Karnataka High Court
The Divisional Manager vs Shri. Shafi S/O Ibrahim Sab on 14 July, 2022
Bench: P.Krishna Bhat
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MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISC. FIRST APPEAL NO. 22420 OF 2010 (WC)
C/W
MISC. FIRST APPEAL NO. 22807 OF 2010 (WC)
IN MFA NO.22420/2010
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
HOSPETH. NOW REP. BY ITS
DIVISIONAL MANAGER R.BHASKAR,
UNITED INIDA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, YELAMANCHALI COMPLEX,
STATION ROAD, HOSPETH.
...APPELLANT
(BY SRI S. S. KOLIWAD, ADVOCATE)
AND:
1. SHRI. SHAFI S/O IBRAHIM SAB
AGE: 35 YEARS, OCC: EX-HAMAL,
R/O HULAGI VILLAGE TAL/DIST. KOPPAL.
2. SHRI. K.M. MARULSIDDAYYA S/O BASAYYA
AGE: MAJOR, OCC: OWNER OF TT UNIT NO. KA-35-
Digitally signed
by SUJATA
T-2970 and 2969R/O NEAR KALESHWAR TEMPLE
SUBHASH
PAMMAR HOSPETH, DIST. BELLARY.
Location: HIGH
COURT OF
KARNATAKA, ...RESPONDENTS
DHARWAD
(BY SMT. SOUBHAGYA S. VAKKUND, ADVOCATE FOR
-2-
MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
SRI Y. LAKSHMIKANT REDDY, ADVOCATE FOR R1,
R2 SERVED)
MFA FILED U/S.30(1) OF WORKMEN'S COMPENSATION
ACT, 1923, AGAINST THE JUDGMENT AND ORDER DATED:23-
04-2010 PASSED IN WCA.NO.43/2005, ON THE FILE OF THE
LABOUR OFFICER & COMMISSIONER FOR WORKMEN'S
COMPENSATION, KOPPAL DISTRICT, KOPPAL, AWARDING THE
COMPENSATION OF RS.1,31,027/- WITH INTEREST AT THE
RATE OF 12% P.A., FROM THE DATE OF ORDER TILL ITS
DEPOSIT.
IN MFA NO.22807/2010
BETWEEN:
SRI M SHAFI S/O LATE IBRAIM SAB
AGE: 35 YEARS, OCC: EX-HAMALI, R/O: HULIGI
VILLAGE, TQ and DIST: KOPPAL.
...APPELLANT
(BY SRI. MANJUNATHA G. PATIL, ADVOCATE)
AND:
1. SRI K. M. MARULASIDDAIAH S/O LATE BASAIAH
AGE: MAJOR, OWNER OF THE TRACTOR- TRAILAR,
REG. NO. KA-35-T-2970 AND 2969, R/O: NEAR
KALESWARA TEMPLE, HOSPET, BELLARY DIST.
2. THE MANAGER
M/S. UNITED INDIA
INSURANCE CO. LTD.,
HOSPET BRANCH, BELLARY DIST.
...RESPONDENTS
(BY SRI S. S. KOLIWAD, ADVOCATE FOR R2, R1 SERVED)
MFA FILED U/SEC.30(1) OF WC ACT, AGAINST THE
JUDGMENT AND ORDER DATED: 23-04-2010 PASSED IN
WCA.NO.43/2005 ON THE FILE OF THE LABOUR OFFICER AND
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MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
COMMISSIOENR FOR WORKMEN'S COMPENSATION, KOPPAL
DISTRICT KOPPAL, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are at the instance of the Insurance
Company and the claimant calling in question the legality
and validity of the award dated 23.04.2010 in WCA
No.43/2005 by the learned Labour Officer and
Commissioner for Workmen's Compensation, Koppal (for
short 'the Commissioner') .
2. The claim petition proceeded on the allegation
that the claimant Shafi was working as a Coolie (Hamali)
in Tractor-Trailer bearing registration No.KA-35/T/2970
and 2969 belonging to respondent No.1-K.M.
Marulasiddayya and insured with the appellant-Insurance
Company. On 17.02.2004 at about 4.00 p.m., when the
claimant was proceeding in the said Tractor-Trailer as
MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
Hamali as per the instructions of insured-owner, on
account of rash and negligent driving of the said Tractor-
Trailer near Kasanakandi Sima, the vehicle capsized, on
account of the same, the clamant suffered fracture of the
femur bone etc.
