Sri Narashimhamurthy S/O ... vs The Royal Sundaram Alliance ...
2022 Latest Caselaw 3003 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

     MISCELLANEOUS FIRST APPEAL No.1104/2011
                        C/W
     MISCELLANEOUS FIRST APPEAL Nos.11/2011,
           3206/2011 AND 3207/2011(WC)


IN M.F.A.No.1104/2011

BETWEEN:
SRI KHADARPASHA
S/O SYED MOUIDDIN
AGED ABOUT 27 YEARS
OCC:NIL (LOADER UNLOADER COOLIE IN
TRACTOR) RES:BEHIND SCHOOL,
N.R.COLONY, BANGALORE
(NOW RESIDENT OF MANINAKURIKE
KORTGERE T.Q.TUMKUR DISTRICT.
                                     ...APPELLANT
(BY SMT. M.C.UMADEVAMMA, ADVOCATE)
AND:

1.     THE ROYAL SUNDARAM ALLIANCE
       INSURANCE COMPANY LTD.,
       RICHMOND ROAD, BANGALORE.

2.     SRI SHIVALINGAIAH
       S/O KALLAVEERAIAH
       AGE:MAJOR, SUREHALLI
                           2




       KORATGERE T.Q.
       TUMKUR DISTRICT.
                                     ...RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R1- V.C.
 SRI CHITHAPPA, ADVOCATE FOR R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED
18.10.2010 PASSED IN WC/NFC/CR-19/2004 ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN      COMPENSATION,   SUB    DIVISION   -2,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

IN M.F.A.No.11/2011
BETWEEN:

SRI NARASHIMHAMURTHY
S/O THIMMAIAH
AGED ABOUT 27 YEARS
OCC-NIL (LOADER UNLOADER COOLIE
IN TRACTOR) RES: BEHIND SCHOOL,
N.R.COLONY, BANGALORE
(NOW RESIDENT OF MANINAKURIKE
KORTGERE T.Q.TUMKUR DISTRICT.
                                     ...APPELLANT
(BY SMT. M.C.UMADEVAMMA, ADVOCATE)
AND:

1.     THE ROYAL SUNDARAM ALLIANCE
       INSURANCE COMPANY LTD.,
       RICHMOND ROAD, BANGALORE.

2.     SRI SHIVALINGAIAH
       S/O KALLAVEERAIAH
       AGE:MAJOR, SUREHALLI
                          3




     KORATGERE T.Q.
     TUMKUR DISTRICT.
                                     ...RESPONDENTS

(BY SRI O MAHESH, ADVOCATE FOR R1- V.C.
 V/O DTD. 8.9.2011 NOTICE TO R2 IS
 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED
18.10.2010 PASSED IN WC/NFC/CR-18/2004 ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN       COMPENSATION,    SUB     DIVISION-2,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

IN M.F.A.No.3206/2011
BETWEEN:

THE ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.,
RICHMOND ROAD,
BANGALORE - 560 025.

BY

THE ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.,
SORRENTO BUILDING, No.6, 1ST FLOOR
LATTICE BRIDGE ROAD, ADYAR
CHENNAI - 600 020.
BY IT'S MANAGER.                     ...APPELLANT

(BY SRI O MAHESH, ADVOCATE - V.C.)
                          4




AND:

1.     SRI NARASHIMHAMURTHY
       S/O THIMMAIAH, MAJOR
       R/A. N.R.COLONY
       BANGALORE -72.

2.     SRI SHIVALINGAIAH
       MAJOR, S/O KALLAVEERAIAH
       SURENAHALLI, KORATAGERE TALUK
       TUMKUR DISTRICT - 572 101.

                               ...RESPONDENTS

(BY SRI M.C.UMADEVAMMA, ADVOCATE FOR R1
 SRI NANDISH GOWDA, ADVOCATE FOR R2)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED
18.10.2010 PASSED IN WCA/BNG-2/NGC/CR No.18/2004
OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION, BANGALORE SUB DIVISION-
2, BANGALORE, AWARDING A COMPENSATION OF
Rs.1,36,653/-.

IN M.F.A.No.3207/2011
BETWEEN:

THE ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.,
RICHMOND ROAD,
BANGALORE - 560 025.
BY

THE ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.,
SORRENTO BUILDING,
NO.6, 1ST FLOOR
                           5




LATTICE BRIDGE ROAD, ADYAR
CHENNAI - 600 020.
BY IT'S MANAGER.                       ...APPELLANT

(BY SRI O MAHESH,ADVOCATE - V.C.)

