Karnataka High Court
The Branch Manager vs Mohan S/O : Shivayya on 16 September, 2022
Bench: H.P.Sandesh
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 25116 OF 2010 (WC-)
C/W
MISCELLANEOUS FIRST APPEAL NO. 25117 OF 2010
MISCELLANEOUS FIRST APPEAL NO. 25118 OF 2010
MISCELLANEOUS FIRST APPEAL NO. 25119 OF 2010
MISCELLANEOUS FIRST APPEAL NO. 25120 OF 2010
IN M.F.A.No.25116/2010
BETWEEN:
1. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO.LTD. BELLARY
REP. THROUGH ITS DIVISIONAL OFFICE
OPP : RADHIKA TALKIES, RAGHAVACHARI ROAD,
BELLARY
REP. BY ITS DIVISIONAL MANAGER
...APPELLANT
(BY SRI. NAGANGOUDA R KUPPELUR, ADVOCATE)
AND:
1. MOHAN S/O : SHIVAYYA
AGE : 26 YEARS, OCC : EX-LABOUR
R/O : KURAGODU VILLAGE, TQ and DIST : BELLARY
2. SYED BASHEER S/O :SYED GHAFERSAB
R/O : DOOR NO.9, WARD NO.17
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
GANESH COLONY, BELLARY DIST : BELLARY
(OWNER OF THE LORRY NO.KA-36/0053)
...RESPONDENTS
(NOTICE TO R1 IS HELD SUFFICIENT,
R2 SERVED)
THIS MFA FILED U/S. 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
AWARD DATED:29.06.2010 PASSED IN WCA:NF NO.16/2009,
ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER
FOR WORKMEN'S COMPENSATION, SUB-DIVISON - 2,
BELLARY, AWARDING THE COMPENSATION OF RS.1,22,304/-
WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE
OF PETITION TILL ITS DEPOSIT.
IN M.F.A.No.25117/2010
BETWEEN:
THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.
BELLARY
REP.THROUGH ITS DIVISIONAL OFFICE,
OPP : RADHIKA TALKIES
RAGHAVACHARI ROAD, BELLARY
REP. BY ITS DIVISIONAL MANAGER. APPELLANT
(BY SHRI NAGANGOUDA R KUPPELUR, ADV. )
AND
1. FAKKIRAPPA S/O : NINGAPPA
AGE : 35 YEARS, OCC : EX-LABOUR
R/O : KURAGODU VILLAGE
TQ and DIST : BELLARY
2. SYED BASHEER S/O : SYED GHAFERSAB
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
R/O : DOOR NO.9 WARD NO.17
GANESH COLONY, BELLARY
DIST : BELLARY
(ONWER OF LORRY NO.KA-36/0053). ..RESPONDENTS
(NOTICE TO R1 IS HELD SUFFICIENT,
R2 SERVED)
THIS MFA FILED U/S. 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
AWARD DATED:29.06.2010 PASSED IN WCA:NF NO.17/2009,
ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER
FOR WORKMEN'S COMPENSATION, SUB-DIVISON - 2,
BELLARY, AWARDING THE COMPENSATION OF RS.1,14,616/-
WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE
OF PETITION TILL ITS DEPOSIT.
IN M.F.A.No.25118/2010
BETWEEN
THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
BELLARY,
REP.THROUGH ITS DIVISIONAL OFFICE,
OPP: RADHIKA TALKIES,
RAGHAVACHARI ROAD,BELLARY
REP.BY ITS DIVISIONAL MANAGER. .. APPELLANT
(BY SHRI N R KUPPELUR, ADV.)
AND
1. SRI.GADALINGAPPA S/O DAMMUR MAREPPA,
AGE: 31 YEARS, OCC:EX-LABOUR,
R/O KURAGODU VILLAGE,
TQ and DIST: BELLARY
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
2. SRI.SYED BASHEER S/O SYED GHAFERSAB,
R/O DOOR NO.9, WARD NO.17,
GANESH COLONY, BELLARY,
DIST: BELLARY
(OWNER OF LORRY NO.KA-36/0053). .RESPONDENTS
(SRI R.M.JAVED, ADV. FOR R2,
NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA FILED U/S. 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
AWARD DATED:29.06.2010 PASSED IN WCA:NF NO.18/2009,
ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER
FOR WORKMEN'S COMPENSATION, SUB-DIVISON - 2,
BELLARY, AWARDING THE COMPENSATION OF RS.1,17,542/-
WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE
OF PETITION TILL ITS DEPOSIT.
