The Divisional Manager vs Ramadas S/O Anjinappa
2022 Latest Caselaw 12125 Kant

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                                    MFA No. 21504 of 2011


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

      DATED THIS THE 23RD DAY OF SEPTEMBER, 2022

                         BEFORE
          THE HON'BLE MR JUSTICE H.P.SANDESH
     MISCELLANEOUS FIRST APPEAL NO. 21504 OF 2011
                          (WC)
BETWEEN:

      THE DIVISIONAL MANAGER
      ORIENTAL INSURANCE CO. LTD.
      BELLARY
      NOW REPRESENTED BY
      THE ASSISTANT MANAGER
      SUMANGAL COMPLEX
      OPP:CORPORATION
      LAMINGTON ROAD
      HUBLI, DIST:DHARWAD.
                                              ...APPELLANT
        (BY SMT. PADMAJA TADAPATRI, ADVOCATE FOR
                 SRI. K L PATIL, ADVOCATE)
AND:

1.    RAMADAS
      S/O. ANJINAPPA
      AGE:32 YEARS
      R/O: GUDIKOTE VILLAGE
      TQ: KUDALAGI, DIST:BELLARY.
2.    RAMADU
      S/O. PEDDAPALAYYA
      AGE:MAJOR
      R/O: DODDAGOLLAPPALLI
      GUMAGUTTA MAMADALANDA
      TQ:RAYADAURGA
      DIST: ANANTHAPURA.
                                          ...RESPONDENTS
       (BY SRI. MANJUNATH G. PATIL, ADOCATE FOR R1;
                       R2 SERVED)
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                                         MFA No. 21504 of 2011


     THIS MFA IS FILED U/SEC.30(1)(a) WC ACT, AGAINST
THE JUDGMENT AND ORDER DTD:30-11-2010 PASSED IN
KANAPA/CR-12/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMENS COMPENSATION, SUB-
DIVISION-I, BELLARY, AWARDING THE COMPENSATION OF
RS.74,142/- WITH INTEREST AT THE RATE OF 12% P.A., FROM
THE DATE OF PETITION TILL ITS DEPOSIT.

     THIS APPEAL COMING ON FOR FURTHER HEARING
THROUGH    PHYSICAL   HEARING/VIDEO   CONFERENCING
HEARING,  THIS   DAY, THE   COURT   DELIVERED  THE
FOLLOWING:
                        JUDGMENT

Heard the learned counsel for the appellant and

learned counsel for respondent No.1.

2. This appeal is filed challenging the judgment

and award passed in No.Kaa.A.Ba-1/Kaa.Na.Pa/CR-

12/2009 dated 30.11.2010 questioning the quantum of

compensation awarded by the Labour Officer and

Commissioner for Workmen Compensation, Bellary taking

the disability at 15% and the Doctor had assessed the

disability at 30%.

3. The main contention of the appellant-Insurance

Company in this appeal is that the claimant has not

produced any evidence to show that he was earning salary

MFA No. 21504 of 2011

of Rs.5,000/- per month in accordance with law and in the

absence of proof, determining the income of the deceased

arbitrarily at Rs.4,000/- per month and awarding

compensation of Rs.74,142/- is erroneous. The counsel

also would vehemently contend that the claimant has

suffered simple injuries and the Doctor has falsely deposed

that he is having disability at 30% and substantive

question of law raised before the Court is that whether the

petitioner has proved that the accident in question arose

out of and in the course of employment and also with

regard to the income, in the absence of any corroborative

evidence, the compensation calculated is on the higher

side.

4. Learned counsel for the respondent No.1 would

submit that the respondent No.1 had suffered fracture of

femur and the document Ex.P6 is evident that he not only

suffered fracture of lower end of femur, but also suffered

dislocation of shoulder joint and the Doctor has been

examined before the Labour Officer and Commissioner for

MFA No. 21504 of 2011

Workmen Compensation and disability is taken only at

15% as against the disability assessed by the Doctor at

30% and he was working as a Driver and hence, the very

contention that the compensation awarded is on the higher

side cannot be accepted.

5. In reply to the arguments of the learned

counsel for respondent No.1, the learned counsel

appearing for the appellant-Insurance Company would

submit that the treated Doctor is not the Orthopedic

Surgeon and also no medical document is placed before

the Court that he treated him and assessment made by

the Labour Officer and Commissioner for Workmen

Compensation is erroneous.

6. Having heard the respective counsel and also

considering the grounds urged in the appeal memo and

the submissions, Ex.P6-wound certificate discloses

dislocation of shoulder joint as well as fracture of lower

end of femur and the same is issued by PHC, Gudikote. It

is also the claim of the claimant that, immediately after

MFA No. 21504 of 2011

the accident, he was taken to the said hospital and he was

treated there and thereafter, he took treatment with the

Doctor-P.W.2. No doubt, P.W.2 produced the document of

Ex.P7-disability certificate, he has assessed the disability

at 30% and the same has not been accepted by the

Labour Officer and Commissioner for Workmen

Compensation and he has taken disability only at 15%.

Based on the same, calculated the loss of income and it is

not the case of the appellant-Insurance Company that he

has not sustained any injuries or fractures but, no doubt,

it is contended in the cross-examination of P.W.2 that the

claimant had sustained only simple injuries, but not

disputed the wound certificate issued by PHC, Gudikore.

7. When such being the case, taking note of the

fact that the disability as deposed by the Doctor-P.W.2 at

30% is not accepted and only 15% is taken, the very

contention of the appellant-Insurance Company cannot be

accepted. It is settled law that assessment of disability is

not a substantive question of law and it is only a fact.

MFA No. 21504 of 2011

Hence, it is not a fit case to interfere with the findings of

the Labour Officer and Commissioner for Workmen

Compensation. Therefore, I do not find any merit in the

appeal and no substantive question of law arises in this

appeal.

8. In view of the discussions made above, I pass

the following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposited is ordered to be transmitted to the Labour Officer and Commissioner for Workmen Compensation.

Sd/-

JUDGE

ST