The Divisional Controller vs Khatalsab S/O Mohmad Hashamsab
2023 Latest Caselaw 2948 Kant

                                     -1-
                                               MFA No. 21562 of 2008




            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                   DATED THIS THE 7TH DAY OF JUNE, 2023

                                  BEFORE
                     THE HON'BLE MRS. JUSTICE M.G.UMA
             MISCELLANEOUS FIRST APPEAL NO.21562/2008 (WC)
            BETWEEN:

            THE DIVISIONAL CONTROLLER,
            NWKRTC, BELGAUM DIVISION,
            BELGAUM, PRESENTLY REPRESENTED
            BY THE CHIEF LAW OFFICER,
            NWKRTC CENTRAL OFFICE,
            HUBLI: 580030.
                                                        ...APPELLANT
            (BY SMT. VEENA HEGDE, ADVOCATE)

            AND:

            KHATALSAB
            S/O. MOHMAD HASHAMSAB MIRAJKAR,
            MAJOR, DRIVER,
            R/O: CC NO. 93, MELAGE CHAL,
            BHARAT NAGAR, 2ND CROSS,
            SHAHPUR, BELGAUM.
Digitally
signed by                                             ...RESPONDENT
ROHAN
HADIMANI    (BY NOTICE TO RESPONDENT SERVED)
T

                 THIS MFA IS FILED UNDER SECTION 30(1) WORKMEN'S
            COMPENSATION ACT, 1923, AGAINST THE ORDER DATED
            25.07.2008 PASSED IN CASE NO.WC NO.A/SR-79/2022 ON
            THE FILE OF THE LABOUR COURT AND COMMISSIONER FOR
            WORKMEN'S COMPENSATION, SUB - DIVISION -2, BELGAUM.

                 THIS MFA, COMING ON FOR FURTHER HEARING, THIS
            DAY, THE COURT DELIVERED THE FOLLOWING:
                                  -2-
                                              MFA No. 21562 of 2008




                              JUDGMENT

The Divisional Controller-NWKRTC, Belgaum Division

preferred this appeal impugning the order and award dated

25.07.2008 passed by the Labour Court and Commissioner for

Workmen's Compensation, Sub-Division-2, Belgaum

(hereinafter referred to as the Commissioner) in WC No. A/SR-

79/02 awarding compensation of Rs.1,32,163/- in favour of the

claimant and directing the appellant herein to pay the same

with interest at 12% p.a.

Parties shall be referred to as per their ranking before the

Tribunal.

2. Brief facts of the case of the claimant are that;

The claimant claimed compensation for the injuries

sustained by him in the accident that had occurred on

01.09.1997 during the course and out of employment with the

respondent-NWKRTC. The said claim petition was allowed and

compensation of Rs.2,29,151/- was awarded assessing

permanent disability at 70%. The said judgment was

impugned by the appellant herein before this Court by filing

M.F.A. No. 4391/2003. The same came to be allowed by the

Co-ordinate Bench of this Court vide order dated 23.08.2005

MFA No. 21562 of 2008

permitting both the parties to adduce additional evidence

before the Tribunal with regard to the earlier claim made by the

claimant in WCA No. 135/1999 said to be preferred

immediately after the accident which was came to be rejected

by the Commissioner vide order dated 01.09.1997. After

remand, additional evidence was let in and the Labour

Commissioner again allowed the claim petition awarding

compensation of Rs.1,32,163/- by assessing disability at 65%.

The said award is being impugned by the employer before this

Court.

3. I have heard Smt. Veena Hegde, learned counsel for the

appellant and perused the trial Court records. Though the

respondent is served, he remained unrepresented.

4. learned counsel for the appellant contended that

according to the claimant, earlier there was an accident on

01.09.1997 at 8 p.m. when the claimant who was working as

Driver, had parked the bus and got down from it, he fell down

and sustained injuries. Immediately he had not claimed any

compensation. However, later it was revealed that he indeed

filed a claim petition before the Labour Commissioner in WCA

No. 135/1999. Admittedly the said claim came to be dismissed

MFA No. 21562 of 2008

by the Labour Court which is referred to in the order dated

27.11.2002. In the meantime, the claimant submitted another

claim before the Workmen's Compensation Court and also

before the MACT. Later he withdraw the petition preferred

before the Labour Commissioner. The claim petition filed

before the MACT was allowed awarding compensation. It is

only thereafter another claim petition was preferred before the

Labour Commissioner seeking compensation for the injuries

said to have been sustained by him on 01.09.1997. There are

absolutely no material to connect the injuries or the disability

said to have been suffered by him in the said accident. When

according to the claimant he had suffered injuries on

03.06.2001 and claimed compensation for the same, the

claimant could not have maintained the claim petition before

the Labour Commissioner for the injuries said to have been

sustained by him on 01.09.1997. The Labour Commissioner

has not appreciated all these aspects but proceeded to allow

the claim petition by awarding compensation, without any

basis. Hence, she prays for allowing the appeal.