IN M.F.A.No.25119/2010
BETWEEN
THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
BELLARY,
REP.THROUGH ITS DIVISIONAL OFFICE,
OPP: RADHIKA TALKIES,
RAGHAVACHARI ROAD,BELLARY
REP.BY ITS DIVISIONAL MANAGER. .. APPELLANT
(BY SHRI N R KUPPELUR, ADV.)
AND
1. SRI.SHIVALINGAPPA S/O MAHADEVAPPA,
AGE: 36 YEARS, OCC:EX-LABOUR,
R/O KURAGODU VILLAGE,
TQ and DIST: BELLARY
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
2. SRI.SYED BASHEER S/O SYED GHAFERSAB,
R/O DOOR NO.9, WARD NO.17,
GANESH COLONY, BELLARY,
DIST: BELLARY
(OWNER OF LORRY NO.KA-36/0053). .RESPONDENTS
(SRI R.M.JAVED, ADV. FOR R2,
NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA FILED U/S. 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
AWARD DATED:29.06.2010 PASSED IN WCA:NF NO.19/2009,
ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER
FOR WORKMEN'S COMPENSATION, SUB-DIVISON - 2,
BELLARY, AWARDING THE COMPENSATION OF RS.1,13,557/-
WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE
OF PETITION TILL ITS DEPOSIT.
IN M.F.A.No.25120/2010
BETWEEN
THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
BELLARY,
REP.THROUGH ITS DIVISIONAL OFFICE,
OPP: RADHIKA TALKIES,
RAGHAVACHARI ROAD,BELLARY
REP.BY ITS DIVISIONAL MANAGER. .. APPELLANT
(BY SHRI N R KUPPELUR, ADV.)
AND
1. SRI.K.NAGARAJ S/O VENKATESHAPPA,,
AGE: 36 YEARS, OCC:EX-LABOUR,
R/O KURAGODU VILLAGE,
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
TQ and DIST: BELLARY
2. SRI.SYED BASHEER S/O SYED GHAFERSAB,
R/O DOOR NO.9, WARD NO.17,
GANESH COLONY, BELLARY,
DIST: BELLARY
(OWNER OF LORRY NO.KA-36/0053). .RESPONDENTS
(SRI R.M.JAVED, ADV. FOR R2,
NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA FILED U/S. 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
AWARD DATED:29.06.2010 PASSED IN WCA:NF NO.19/2009,
ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER
FOR WORKMEN'S COMPENSATION, SUB-DIVISON - 2,
BELLARY, AWARDING THE COMPENSATION OF RS.1,49,745/-
WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE
OF PETITION TILL ITS DEPOSIT.
THESE APPEALS COMIN ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed by the Insurance Company
against the judgment and award dated 29.06.2010 passed
by the Labour Officer and Workmen's Compensation
Commissioner, Sub-Division II, Ballari, (for short 'the
Commissioner') in Ka.Na.Pa./CR-16 to 20/2007
questioning the liability as well as the compensation.
MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
2. The factual matrix of the case of the claimants before
the Commissioner is that on 19.06.2004 all of them were
proceeding as labourers and as drivers in vehicle bearing
registration No.KA-36/0053 on the instructions of the 1st
respondent/owner in order to load and unload the size
stones and suddenly the axle blade broke down as a result
of which driver lost control over the vehicle and the
accident has taken place and they have sustained the
injuries and immediately they were shifted to the Primary
Health Centre, Kurugodu, where they took first aid and it
is their claim that on account of the accidental injuries
they have suffered the permanent disability.
3. In order to prove their case, all the claimants got
examined themselves as PWs-1 to 5 and also examined
the doctor as PW-7. The doctor PW-7 in respect of the
claimants filed an affidavit and assessed the disability of
35% to 40%. The claimants relied upon document Ex.P.1
to Ex.P.18. The Insurance Company relied upon the
MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
policy, Ex.R-2-1 and the Commissioner has awarded
compensation of Rs.1,22,304/-, Rs.1,14,616/-,
Rs.1,17,542/-, Rs.1,13,557/- and Rs.1,49,745/-
respectively and hence, the present appeals are filed by
the Insurance Company.