3. Both the respondents entered appearance
through their respective counsel before the learned
Commissioner and resisted the claim petition by filing their
separate statement of objections. The insured-owner in his
statement of objections denied the employer and
employee relationship and claimant suffering injury in the
course of employment. Insurance Company in its
statement of objections denied the material averments in
made the claim petition.
4. During enquiry, the claimant examined himself
as PW1 and examined Co-workers as PW2 and PW3 and
qualified Medical Practitioner as PW4. Exs.P1 to Ex.P13
MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
were marked. Insurance Company examined one of its
officials as RW1and Policy of Insurance was also marked.
5. After hearing the learned counsel on both sides
and perusing the records, the learned Commissioner
allowed the claim petition in part awarding a compensation
of Rs.1,31,027/- with interest at the rate of 12% per
annum with effect from one month from the date of the
award.
6. Learned counsel for the appellant-Insurance
Company contended before me that finding of the learned
Commissioner that there was employer-employee
relationship is based on no evidence and he submitted that
the claimant was a fare-paying passenger on the Tractor-
Trailer. He further submitted that the learned
Commissioner has assessed loss of earning capacity at
higher percentage and therefore, the award passed is
liable to be set aside.
MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
7. Learned counsel appearing for the claimant
contended that the learned Commissioner has recorded
finding of employer and employee relationship between
the owner of the offending vehicle and the claimant by
relying on the evidence placed before him and therefore,
the same cannot be set aside. She further submitted that
based on the evidence placed before learned
Commissioner higher compensation ought to have been
awarded having regard to the extent of physical disability
suffered by the claimant. She also submitted that the
interest awarded is also not in accordance with the
mandate of Employees' Compensation Act, 1923.
Accordingly, the appeal is entitled to be allowed.
8. I have given my anxious consideration to the
submissions made on both sides and I have perused the
records.
9. The case of the claimant is that he was working
as a Hamali in the Tractor-Trailer bearing registration
MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
No.KA-35/T/2970 and 2969 and while he was proceeding
on the same on 17.02.2004 at about 4.00 p.m., as per the
instruction of the insured-owner, the vehicle met with an
accident and he suffered serious injuries. It is no doubt
true that owner-insured had filed statement of objections
to the effect that the claimant was not working as a coolie
under him. However, the claimant has not only examined
himself in support of his case but he has also examined
two other witnesses as PW2 and PW3 who were working
as coolie with him on the same Tractor-Trailer who have
supported the case of the claimant before the learned
Commissioner. Further, the claimant has also produced
FIR and complaint as per ExP1 and there is clear mention
in the complaint before police which was lodged on the
same day of the accident i.e. 17.02.2004 that the claimant
was proceeding on Tractor-Trailer as a coolie in the same.
After entire appreciation of the evidence, the learned
Commissioner has recorded a finding that the employer
MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
and employee relationship is proved in this case and since
the same is supported by evidence, I am not inclined to
interfere with the same.
10. The claimant has examined himself as PW1 and
also examined a qualified Medical Practitioner as PW4-Dr.
Vishwaprasad, who is an Orthopedic Surgeon. After
appreciating the evidence placed before him, learned
Commissioner has come to a conclusion that the claimant
has suffered fracture of right femur bone which had
mal-united and there was loss in the earning capacity to
the extent of 35%. The said finding is based on evidence
placed on record and therefore I affirm the said finding. In
view of the same, I do not find any illegality in the award
of compensation by the learned Commissioner.
11. Further in view of the specific provision in the
Employees' ompensation Act, 1923, the learned
Commissioner ought to have awarded interest on the
award amount at the rate of 12% per annum with effect
MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
from one month form the date of the accident. Since the
same has not been done by the learned Commissioner,
award is required to be modified. Accordingly, award
amount shall carry interest at the rate of 12% per annum
with effect from one month from the date of accident till
the date of deposit.
12. I do not find any good ground to make any
enhancement in the award made by the learned
Commissioner having regard to the evidence available on
record. Accordingly, the case of the claimant to the said
extent is rejected.
13. In the result, appeal filed by the Insurance
Company is dismissed. Appeal filed by the claimant is
allowed in part in terms as above.
14. The amount in deposit shall be transmitted to
the Court of jurisdictional leaned Senior Civil Judge along
with records. The differential amount shall be deposited
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MFA No. 22420 of 2010
C/W MFA No. 22807 of 2010
before the learned Court below within six weeks from
today.
Sd/-
JUDGE
SSP
