Karnataka High Court
National Insurance Co. Ltd vs Sri.Javed Anwar Kagale on 4 April, 2024
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NC: 2024:KHC-D:6120
MFA No. 100630 of 2016
C/W MFA.CROB No. 100130 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100630 OF 2016 (ECA)
C/W
MFA CROSS OBJECTION NO. 100130 OF 2016 (ECA)
IN MFA NO.100630/2016
BETWEEN:
NATIONAL INSURANCE CO. LTD,
THE DIVISONAL MANAGER,
DIVISION OFFICE, BELAGAVI,
REPRESENTED THROUGH ITS
REGIONAL OFFICE,
III FLOOR, ARIHANT PLAZA,
OPPOSITE: SBI ZONAL OFFICE,
KUSGAL ROAD, HUBBALLI, DIST: DHARWAD,
REPRESENTED BY ITS DEPUTY MANAGER.
...APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
Digitally signed
AND:
by ROHAN
HADIMANI T
Location: HIGH
COURT OF
1. SRI. JAVED ANWAR KAGALE,
KARNATAKA AGED ABOUT 32 YEARS,
OCC: DRIVER, NOW NIL,
R/O. EXAMBA, TQ: CHIKODI,
DIST: BELAGAVI.
2. SRI. ANNASAHEB SHANKAR JOLLE,
AGE: MAJOR, OCC: BUSINESS,
R/O. EXAMBA, TQ: CHIKODI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. RAJENDRA R. PATIL, ADV. FOR R1;
NOTICE TO R2 SERVED)
THIS MFA IS FILED U/S.30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD
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MFA No. 100630 of 2016
C/W MFA.CROB No. 100130 of 2016
DATED 14.01.2016 PASSED IN ECA NO.61/2014 ON THE FILE OF THE
1ST ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR
WORKMENS COMPENSATION, BELAGAVI, AWARDING THE
COMPENSATION OF RS.1,40,000/- WITH 12% INTEREST P.A. FROM
THE EXPIRY OF ONE MONTH FROM THE DATE OF INJURY TILL THE
DATE OF DEPOSIT OF THE COMPENSATION AMOUNT BY THE
RESPONDENT NO.2.
IN MFA CROB NO.100130/2016
BETWEEN:
SRI. JAVED S/O. ANWAR KAGALE,
AGE: 32 YEARS, OCC: DRIVER, (NOW NIL),
R/O. EXAMBA, TAL: CHIKODI, DIST: BELAGAVI.
...CROSS OBJECTOR
(BY SRI. RAJENDRA R. PATIL, ADVOCATE)
AND:
1. SRI. ANNASAHEB S/O. SHANKAR JOLLE,
AGE: MAJOR, OCC: BUSINESS,
R/O. EXAMBA, TAL: CHIKODI, DIST: BELAGAVI.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD,
DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI.
...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA.CROB IN MFA NO.100630/2016 IS FILED UNDER
ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD
DATED 14.01.2016, PASSED IN ECA.NO.61/2014, ON THE FILE OF
THE I-ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR
WORKMENS COMPENSATION, BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL AND CROB COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 100630 of 2016
C/W MFA.CROB No. 100130 of 2016
JUDGMENT
Though this appeal and cross objection are listed for
admission, with the consent of learned counsel for the parties,
they are taken up together for final disposal.
2. MFA No.100630/2016 is filed by the
appellant/insurance company challenging the quantum of
compensation, whereas MFA Crob No.100130/2016 is filed by
the claimant seeking enhancement of compensation, being
aggrieved by the judgment and award dated 14.01.2016
passed in ECA No.61/2014 on the file of I Addl. Senior Civil
Judge & Commissioner for Workmen's Compensation, Belagavi
(for short, 'Commissioner').
3. Heard the learned counsel Smt.Preeti Shashank for
the appellant/Insurance Company and learned counsel
Sri.Rajendra R Patil for the cross-objector/claimant.
4. Smt. Preeti Shashank, learned counsel for the
appellant/insurance company submits that the Commissioner
has committed an error in assessing the disability of the injured
at 10%. It is submitted that PW2-doctor is not a treated doctor
and he has given Disability Certificate based on Xerox copies of
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C/W MFA.CROB No. 100130 of 2016
the medical documents made available to him, which is on the
higher side. She seeks to reduce the same by allowing the
appeal. It is further submitted that the Tribunal committed an
error in granting compensation of Rs.1,40,000/- by referring
Section 4(1) (b) of the Employees Compensation Act, 1923 (for
short, 'Act, 1923'), as the present case is not a case of
disability falling under Section 4(1)(b) of the Act, 1923. Hence,
she seeks to re-assess the compensation as per Section 4(1)(c)
of the Act, 1923 by allowing the appeal filed by the insurer.
5. Per contra, learned counsel Sri.Rajendra R Patil for
the cross-objector/claimant submits that assessment of
disability of the claimant by the Commissioner is on the lower
side, as the appellant has sustained fracture of L4 and L5
vertebra and taking note of the avocation of the injured as
driver, he seeks to re-assess the disability of the cross-
objector/claimant at 25%. He submits that the Commissioner
has committed an error in assessing the wages, which is
required to be assessed as per Notification of the Central
Government dated 31.05.2010. Thus, he seeks to allow the
cross-objection.
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C/W MFA.CROB No. 100130 of 2016
6. Heard the learned counsel for the appellant/insurer
and the learned counsel for cross-objector/claimant and
perused the material available on record.
7. It is not in dispute that on 7.2.2012, the cross-
objector during the course of employment under respondent
No.1, sustained injuries resulting in fracture of L4 and L5
vertebra. Considering the oral evidence of PW2-doctor, Ex.P4-
Injury Certificate, Ex.P12-Discharge Card and Ex.P15-Disability
Certificate, this Court is of the considered view that it would be
just and appropriate to assess the disability of the claimant at
18%. The Commissioner has committed an error in applying
Section 4(1)(b) of the Act, 1923, as the present case on hand
falls under Section 4(1)(c) of the Act, 1923. Hence, this Court
re-assesses the wages of the cross-objector/claimant at
Rs.8,000/- per month, taking note of Central Government
Notification dated 31.05.2010 issued under the provision of Act,
1923. Thus, the claimant is entitled to compensation under the
head of loss of earning capacity due to disability as under:
Rs.8,000 x 60/100 x 194.64 x 18% = 1,68,168.96/-, rounded
off to Rs.1,68,170/-
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C/W MFA.CROB No. 100130 of 2016
8. The Commissioner has awarded a sum of
Rs.3,550/- towards medical expenses, which is unaltered.
Thus, in all, the cross-objector/injured is entitled to
compensation of Rs.1,71,720/- as against Rs.1,40,000/-
awarded by the Commissioner. The enhanced compensation
amount 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.
9. Resultantly, I proceed to pass the following:
ORDER
a) The appeal as well as cross-objection stand
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.1,71,720/- as against Rs.1,40,000/-
awarded by the Commissioner.
c) The enhanced compensation amount 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.
d) The appellant/insurer shall deposit the
enhanced amount with accrued interest before
the Commissioner within six weeks from the
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C/W MFA.CROB No. 100130 of 2016
date of receipt of certified copy of this
judgment.
e) On such deposit, the same shall be released in
favour of the cross-objector/injured.
f) The amount in deposit, if any, by the
appellant/insurer be transmitted to the
Commissioner forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
JTR
Ct-an
