Karnataka High Court
Oriental Insurance Company Ltd vs Sri Ramakrishna on 2 February, 2022
Bench: P.Krishna Bhat
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.8218 OF 2010 (WC)
BETWEEN:
ORIENTAL INSURANCE COMPANY LTD.
DO-8, BENGALURU,
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
# 44/45, RESIDENCY ROAD,
BENGALURU-560 025,
REPRESENTED BY ITS DEPUTY MANAGER,
SMT. SUDHA GANESH.
... APPELLANT
(BY SRI ANUP SEETHARAMA RAO, ADV., FOR
SRI B.C. SEETHARAMA RAO)
AND:
1. SRI RAMAKRISHNA
AGED ABOUT 42 YEARS,
S/O. SRI ANKAKPPA,
RESIDENT OF RAMAPURA VILLAGE,
RAMANAGAR TALUK & DISTRICT.
2. SRI N. VENKATESH
MAJOR,
S/O. LINGA SHETTY,
BHARATHINAGAR, K.M.DODDI,
MADDUR TALUK,
MANDYA DISTRICT.
... RESPONDENTS
(NOTICE TO R-1 AND R-2 IS HELD SUFFICIENT VIDE
ORDER DATED 4-7-2016 AND 12-6-2014 RESPECTIVELY)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT AGAINST
THE JUDGMENT DATED 15-5-2010 PASSED IN WCA/CWC/NF/CR-
52/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, RAMANAGARA
DISTRICT, RAMANAGARA, AWARDING A COMPENSATION OF
RS.2,65,205/-.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is filed at the instance of Insurance
Company being aggrieved by the award dated 15-5-2010 in
WCA/CWC/NF/CR-52/2008 passed by the Labour Officer
and Workmen's Compensation Commissioner, Ramanagar.
2. One Ramakrishna was the claimant before the
Commissioner. He presented the claim petition on the
allegation that he was working as a Driver in a bus bearing
Registration No.KA-19-4539 owned by respondent No.2 and
insured with the appellant. He further stated that on
14-11-2006 at 3:45 p.m., while he was driving the bus near
Kalamandir of R.P. Road, Mandya, one person all of a sudden
came across the road and hence, he had applied break and
on account of same, he lost control over the bus and dashed
against an electric pole and compound wall of Kalamandir
and on account of that, he suffered grievous injuries.
3. Before the Commissioner, respondent No.2-owner of
the bus remained ex-parte. Insurance Company filed its
detailed statement of objections denying the employer and
employee relationship and its liability to pay the
compensation amount.
4. During enquiry, the claimant examined himself as
P.W.1, and examined a qualified medical practitioner as
P.W.2 and Exs.P.1 to P.6 were marked. Insurance Company
examined one of its officials as R.W.1 and insurance policy
was marked as Ex.R.1.
5. Upon hearing the learned counsel on both sides and
perusing the records, the Commissioner allowed the claim
petition in part and awarded compensation of Rs.2,65,205/-
with interest at the rate of 12% per annum.
6. Learned counsel for the appellant-Insurance
Company submitted before me that the claimant himself was
drunk and he was examined before the Medical Officer at
District Hospital, Mandya, and Doctor had noted in M.L.C.
register that he was smelling of alcohol and he was unsteady
in his gait and therefore, in view of provisions of Section 3(1)
Proviso (b)(i) of the Employee's Compensation Act, 1923, read
with Section 185 of the Motor Vehicles Act, 1988, Insurance
Company is not liable to pay the compensation. Secondly, he
contended that the Commissioner has awarded excessive
compensation by relying upon the evidence of P.W.2, whose
evidence is inconsistent with the contents of Wound
Certificate-Ex.P.5. He, therefore, submitted that no reliance
could have been placed by the Commissioner on such medical
evidence and therefore, the quantum of compensation
awarded is exorbitant and hence, it is required to be reduced.
7. Respondent No.1-claimant is served and absent.
8. I have given my anxious consideration to the
submission made by the learned counsel for the appellant
and I have carefully perused the records.
9. Even though, the learned counsel for the appellant
has contended that the claimant himself was drunk at the
time of the accident and therefore, in view of Section 3(1)
Proviso (b)(i) of the Employee's Compensation Act, 1923, read
with Section 185 of the Motor Vehicles Act, 1988, Insurance
Company is not liable to pay the compensation, he candidly
admitted that he has not taken such a plea in the objection
filed on behalf of the Insurance Company. He, however,
submitted that he is in possession of M.L.C. register extract
to demonstrate the same, even though same has not been
produced before the Commissioner. Admittedly, no evidence
has been led on this aspect and the relevant documents have
not been produced before the Commissioner and therefore, it
is not open for the Court to consider the said ground in an
appeal under Section 30(1) of the Employee's Compensation
Act, 1923, at this late stage. Accordingly, it is rejected.