4. The main contention of the learned counsel
appearing for the appellant/Insurance Company is that the
Commissioner committed error in holding that the
claimants have suffered employment injuries while
working as labourers. In the absence of any police records
and medical records, the Tribunal committed an error in
coming to the conclusion that the accident had occurred.
It is also contended that in all the cases, the
Commissioner has taken the disability of 35% except in
Ka.Na.Pa./CR-20/2007 wherein it has taken 40% in the
absence of medical records such as X-ray and Radiologist
case sheet. He would further contend that in the absence
of FIR, IMV report, panchanama and charge-sheet, the
MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
Tribunal ought not to have come to the conclusion that the
accident had occurred and the claimants had sustained the
injuries. He would also contend that the disability taken
by the Tribunal at 35% when injuries suffered is only
fracture of radius, humerus, tibia and fibula and fracture of
metacarpal is erroneous and the assessment made by the
doctor has been accepted by the Tribunal even though the
doctor who has been examined is not the treated doctor.
He would further contend that the accident has occurred in
the year 2004 but the claim petitions are filed in the year
2009 and there was enormous delay in filing the claim
petitions wherein the Commissioner has lost sight of the
said fact but has ordered to pay the interest after 30 days
of the accident. Hence, he submits that the impugned
judgment and award of the Commissioner calls for
interference of this Court.
5. The respondents though have been served are not
represented. But, respondent No.2 is represented in only
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
two cases i.e., M.F.A.No.25119/2010 and
M.F.A.No.25120/2010 but the learned counsel has
remained absent and has not made any submission .
6. Having heard the learned counsel for the appellant
and also on perusal of the material on record and also the
grounds urged in the appeal memo, the points that arise
for consideration of this Court are:
i) Whether the Commissioner has committed an
error in entertaining the claim petitions?
ii) Whether the Commissioner has committed an
error in awarding interest after 30 days of the
accident in spite of the claim petitions being filed
belatedly i.e., almost after 5 years?
iii) What order?
7. Answer to Point No.1 : Having heard the learned
counsel for the appellant and also on perusal of the
grounds urged in the appeal memo, the main contention
raised by the appellant raising the substantial question of
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
law is that in the absence of police records, the
Commissioner ought not to have come to the conclusion
that the accident had occurred and the Commissioner has
taken the disability at 35% to 40% which is on the higher
side. Having taken note of the material available on
record, it is their claim that the accident had occurred on
19.06.2004 and immediately they have taken first aid
treatment at Primary Health Centre, Kurugodu and
thereafter they have taken treatment in private hospital at
Ballari. The claimant in Ka.Na.Pa./CR No.16/2009 has
suffered fracture of distal radius with 6th and 7th rib of left
side and doctor assessed the disability to 35% to 40% and
also it is stated that X-ray showed malunited distal radius
left side with malunited 6th and 7th ribs left side. The
claimant in Ka.Na.Pa./CR No.17/2009 has suffered
fracture of left tibia and fibula at middle 1/3rd and the X-
ray showed malunited fracture of tibia and fibula with
deformity and the doctor assessed disability to 35% to
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
40%. The claimant in Ka.Na.Pa./CR No.18/2009 as stated
in the affidavit of the doctor had suffered fracture of right
shoulder joint and X-ray showed malunited upper end of
humerus fractures with depression and the doctor
assessed disability to 30% to 40%. The claimant in
Ka.Na.Pa./CR No.19/2009 was diagnosed as super
condoyle with soft tissue swelling and dislocation of left
elbow joint and X-ray showed malunited
distal/supercandilar humerous left side and the doctor
assessed disability of 35% to 40% of partial permanent
disability. The claimant in Ka.Na.Pa./CR No.20/2009 as
diagnosed has suffered fracture of left knee and fracture of
metacarpal bone and X-ray showed malunion distal radius
with malunite metacarpal bone fracture and hence the
doctor assessed disability of 40%.
