Divisional Manager vs T Surya Nayak @ Suresh Nayak
2022 Latest Caselaw 486 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 12TH DAY OF JANUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

       MISCELLANEOUS FIRST APPEAL No.22014/2010 (WC)

BETWEEN:

THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
BALLARI, NOW REP. BY ITS
THE REGIONAL MANAGER,
SUMANGAL COMPLEX,OPP:CORPORATION,
LAMINGTON ROAD, HUBBALLI
DIST:DHARWAD.
                                             ...APPELLANT

(BY SMT. PADMAJA TADAPATRI FOR SRI. K L PATIL, ADVOCATE)

AND:

1.     T. SURYA NAYAK @ SURESH NAYAK
       S/O. HIRIYA NAYAK
       AGE: 24 YEARS
       R/O. JANEKUNT TANDA
       TQ. & DIST. BALLARI.

2.     SAYYAD KHAJABA, S/O. SAYYAD AMEENUDDIN
       AGE:MAJOR
       R/O. HOUSE NO.140, WARD NO.4
       BANDIMOTE, BALLARI.
       (OWNER OF THE TRUCK BEARING NO.KA34/4525)

                                         ...RESPONDENTS
(BY SRI. B. C. JNANAYYASWAMI, ADVOCATE FOR R1;
     R2 - SERVED)
                                    2




     THIS MFA IS FILED U/SEC.30(1)(a) OF THE WORKMEN
COMPENSATION ACT, AGAINST THE JUDGMENT AND ORDER
DT:31.12.2009, PASSED IN WC NF NO.440/2006 ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMENS COMPENSATION, SUB-DIVISION-II, BALLARI,
AWARDING THE COMPENSATION OF `80,640/- WITH INTEREST
AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION AND
SHALL BE DEPOSITED WITHIN ONE MONTH FROM THE DATE OF
THE ORDER.

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

                            JUDGMENT

The instant appeal is filed by the Insurer of the

truck bearing registration No.KA-35/4525, which was

involved in the accident that had taken place on

28.02.2006, in which the claimant had sustained

injuries, challenging the judgment and award dated

31.12.2009, passed by the Commissioner for

Workmen's Compensation, Sub-Division-II, Ballari

(hereinafter referred to as 'the Commissioner', for

brevity) in WC NF No.440/2006, wherein the

claimant was awarded a compensation of `80,640/-

with interest as provided under the statute.

2. The claimant had filed a petition under

Section 10 of the Workmen's Compensation Act 1923,

claiming compensation towards the injuries suffered

by him in the accident that had taken place on

28.02.2006. It is the case of the claimant that, on

28.02.2006, when he was traveling in the offending

lorry as an employee of the owner of the offending

lorry, the said lorry met with an accident and in the

said accident the claimant had suffered grievous

injuries and was admitted in a private hospital for a

period of 15 days and he had taken extensive

treatment for the injuries suffered by him in the

accident. The Commissioner after appreciating the

oral and documentary evidence available on record,

partly allowed the petition awarding compensation of

`80,640/- with statutory interest to the claimant and

saddled the liability on the Insurer of the offending

lorry bearing registration No.KA-34/4545. Being

aggrieved by the same, the Insurer is before this

Court.

3. Learned counsel for the appellant - Insurer

submits that the Commissioner has erred in

entertaining the claim petition as the claimant had

failed to prove the relationship of employee and

employer and therefore the Commissioner is not

justified in awarding any compensation amount to the

claimant. She also submits that the claimant has

suffered only simple injuries and claimant also had

failed to prove that he had an income of `3,000/- per

month. She further submitted that the rate of

interest awarded by the Commissioner is also on the

higher side. Accordingly she prays to allow the

appeal.

4. Per Contra, learned counsel appearing for

the claimant has argued in support of the impugned

judgment and award passed by the Commissioner and

prays to dismiss the appeal.

5. I have carefully considered the rival

arguments and also perused the material evidence

available on record.

6. The accident in question is not disputed

and so also the fact that the offending lorry was duly

insured with the Insurer as on the date of the

accident. Before the Commissioner, the owner of the

lorry has admitted that the claimant was his

employee. Therefore a finding of fact has been

recorded by the Commissioner on the basis of the

material evidence available on record with regard to

the relationship of employee and employer between

the claimant and the owner of the lorry. Under the

circumstances, it is not now open for the Insurer of

the offending lorry to contend that the claimant was

not an employee of the respondent - owner of the

offending lorry.

7. Be that as it may, it is a settled position of

law that, an appeal under section 30 of the

Workmen's Compensation Act 1923 would be

entertained only on substantial question of law raised

by the appellant. The question with regard to the

relationship of employee and employer between the

claimant and owner of the lorry is a finding of fact

recorded by the Commissioner and the same cannot

be considered as a substantial question of law.

8. Insofar as the compensation amount

awarded by the Commissioner is concerned, the same

is just and proper. The Commissioner has considered

the income of the claimant at `3000/- per month on

the basis of the material evidence available on record

and this finding, which is also a finding of fact,

cannot be disturbed in an appeal filed under Section

30 of the Workmen Compensation Act, 1923.

9. The Tribunal has awarded an interest at

12% per annum on the compensation awarded by it

and the same is as provided under the statute and

therefore, it cannot be said to be excessive. It is

made clear that the interest of 12% p.a. awarded by

the Tribunal shall be from 30 days after the accident

in question and since the Insurer has not disputed

the issuance of Insurance Policy in respect of the

offending vehicle, which was admittedly valid as on

the date of the accident, the Commissioner has

rightly saddled the liability to pay the compensation

amount on the Insurer.

10. The learned counsel for the appellant has

failed to make out any substantial question of law

which arise for consideration in this appeal.

Therefore I find no merit in this appeal and

accordingly I decline to entertain the same.

The appeal is therefore dismissed. The amount

in deposit, if any, shall be transferred by the Registry

to the competent court for disbursement.

In view of disposal of the main appeal,

Miscellaneous Civil No.110778/2010 does not survive

for consideration.

Sd/-

JUDGE

gab