The Divisional Manager vs Tippanna S/O Sediyappa ...
2022 Latest Caselaw 3658 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 4TH DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
               M.F.A.No.21537/2010 (WC)
        C/W. M.F.A.NOS.21538 AND 21539 OF 2010

IN MFA.NO.21537/2010
BETWEEN:

THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
DIVISION OFFICE NO.2, JOSHI BUILDING,
LAMINGTON ROAD, HUBLI.
                                               ...APPELLANT
(BY SRI M.G.GADGOLI, ADVOCATE)

AND :

1.      TIPPANNA S/O SEDIYAPPA DASANNAVAR,
        AGE:26 YEARS, OCC:NIL,
        R/O DIDGUR, TQ. AND DIST:HAVERI,
        NOW AT UNKAL, HUBLI, DIST:DHARWAD.

2.      HAJARATH ALI S/O ABBAS ALI DIDAGUR,
        AGE:30 YEARS, OCC:BUSINESS,
        R/O UPPUNASI, TQ:HANGAL, DIST:HAVERI.
                                            .,..RESPONDENTS

(BY SRI HARISH S.MAIGUR, ADVOCATE FOR RESPONDENT NO.1)
(NOTICE TO RESPONDENT NO.2-HELD SUFFICIENT)

        THIS M.F.A. IS FILED U/SEC.30(1) OF THE W.C.ACT,
AGAINST THE JUDGMENT AND ORDER DTD:23-12-2009 PASSED
IN WCA/NF.NO.114/2008 ON THE FILE OF THE LABOUR OFFICER
                            :2:



AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-
DIVISION NO.2, HUBLI SUB-DIVISION-II, HULBI, AWARDING
COMPENSATION OF RS.1,77,943/- WITH INTEREST AT THE RATE
OF 12% P.A., FROM THE DATE OF PETITION TILL REALISATION.



IN MFA.NO.21538/2010
BETWEEN

THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.
DIV.OFFICE NO.2, JOSHI BUILDING,
LAMINGTON ROAD, HUBLI.
                                             ...APPELLANT
(BY SRI M.G.GADGOLI, ADVOCATE)

AND :

1.      MAHABOOBKHAN S/O ABDULRAZAK ADARKATTI,
        AGE:27 YEARS, OCC:NIL,
        R/O SANGUR, TQ. AND DIST: HAVERI,
        NOW AT BANKAPUR CHOWK, HUBLI, DIST:DHARWAD.

2.      HAJARATH ALI S/O. ABAS ALI DIDAGUR,
        AGE 30 YEARS, OCC:BUSINESS,
        R/O UPPUNASI, TQ:HANGAL,DIST: HAVERI,
        (OWNER OF CANTER GOODS VEHICLE REG.
        NO.KA-27/A-1372)
                                            ...RESPONDENTS

(BY SRI HARISH V.MAIGUR, ADVOCATE FOR RESPONDENT NO.1)
(SERVICE OF NOTICE TO RESPONDENT NO.2-HELD SUFFICIENT)


        THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE
WORKMEN'S COMPENSATION ACT PRAYING TO SET ASIDE THE
                           :3:



JUDGMENT AND AWARD DATED 23.12.2009 PASSED IN W.C.A.
N.F.NO.115/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER     FOR   WORKMEN'S    COMPENSATION,      SUB-
DIVISION-2, HUBLI.



IN MFA.NO.21539/2010
BETWEEN

THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
DIVISION OFFICE NO.2, JOSHI BUILDING,
LAMINGTON ROAD, HUBLI.
                                                ...APPELLANT
(BY SRI M.G. GADGOLI, ADVOCATE)

AND

1.    MAHADEVAPPA S/O RAMAPPA MELINAMANI,
      AGE 32 YEARS, OC:NIL,
      R/O VARUR, TQ:HUBLI, DIST:DHARWAD.

2.    SRI HAZARAT ALI S/O ABBAS ALI DAGADUR,
      AGE:30 YEARS, OCC:OWNER OF VEHICLE,
      R/O UPPUNASI, TQ:HANGAL, DIST:HAVERI.
                                          ...RESPONDENTS

(BY SRI HARISH S.MAIGUR, ADVOCATE FOR RESPONDENT NO.1)
(SERVICE OF NOTICE TO RESPONDENT NO.2-HELD SUFFICIENT)

      THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE
WORKMEN'S COMPENSATION ACT PRAYING TO SET ASIDE THE
JUDGMENT   AND   AWARD    DATED    23.12.2009   PASSED   IN
W.C.A./NF.NO.116/2008 ON THE FILE OF THE LABOUR OFFICER
                              :4:



AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB
DIVISION-2, HUBLI.