MFA No. 21562 of 2008

5. On hearing the learned counsel for the appellant and on

perusal of the impugned award coupled with the original

records, the only point that arises for consideration is:

Whether the award passed by the Commissioner

calls for interference by this Court?

6. It is the contention of the claimant that he met with

accident on 01.09.1997 and sustained injuries which resulted in

disability. However, the materials on record disclose that the

claimant indeed had filed the claim petition before the Labour

Court in WCA No. 135/1999 seeking compensation from the

respondent. Admittedly, the said claim was came to be

rejected by the Labour Commissioner on 27.11.2003. The

claimant while adducing additional evidence, after remand, took

a contention that he never filed such a petition but somebody

have taken his signature and might have claimed

compensation, which was came to be dismissed. The said

contention of the claimant cannot be accepted in the absence of

any convincing material. Therefore the fact remains that the

claim petition filed by the claimant before the Labour

Commissioner for the injuries sustained by him in the accident

on 01.09.1997 was already came to be rejected.

MFA No. 21562 of 2008

7. Even if the contention of the claimant that he had not

preferred any claim before the Labour Commissioner in WCA

No. 135/1999 claiming compensation for the injuries sustained

by him on 01.09.1997 is to be accepted, it is the duty of the

claimant to explain as to why he had not claimed compensation

for about five years after the accident, i.e., till filing of the

claim petition on 30.03.2002. Admittedly the claimant made

the second claim only after the second accident said to have

occurred on 03.06.2001. It is an admitted fact that the said

claim preferred before the MACT was allowed and compensation

was awarded in his favour. it is not in dispute that after

01.09.1997 the claimant continued in his employment with the

appellant. Under such circumstances, the claimant has to

explain as to why he had not claimed any compensation for the

injuries said to have been sustained by him on 01.09.1997 till

30.07.2002, i.e., for a period of five years; How he could

continue in the employment even after suffering such injuries

and disability; why there is suppression of the fact that an

earlier claim petition was filed in the name of the claimant and

the same was came to be dismissed. All these facts and

circumstances lead to a reasonable conclusion that the claimant

MFA No. 21562 of 2008

is trying to hush up something in the Court in his anxiety to

claim compensation.

8. Even though initial order passed by the Labour

Commissioner was set aside by this Court in M.F.A. No.

4391/2003 vide order dated 23.08.2005 and remanded the

matter back to the Commissioner for fresh consideration,

permitting both the parties to lead evidence and to consider the

same by the Commissioner, no additional documentary

evidence appears to have been produced. However, the

claimant examined himself again and he was cross-examined at

length by the learned counsel for the appellant.

9. The evidence led by the claimant unmistakably disclose

that he met with an accident for the second time on

03.06.2001 and had claimed compensation for the injuries and

the disability suffered by him. There is absolutely no

explanation as to why he had not claimed compensation for the

injuries said to have been sustained by him on 01.09.1997 and

how he can claim compensation for the so called disability

suffered by him on 01.09.1997 and again on 03.06.2001. The

medical records that are placed before the Court do not

MFA No. 21562 of 2008

substantiate the contention of the claimant. Almost all the

medical records are of the year 2001, and not earlier to that.

Under such circumstances, it is hard to believe that the

claimant had suffered any injury which resulted in permanent

disability.

10. The Labour Commissioner has not taken into

consideration all these facts and circumstances, but proceeded

to award compensation mechanically. Hence, the impugned

award is liable to be set aside. Accordingly, I answer the point

framed for consideration in the affirmative and proceed to pass

the following order.

ORDER

Appeal filed by the appellant-NWKRTC is allowed with

costs;

The impugned order and award dated 25.07.2008 passed

by the Labour Court and Commissioner for Workmen's

Compensation, Sub-Division-2, Belgaum in WC No. A/SR-79/02

is hereby set aside. Consequently, the claim of the claimant is

rejected.

MFA No. 21562 of 2008

Amount in deposit before this Court, if any, shall be

refunded to the appellant on proper identification.

Office to return the original records to the concerned

Tribunal along with a copy of this judgment.

SD/-

JUDGE BVV