10. Commissioner has mainly placed reliance on
evidence of P.W.2-qualified medical practitioner and Ex.P.5-
Wound Certificate issued by P.W.2 with regard to injury
suffered by the claimant. P.W.2 has stated in his Affidavit
evidence as follows:
"F ¥ÀæPÀgÀtzÀ CfðzÁgÀ£ÁzÀ gÁªÀÄPÀȵÀÚ UÉÆvÀÄÛ. DvÀ£ÀÄ
¢: 14/11/2006gÀAzÀÄ C¥ÀWÁvÀzÀ°è UÁAiÀÄUÉÆAqÀÄ
aQvÉìUÁV £ÀªÀÄä QèäPïUÉ §A¢zÀÝ£ÀÄ. CfðzÁgÀ£À£ÀÄß
¥ÀjÃQë¹zÁUÀ DvÀ£À gÉÊmï ±ÉÆîØgï£À ¨sÁUÀPÉÌ, JqÀPÁ°£À
¥ÁzÀzÀ ªÀÄƼÉUÀ½UÉ, JqÀPÁ°£À ªÀÄƼÉUÉ, ºÀuÉAiÀÄ ¨sÁUÀPÉÌ
zÉúÀzÀ EvÀgÀ ¨sÁUÀUÀ½UÉ UÁAiÀÄUÀ¼ÁVzÀݪÀÅ. ¸ÀzÀj
UÁAiÀÄUÀ½UÉ PÀë-QgÀt ¥ÀjÃPÉë ªÀiÁr¹ £ÉÆÃqÀ¯ÁV DvÀ£À
gÉÊmï ±ÉÆîØgï ¨sÁUÀzÀ ªÀÄƼÉAiÀÄÄ r¸ï¯ÉÆÃPɵÀ£ï DVzÀÄÝ
ªÀÄÆ¼É ªÀÄÄj¢gÀĪÀÅzÀÄ ªÀÄvÀÄÛ JqÀPÁ°£À ¥ÁzÀzÀ ªÀÄƼÉ
ªÀÄvÀÄÛ JqÀPÁ°£À ªÀÄƼÉUÀ½UÉ ¥ÉlÄÖ ©zÀÄÝ ªÀÄÆ¼É ªÀÄÄjvÀ
GAmÁVgÀĪÀÅ PÀAqÀÄ §A¢vÀÄ. ¸ÀzÀj ªÀÄÆ¼É ªÀÄÄjvÀzÀ
UÁAiÀÄUÀ½UÉ ¦.M.¦ ºÁQ ¸ÀzÀj UÁAiÀÄPÀÌ ªÀÄvÀÄÛ EvÀgÉ
UÁAiÀÄUÀ½UÉ ¸ÀÆPÀÛ OµÀzÉÆÃ¥ÀZÁgÀ ªÀiÁr aQvÉì
¤Ãr¯Á¬ÄvÀÄ. CfðzÁgÀ¤UÉ GAmÁVgÀĪÀ UÁAiÀÄUÀ¼ÀÄ
ªÀÄÆ¼É ªÀÄÄjvÀUÀ¼ÀÄ wêÀæ ¸ÀégÀÆ¥ÀzÀ UÁAiÀÄUÀ¼ÁVgÀÄvÀÛªÉ.
CfðzÁgÀgÀ£ÀÄß DUÁUÀ £ÀªÀÄä QèäPïUÉ §AzÀÄ
ºÉÆgÀgÉÆÃVAiÀiÁV aQvÉìAiÀÄ£ÀÄß ¥ÀqÉAiÀÄĪÀAvÉ, DUÁUÀ ¸ÀÆPÀÛ
¸À®ºÉUÀ¼À£ÀÄß ¥ÀqÉAiÀÄĪÀAvÉ «±ÁæAwAiÀÄ£ÀÄß ¥ÀqÉAiÀÄĪÀAvÉ
ºÁUÀÆ PÁ®PÁ®PÉÌ OµÀ¢ü ¥ÀqÉAiÀÄĪÀAvÉ ¸ÀÆa¸À¯Á¬ÄvÀÄ."
11. Perusal of Ex.P.5-Wound Certificate issued by
P.W.2 shows the following injuries:
"xxx xxx 14-11-06 at 3:45 p.m. by private Bus KA-19-
4539 near Kalamandir, Mandya.
X-Ray (R) Forearm # BB & FAPOPOALE
X-Ray (L) Ankle # Medial Malleolus
The injured person was first seen by the undersigned at
14.11.06 at 9 p.m. on the 14.11.06 and the examination was
commenced at 9 p.m., when the following injuries were found:
1. (R) Forearm swelling deformity xxx
2. Ankle swelling xxx xxx # medial malleolus
pop B/K
3. Fore head abrasions 2 x 1 cm pain.
xxx xxx."
12. From Ex.P.5, it cannot be said that P.W.2 had
noticed bone fracture of forearms on the claimant and
fracture of malleolus.
13. It is contrary to oral evidence given by P.W.2. As a
matter of fact, the Wound Certificate does not disclose
fracture dislocation of right shoulder. In that view of the
matter, it is obvious, P.W.2 was either deposing falsely, or he
has never examined the claimant. Hence, no reliance can be
placed on the statement of P.W.2 and on the basis of such
evidence, ascertainment of loss of earning capacity made by
the Commissioner is unsustainable. From the said very fact,
it goes to show that the claimant has made an attempt to play
fraud on the Commissioner to sustain the claim for
compensation. Cross-examination of P.W.2 also shows that
the claimant having suffered the alleged injury in Mandya
Town had gone to Mysuru to take treatment from P.W.2. In
that view of the matter, the evidence placed by the claimant
that he sustained fracture could not have been accepted by
the Commissioner. Accordingly, I pass the following
ORDER
i. The appeal is allowed and the claim petition before
the Commissioner is dismissed, and
ii. The amount in deposit shall be refunded to the
appellant, forthwith.
Sd/-
JUDGE
kvk