AND:

1.     SRI KHADARPASHA
       S/O SAYED MOUIDDIN SAB
       MAJOR, R/A BEHIND SCHOOL,
       N.R.COLONY, BANGALORE-72.

2.     SRI SHIVALINGAIAH
       MAJOR, S/O KALLAVEERAIAH
       SURENAHALLI, KORATAGERE TALUK
       TUMKUR DISTRICT - 572 101.

                                   ...RESPONDENTS

(BY SRI M.C.UMADEVAMMA, ADVOCATE FOR R1
 SRI NANDISH GOWDA, ADVOCATE FOR R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED
18.10.2010 PASSED IN WCA/BNG-2/NFC/CR No.19/2004
OF THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISION-2, BANGALORE, AWARDING A COMPENSATION
OF Rs.60,809/-.
     THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                   JUDGMENT

The appeals in MFA No.1104/2011 and MFA

No.11/2011 are at the instance of claimants seeking

enhancement of the compensation and the appeals in

MFA No.3207/2011 and MFA No.3206/2011 are at the

instance of insurance company calling in question the

liability imposed on them by the common judgment

and award dated 18.10.2010 in WCA/NFC/CR-18/2004

and WCA/NFC/CR-19/2004 by the Workmen

Compensation Commissioner, Labour Court,

Bengaluru.

2. The claim petitions were filed by the two

claimants namely Narasimha Murthy and Khadarpasha

with an allegation that both of them were working in

tractor and trailer as loader and un-loader owned by

respondent No.2 Shivalingaiah and insured with the

appellant- Royal Sundaram Alliance Insurance

Company Limited, Bengaluru. The further allegation is

that on 22.01.2004 during midnight hours while they

were proceeding in the tractor and trailer as loader

and un-loader, account of rash and negligent driving

of vehicle, it met with an accident resulting in grievous

injuries to both the claimants which caused loss in

their earning capacity.

3. Respondent No.2 is the owner of the

insured vehicle. He remained ex-parte before the

learned Commissioner. The appellant-insurance

company contested the proceedings denying the

material averments made in the claim petitions.

4. During inquiry, both the claimants

examined themselves and they also examined PW.2-

Dr.S.U.Shivaprakash who is a qualified medical

practitioner and they also examined one official from

the taluk hospital at Gubbi. The FIR, charge sheet,

wound certificate, discharge summary and other

relevant documents were produced and marked.

Respondent- insurance company examined its legal

officer by name P. Premanand as their witness and

policy of insurance was marked.

5. After hearing learned counsel on both sides

and perusing the records, learned Commissioner

allowed the claim petitions in part and awarded a

compensation of Rs.1,36,653/- to claimant Narasimha

Murthy and Rs.60,809/- to claimant Khadarpasha with

interest thereon at 7.5% from the date of petition till

the date of the award and from there onwards at 12%

p.a. till the date of deposit.

6. Learned counsel for the respondent-

insurance company Sri. O. Mahesh vehemently

contended that since the claimants were not residents

within the jurisdiction of learned Commissioner who

passed the award, learned Commissioner did not have

the territorial jurisdiction to proceed with the matter

and pass the award and he should have in exercise of

powers under Section 21 of Employees' Compensation

Act, 1923 (hereinafter referred to as 'Act' for short)

transferred the same to the Commissioner who was

having jurisdiction to try the matter arising from

Tumakuru district. For this purpose, he contended

that the accident has taken place in Tumakuru district

and both the claimants were residents of Tumakuru

district. He, therefore, submitted that learned

Commissioner ought to have dismissed the claim

petition for want of jurisdiction and the appeal is

entitled to be allowed.

7. His second contention is that the policy of

insurance issued covers the risk of only driver of the

vehicle and therefore the insurance company is not

liable to pay compensation awarded to the two

claimants herein and on that ground also, this appeal

is entitled to be allowed.

8. Per contra, learned counsel for the

claimants submitted that the claimants are residents

of Bengaluru namely N.R. Colony and the claim

petition was presented with the said address. She

contended that no specific plea was taken in the

written statement filed by the respondent-insurance

company to the effect that at the time of filing of the

claim petitions, the claimants were not residing in

Bengaluru and therefore the learned Commissioner

lacks territorial jurisdiction to entertain the claim

petition.

