the

loss of earning capacity assessed by the learned

Commissioner is liable to be reduced to 20%.

Accordingly, the compensation that is required to be

awarded to the claimant is required to be recalculated as

follows :

Rs.3,700/- x 60% x 218.47 x 20% = Rs.97,000/-

as against Rs.1,69,751/- awarded by the learned

Commissioner. The appeal is required to be allowed to

the said extent. Hence, the following :

The above appeal is allowed in part.

The claimant is entitled to receive a compensation of

Rs.97,000/- as against Rs.1,69,751/- awarded by the learned

Commissioner, with interest at the rate of 12% p.a. with effect

from 30 days from the date of the accident till the date of

realization.

The amount in deposit shall be transmitted to the

jurisdictional Court of learned Senior Civil Judge forthwith.

The excess amount shall be refunded by the said Court to the

Insurance Co.

Sd/-

JUDGE

Mgn/-