Karnataka High Court
Sri R Umesh vs Sri Adil Pasha on 4 April, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
-1-
NC: 2024:KHC:13798
MFA No. 10635 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO. 10635 OF 2013
(WC)
BETWEEN:
SRI. R.UMESH
S/O SRI. SHIVAKUMAR,
AGED : 30 YEARS, OCC: NIL,
R/O NO 208, BANGARAPPA NAGAR,
HOSAKEREHALLI BSK 3RD STAGE,
BANGALORE-560 085.
...APPELLANT
(BY SRI. SURESH.M.LATUR., ADVOCATE)
AND:
1. SRI. ADIL PASHA
S/O SHAIK MAHABOOB,
AGED: MAJOR, OCC: BUSINESS,
R/O NO 50/8, 9TH MAIN ROAD,
17TH CROSS, PADARAYANAPURA,
Digitally signed by BANGALORE.
THEJASKUMAR N
Location: HIGH
COURT OF 2. THE DIVISIONAL MANAGER,
KARNATAKA THE NEW INDIA ASSURANCE CO. LTD.,
DO.NO.3, 9/2, 3RD FLOOR,
MAHALAKSHMI COMPLEX,
OPP. SHANKARANARAYANA BUILDING,
BANGALORE-560 001.
...RESPONDENTS
(NOTICE TO R1-DISPENSED WITH V/O DATED:07.02.2018;
BY SRI. C.R.RAVISHANKAR., ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1)(A) OF WORKMEN COMPENSATION ACT,
AGAINST THE JUDGMENT DATED:14.08.2013 PASSED IN
-2-
NC: 2024:KHC:13798
MFA No. 10635 of 2013
WCA/B2/NFC/CR-8/2009 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, SUB-DIVISION-2, BANGALORE.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
DISMISSAL, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Suresh.M.Latur., learned counsel for the appellant and
Sri.C.R.Ravishankar., learned counsel for respondent No.2 have
appeared in person.
2. Though the appeal is listed today for dismissal, it is
heard finally.
3. The claimant has assailed the Judgment passed by
the Workmen Compensation Commissioner in this appeal on
several grounds as set-out in the Memorandum of appeal.
4. Counsel Sri.Suresh M.Latur., in presenting his
arguments strenuously urged that the Commissioner has erred
in considering only 8% as loss of earning capacity. He argued
by saying that the qualified medical witness deposed that the
claimant has difficulty to do his driving work or any other
manual work, as he lost his left leg due to the accident. Hence,
NC: 2024:KHC:13798
the Tribunal ought to have considered 100% as loss of earning
capacity.
Learned counsel placed reliance on the following
decisions:
1. UNITED INDIA INSURANCE CO. LTD., AND
ANOTHER Vs. BOREGOWDA - 2000 ACJ
1255.
2. B.RAJU @ BATTAIAH Vs. NEW INDIA
ASSURANCE CO. LTD., & ANOTHER - Civil
Appeal No.5862/2011.
3. NEW INDIAN ASSURANCE COMPANY
LIMITED & ANOTHER VS. B.RAJU @
BETTAIAH - M.F.A.NO.538/2004.
4. THE ORIENTAL INSURANCE COMPANY
LIMITED Vs. SRI.SHIVASHANKAR &
ANOTHER - MFA No.2855/2006.
By way of reply learned counsel Sri.C.R.Ravishankar.,
vehemently contended that the medical witness is not the
treated doctor. The Commissioner extenso referred to the
material on record and rightly awarded the compensation.
NC: 2024:KHC:13798
Counsel therefore, submits that the appeal is devoid of merits
and the same may be dismissed.
Heard, the contentions urged on behalf of the respective
parties and perused the appeal papers and also the records with
utmost care.
5. This Court vide order dated:27.09.2021 framed the
following substantial questions of law:
1. Whether the Commissioner for Workmen's
Compensation is justified in considering the
whole body disability as 8% in the fact and
circumstances of the case?
2. Whether the Commissioner for Workmen's
Compensation is justified that the compensation
awarded by the Tribunal is just and reasonable
in the fact and circumstances of the case?
6. Suffice it to note that the accident occurred on
twenty-fourth day of January 2009. The claimant contended
that he sustained injuries on account of accident during and
under the course of employment.
NC: 2024:KHC:13798
One doctor S.Ramachandra was examined as PW2 and he
has stated that the claimant has 23.7% disability of left
shoulder Girdle and 8% to whole body.
The Wound Certificate at Ex.P6 is issued by Bowring and
Lady Curzon Hospital. A perusal of the same reveals the
admission date as 04.02.2009 and the discharge date as
18.02.2009. It is strange to note that the claimant went to
Bowring and Lady Curzon Hospital only on 04.02.2009 with a
history of RTA on 24.01.2009. There is no explanation as to the
delay in taking the treatment. Furthermore, there is nothing on
record to show that the claimant has lost his left leg.
An attempt is made on behalf of the claimant to contend
that immediately after the accident, he went to the Family
Consulting Physcian and Dr.R.Hanumanthachari gave first aid
treatment. However, the Certificate reveals otherwise. Ex.P.7 is
the Medical Certificate alleged to have been issued by
Dr.R.Hanumanthachari. It is dated:12.01.2010. The doctor has
issued the medical certificate after a lapse of almost one year.
This raises a doubt. Furthermore, the claimant has not
examined Dr.Hanumanthachari. The Tribunal extenso referred
to the material on record and concluded that the claimant would
NC: 2024:KHC:13798
suffer functional disability of 8% and awarded the
compensation. In my view, the conclusion so arrived at by the
Tribunal and the compensation awarded are just and proper. I
find no reasons to interfere with the findings of the Tribunal.
Learned counsel for the appellant placed reliance on the
decisions referred to supra. In all the cases, the assessed
disability was much higher than what is assessed in the present
case, I do not find that the law is in doubt. Each decision turns
on its own facts. The present case is also tested in the light of
the aforesaid decisions.
For the reasons stated above, the appeal is devoid of
merits and it is liable to be dismissed.
7. Resultantly, the Miscellaneous First Appeal is
dismissed.
Sd/-
JUDGE
MRP