9. Insofar as the liability is concerned, learned

counsel for the claimants submitted that the vehicle is

a tractor trailer and that was insured by the appellant-

insurance company and the same is specifically

admitted by RW.1. She also submitted that RW.1 has

admitted during the cross examination that the policy

issued in respect of offending vehicle was a package

policy. Therefore, she submitted that the contention

of the learned counsel for the appellant-insurance

company is not liable to be accepted and the liability

fastened on the insurance company to pay

compensation by the learned Commissioner is just and

reasonable.

10. Her next contention is that the claimant

Narasimha Murthy had suffered fractures in both the

legs and his foot was completely crushed and the

evidence of qualified medical practitioner i.e. PW.2

shows that he is not even in a position to walk

properly and he was crawling. She therefore

submitted that the finding of the learned

Commissioner that he had suffered functional

disability to the extent of 35% is improper and

learned Commissioner ought to have held that he is

unfit to do any manual labour on account of disability

suffered by him and therefore the functional disability

should have been taken at 100%.

11. She further submitted that even with

regard to claimant Khadar Pasha, the functional

disability taken at 15% is inadequate and on the lower

side and it should also to be enhanced and

consequently compensation awarded in both the cases

is required to be enhanced.

12. I have given my anxious consideration to

the submissions made on both sides and I have

carefully perused the records.

13. The first contention of the learned counsel

for the insurance company is that the learned

Commissioner at Bengaluru lacks territorial jurisdiction

to try the claim petitions and make the award which is

impugned herein. His submission is that since the

accident had taken place within Tumakuru District and

the medical records show that the claimants when

they approached hospital on 22.01.2004 had given

their address as residing in Gubbi and Kortagere. It is

evident that they were not residing in Bengaluru and

therefore the learned Commissioner lacks territorial

jurisdiction. He therefore contended that learned

commissioner ought to have transferred the claim

petitions to the learned Commissioner of Tumakuru

district in exercise of powers under Section 21 of the

Act and this having not been done so, is illegal and

the award passed is without jurisdiction.

14. A perusal of the records shows that the

claim petitions were filed by the claimants and they

had given their address as residing in N.R. Colony,

Bengaluru. In the written statement filed by the

insurance company, there is no specific averment to

the effect that the claimants were not residing in the

said address. It is no doubt true that the medical

records show that at the time of accident, they were

residing in Gubbi and Kortagere. However, Section 21

of the Act also permits the claimants to approach the

learned Commissioner within whose jurisdiction the

claimants are residing. The Employees' Compensation

Act is a beneficial legislation. Since indisputably at

the time of filing the claim petitions both the claimants

were residing in Bengaluru, it cannot be said that the

learned Commissioner did not have territorial

jurisdiction to entertain the proceeding and pass the

award. I do not, therefore, find any substance in the

contention of the learned counsel for the insurance

company that the learned Commissioner had no

territorial jurisdiction to entertain the proceeding and

pass the award. Accordingly, the said contention is

rejected.

15. Insofar as the liability of the insurance

company is concerned, the insurance company has

examined its legal officer as RW.1. In his affidavit

filed in lieu of examination in chief, he has stated at

para No.5 of the affidavit that

"the vehicle registered and insured as tractor and trailer to be used for agriculture purpose only. The sitting capacity of the tractor and trailer as per RC and policy is only one i.e. driver only. Therefore, no passengers are allowed to be carried in the said vehicle. Therefore, the petitioner was traveling in the said vehicle as unauthorized passenger, such risk not required to be covered under Section 147(1) of the Motor Vehicles Act."

16. During the cross examination of RW.1, the

legal officer of the insurance company has stated that

the policy of the insurance is a comprehensive policy.

He has further stated that this comprehensive policy

means own damage and third party liability. Further,

he deposed as follows:

"I am working as Executive legal with the respondent Company.

Question: Do you know for what purpose the vehicle was registered?

Answer: I vehicle was registered for miscellaneous and special type.

Question: What is the meaning of miscellaneous and special type? Answer: It is other than the agriculture and farmer purpose can be used for commercial purpose.

The person who has be hit by the insured vehicle is called the 3rd party. It is not true to say that the Ex.R1-1 and Ex.R1-2 is fake document. I know that the petitioner Khadarpasha and Narasimha Murthy were traveling in the alleged vehicle as unauthorized occupants in the vehicle. I have not contacted the owner of the vehicle to ascertain that the petitioners were traveling as unauthorized occupants."