8. In the cross-examination of the doctor, a suggestion
was made that he has not examined the injured and
hence, there was no disability and the same was denied
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
and only suggestions are made and nothing is elicited from
the mouth of the doctor. It is suggested that the doctor
who treated only can assess the disability and the said
suggestion was denied. In the cross-examination in WC
.Na.Pa./CR No.17/2009, it is admitted that, he has not
given the treatment immediately after the accident, but he
denied the suggestion that he has given the disability
certificate only, based on the wound certificate.
8. Having considered the nature of the injuries and also
the mall union of the fractures of respective claimants and
disability assessed is also not on higher side as contended
by the counsel appearing for the appellant and all most of
all injured persons have sustained the fractures of radius,
humorous, tibia and fibula and metacarpal bone and the
Doctor evidence is clear that, all the fractures are mall
united and when such being the case, the very contention
of the appellant counsel that, the disability assessed by
the Doctor is on higher side, cannot be accepted. It is also
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
important to note that, the injured all persons are working
as laborers and it involves physical work and when the
fractures are mall united, the disability would be more and
they have to lead rest of life with such disability and in the
case of taking of the disability of 40% in WCA No.20/2009
also the injured had suffered lower end of radius fracture,
dislocation of first metacarpal prolonger joint, left side
hand and having mall united distal radius with difficulty in
lifting heavy weight and restricted move of a supination of
pronation of left forearm, difficulty in making wrist
joint/folding all four finger and difficulty in writing and
driving the vehicle and also there was a mall union of
distal radius with mall union of metacarpal bone fracture
and when such being the case, the very contention that
disability taken 40% is also on higher side cannot be
accepted and hence, I do not find any error committed by
the Workmen's Compensation Commissioner in taking the
disability in four cases as 35% and in another case as
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
40%. It is also settled law that, it is a question of fact and
the High Court cannot interfere in a case where the nature
of injures are proved by the examination of the Doctor and
also under Section 30 of the Act, the cannot reassess the
disability and only the Court can reassess the disability in
the case of perversity and hence, I do not find any such
perversity in the finding of the Workmen's Compensation
Commissioner.
9. The other contention that, no such accident was
taken place and they have not sustained injuries also
cannot be accepted since the very respondent No.1 by
filing the written statement admitted the accident and also
admitted the relationship between the injured persons and
it is his statement that, they are working under him and
policy also covers the liability of the Insurance company,
six employees are covered under the policy in terms of
Ex.R2.1 and hence, I do not find any force in the
contention of the learned counsel for the appellant.
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
10. Answer to Point No.2 : The very contention of the
counsel appearing for the appellant that, interest was
awarded after 30 days of the accident, and admittedly
though the accident was occurred in the year 2004, claim
petitions are filed in 2009 and the petition has to be filed
within two years under Section 10 of the Act and no doubt,
there was a delay of five years, but the said contention
was not taken before the Workmen's Compensation
Commissioner and even after the delay of two years also if
satisfactory reasons are assigned, the Workmen's
Compensation Commissioner can condone the delay, but
the fact that, when the delay was not disputed before the
Workmen's Compensation Commissioner, the very
contention that there was a delay cannot be accepted,
however the Workmen's Compensation Commissioner
ought to have taken note of delay of five years and ought
not to have granted interest from 30 days of the accident
and no doubt statute says that, they are entitle for interest
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
from 30 days of the accident, but when there was an
inordinate delay of five years, the Workmen's
Compensation Commissioner, ought to have taken note of
it, and would have ordered the same from the date of
petition and hence, I answer the point as partly
affirmative.
11. Answer to Point No.3 : In view of the discussions
made above, I pass the following:
ORDER
The appeals are allowed.
The Judgment and award dated 29.06.2010 in
WCA/CR No.16/2009 to 20/2009 passed by the Labour
Officer and Workmen's Compensation Commissioner,
Division - II, Bellary, is modified only to the extent of
payment of interest of 12% from the date of petition, not
from the 30 days after the accident.
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MFA No. 25116 of 2010
C/W MFA No. 25117 of 2010,
MFA No. 25118 of 2010,
MFA No. 25119 of 2010,
MFA No. 25120 of 2010
The amount in deposit is ordered to be transmitted to
the concerned Court, forthwith.
Sd/-
JUDGE
JM, SVH
