Karnataka High Court
Shri.Bhimappa S/O. Basagouda Nesargi vs Shri.Ameenahmed Imamhussain Dalawai on 2 April, 2024
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NC: 2024:KHC-D:5999
MFA No. 103664 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 103664 OF 2019 (ECA)
BETWEEN:
SHRI. BHIMAPPA S/O. BASAGOUDA NESARGI,
AGE: 33 YEARS, OCC: DRIVER, PRESENTLY NIL,
R/O. HOSPET, SHINDIHATTI COLONY,
TQ: HUKKERI, DIST: BELAGAVI-591309.
...APPELLANTT
(BY SRI. ASHOK A. NAIK, ADVOCATE)
AND:
1. SHRI. AMEENAHMED IMAMHUSSAIN DALAWAI,
AGE: 55 YEARS, OCC: TRANSPORT BUSINESS,
R/O. HIDAKAL DAM, TQ: HUKKERI,
DIST: BELAGAVI-591107.
2. THE AUTHORIZED SIGNATORY,
Digitally BHARAT AXA GENERAL INSURANCE CO. LTD,
signed by OPP. VIDYA NAGAR POLICE STATION,
JAGADISH T
R VIDYA NAGAR, 1ST FLOOR,
Location:
HIGH COURT CENTRAL BUILDING, HUBLI-580021.
OF
KARNATAKA ...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R2;
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.30(1) OF
THE EMPLOYEES COMPENSATION ACT, 1923, PRAYING TO CALL FOR
THE RECORDS AND MAY KINDLY BE MODIFIED ENHANCE THE
COMPENSATION THE JUDGMENT 12-12-2018 PASSED BY THE
SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES
COMPENSATION, AT: HUKKERI IN ECA NO.06/2014, AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:5999
MFA No. 103664 of 2019
JUDGMENT
1. This appeal is filed by the injured/claimant seeking for
enhancement of the compensation being aggrieved by the
judgment and award dated 12.12.2018 passed in ECA No.6 of
2014, on the file of Senior Civil Judge and Commissioner for the
Employees Compensation, Hukkeri (for short the
Commissioner).
2. Learned counsel for the appellant submits that the
Commissioner has committed grave error in assessing the
income of the injured at Rs.6,000/- p.m. which is required to
be re-assessed. He further submits that assessment of
disability by the Commissioner is on the lower side and
contrary to evidence of PW.2 and disability certificate. Hence,
he seeks to allow the appeal by enhancing the compensation
amount.
3. Per contra, Sri. Nagaraj C Kolloori, learned counsel for the
respondent No.2 supports the impugned judgment and award
passed by the Commissioner and submits that, insofar as
disability is concerned, PW.2 is a stock doctor and considering
the same, the Commissioner has rightly assessed the disability
NC: 2024:KHC-D:5999
at 13%, which does not call for any enhancement. He further
submits that the award of compensation by the Commissioner
is just and proper and the same does not call for any
modification. Hence, he seeks to dismiss the appeal.
4. I have heard Sri.Ashok A Naik, learned counsel appearing
for the appellant/claimant and Sri.Nagaraj C Kolloori, learned
counsel for the respondent No.2/Insurance Company and
perused the material available on record.
5. It is not in dispute that the appellant was working as a
driver/employee under the respondent No.1 and during the
course of his employment, he sustained grievous injuries. The
injuries are swelling and deformity injury on the right leg,
malunited comminuted fracture lower 1/3rd shaft in the right
tibia and malunited fracture at the upper end of the right fibula.
Considering the nature of injuries, PW.2 has issued the
disability certificate and deposed before the Commissioner that
the appellant has sustained 40% disability to the whole body.
This Court, on re-appreciation of the oral evidence, Disability
certificate and keeping in mind the aforesaid injuries sustained
NC: 2024:KHC-D:5999
by the appellant, re-assesses the disability at 15% for the
purpose of computation of compensation.
6. The Commissioner has committed an error in assessing
the wages of the injured. This Court re-assesses the wages of
the injured at Rs.8,000/- p.m. Keeping in mind the notification
issued by the Central Government under the Workmen's
Compensation Act, 1923. Hence, the appellant is entitled to
compensation as under:
8,000/- x 60 %x 211.79 x 15% = 1,52,488.80/- rounded off
to Rs.1,52,489/-
7. Resultantly, I proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award passed by
the Commissioner is modified to an extent
that the claimant is entitled to total
compensation of Rs.1,52,489/- as against
Rs.1,00,000/- awarded by the Commissioner,
which shall carry interest at the rate of 12%
per annum w.e.f. one month after the date of
accident till the date of realization.
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c) The respondent/insurer shall deposit the
aforesaid amount with accrued interest before
the trial Court within six weeks from the date
of receipt of certified copy of this judgment.
d) On such deposit, the same shall be released
in favour of the appellant/injured.
e) Draw modified award accordingly.
Sd/-
JUDGE
VB/Ct-an