Thus, RW.1 says the tractor trailer could be used

for commercial purpose also and policy covered the

risk when used for such purpose.

17. The claimants have clearly stated that they

were engaged by respondent No.2 i.e. the owner

Sri. Shivalingaiah as coolie who used to work for the

purpose of loading and unloading. In the cross

examination of these witnesses, the said version has

not been shaken. Learned Commissioner has

recorded a finding that employer-employee

relationship is established and the said finding of fact

is based on evidence. I am not inclined to interfere

with it.

18. Since it is established that the claimants

were working as loader and un-loader at the time of

accident, the insurance company is liable to pay

compensation for the bodily injuries suffered by the

claimants and consequently for the loss of earning

capacity is suffered by them. The said aspect is

covered by two decisions of this Court namely (i)

2005 (4) KCCR 2325 (National Insurance

Company Ltd., Vs. Prakash and others) (ii) ILR

2011 KAR 4139 (National Insurance Company

Limited Vs. Sri. Maruthi and others (Division

Bench). In that view of the matter, the insurance

company cannot disclaim liability to pay compensation

awarded under the Act.

19. Insofar as the injuries suffered by the

claimant Narasimha Murthy is concerned, he was

inpatient from 21.01.2004 to 31.05.2004 in Victoria

hospital and he was taken to Nimhans hospital also for

treatment. The entire case sheet from the Victoria

hospital has been produced and they are on record.

They show that the claimant Narasimha Murthy had

suffered extensive fractures in both the legs including

the metatarsal bone etc. He was surgically operated

on couple of occasion and case sheet includes

diagrammatic representation of the affected parts of

both lower limbs of claimant Narasimha Murthy with

the implant inserted and the surgery done. PW.2 Dr.

U.Shivaprakash has also given evidence in detail

about residual incapacity suffered by claimant

Narasimha Murthy. In view of the injuries suffered in

the accident, he is not in a position to move properly.

The doctor has explained that he has to crawl and

could not walk properly. He also stated that there is

shortening of left leg by 2.5 cms and wasting of left

leg by 1 cms. Even if there is slight exaggeration in

the evidence of the qualified medical practitioner, it is

evident from the kind of fractures in both legs and

also the foot of the claimant Narasimha Murthy that

he is not in a position to do any manual labour.

Therefore, his functional disability is 100%. In that

view of the matter, the compensation awarded

towards loss of earning capacity is required to be

recomputed as follows:

216.91x1800 = Rs.3,90,438/-

The same shall carry interest at 12% p.a. w.e.f

30 days from the date of accident till the date of

deposit.

20. Insofar as the claimant Kadarpasha is

concerned, he had suffered fracture of left humerus.

The qualified medical practitioner has assessed his

loss of earning capacity at 15%. However, no hospital

case sheets are produced. He was inpatient for 4

days but there is nothing to show that any implant

was inserted while undergoing treatment for his left

humerus. The qualified medical practitioner has not

stated as to the degree of restriction in the movement

of left arm with specificity. He has no doubt stated

that there is malunion of the left humerus. It is

difficult to comprehend that the simple fracture of

humerus would lead to malunion of the fracture unless

there is some medical negligence in treating the

patient or the patient did not co-operate in the

treatment.

21. I am of the view that the whole body

disability assessed by the doctor at 15% is on the

higher side. Accordingly, I reduce it to 5%. Therefore,

the loss in the earning capacity insofar as the claimant

Kadarpasha is concerned is required to be recalculated

as follows:

225.22x1800x5/100 = Rs.20,269.80

The said compensation shall carry interest at 12% p.a.

w.e.f 30 days from the date of accident till the date of

payment.

22. Accordingly, I proceed to pass the

following:

ORDER

The appeal in MFA No.11/2011 filed by the

claimant Narasimha Murthy is allowed in part to the

above extent.

The appeal in MFA No.3206/2011 filed by the

appellant-insurance company is dismissed.

The appeal in MFA No.3207/2011 filed by the

appellant-insurance company is allowed in part

insofar as quantum of compensation is concerned.

The appeal in MFA No.1104/2011 filed by the

claimant Kadarpasha is dismissed.

Sd/-

JUDGE

SSD