     THESE APPEALS ARE COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

These three appeals arise out of an order passed by

the Commissioner under the Employees Compensation Act,

1923 (for short, 'the E.C.Act')

2. The case of the claimants was that they were

driver and hamalies in respect of a goods vehicle bearing

registration No.KA-27/A-1372. It was their case that on

04.07.2008 while they were proceeding from Basavankoppa

village to Vardi village in Hangal taluka for unloading the

stones, the goods vehicle toppled over, as a result of which,

they have suffered injuries. It was stated that since they

were employees and had suffered an accident during the

course of employment they were entitled to compensation

under the provisions of the E.C.Act.

3. The Commissioner on consideration of the

evidence adduced before him, came to the conclusion that

an accident had occurred and claimants had suffered

injuries. The Commissioner, accordingly, proceeded to

determine the compensation and awarded a sum of

Rs.1,77,943/- to claimant No.1, Rs.1,53,957/- to claimant

No.2 and Rs.2,39,829/- to claimant No.3.

4. It is against this order awarding compensation,

the present appeals have been filed.

5. The learned counsel for the appellant-Insurance

Company contended that claimants would not be covered

under the policy since the carrying capacity of the vehicle

was 1+2. He submitted that there has been no loss of

earning capacity. The determination of loss of earning

capacity was incorrect. He also submitted that the driver of

the truck did not possess the necessary endorsement to

drive a goods vehicle.

6. The Commissioner on consideration of the

documentary evidence produced has recorded a clear

finding that an accident did occur and the claimants

suffered injuries. In order to come to the conclusion, the

Commissioner relied upon the FIR, MVI report and also the

charge sheet.

7. In order to determine the compensation, the

Commissioner relied upon the evidence of Doctor-Sri G.

Shivappa a consulting Orthopedic Surgeon, who was

examined as P.W.2. The said Doctor has stated that

claimants have suffered permanent disability in the range of

45 to 50%, 35 to 40% and 65 to 70% respectively. Having

regard to the fact that the claimants were the driver and

hamalies and they have suffered permanent physical

disability to the extent of 40 to 70%, the loss of earning

capacity determined by the Commissioner at 45%, 35% and

65% respectively in respect of three claimants cannot be

said to be arbitrary or unreasonable.

8. In my view, the loss of earning capacity is based on

the disability as indicated by the qualified medical

practitioner and therefore, the loss of earning capacity

arrived at by the Commissioner cannot be found fault with.

9. In any view of the matter, the loss of earning

capacity is arrived on the basis of the expert evidence

adduced before the Commissioner and is essentially an

exercise in appreciation of evidence.

10. As regards the contention that the driver of the

lorry did not possess the requisite endorsement is

concerned, the license that is produced indicates that there

is an endorsement indicating the driver to drive a heavy

transport vehicle. Therefore, this argument also cannot be

sustained.

11. No substantial question of law as such would arise

for consideration in this regard. In my view, in any angle, I

find no question of law in this matter. Accordingly, appeals

are dismissed.

12. However it is noticed here that the Commissioner

has committed an error in not awarding the interest at the

rate of 12%, as required under the statute, from the date of

expiry of 30 days from the date of accident. It is therefore

necessary to modify the award only insofar as it relates to

awarding of interest on the compensation. Consequently,

the amount awarded by the Commissioner shall carry

interest at the rate of 12% per annum from the date of

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

payment.

The amount in deposit shall be transmitted to the

Commissioner for disbursement forthwith.

SD JUDGE ckk