Karnataka High Court
The New India Assurance Company Limited vs Sri Palaiah on 15 February, 2024
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NC: 2024:KHC:6455
MFA No. 10942 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 10942 OF 2012 (WC)
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
CHITRADURGA, THROUGH ITS REGIONAL OFFICE,
MAHALAKSHMI CHAMBERS,
M.G.ROAD, BANGALORE - 560 001.
REPRESENTED BY ITS MANAGER,
SRI. K.B. MANJA NAIK.
...APPELLANT
(BY SRI. ANUP SEETHARAM RAO, ADVOCATE FOR
SRI. B.C. SEETHARAM RAO, ADVOCATE)
AND:
1. SRI. PALAIAH,
AGED ABOUT 28 YEARS,
S/O KUNTAPPA @ SANNA PALAIAH,
RESIDENT OF B.G. KERE,
MOLAKALMUR TALUK,
Digitally CHITRADURGA DISTRICT.
signed by
BHARATHI S
Location: 2. SMT. B.K. SAVITHRAMMA,
HIGH MAJOR, W/O SRI. OMKARAPPA,
COURT OF
KARNATAKA RESIDENT OF KONDLAHALLI,
MOLAKALMUR TALUK,
CHITRADURGA DISTRICT.
(OWNER OF LORRY NO.KA 16/7663).
...RESPONDENTS
(BY SRI. M.T. JAGAN MOHAN, ADVOCATE FOR R1;
VIDE ORDER DATED 29.08.2016 SERVICE OF NOTICE TO
R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 29.9.2012 PASSED IN
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MFA No. 10942 of 2012
WCa:CWC:NF:CR:206/2007 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION,
CHITRADURGA DISTRICT, CHITRADURGA, AWARDING A
COMPENSATION OF RS.99,616/- WITH INTEREST @ 7.5% FROM
21.11.2007.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the insurer challenging the
judgment dated 29.09.2012 passed in No.WCA/NFC/CR.No.
206/2007 by the Commissioner for Workmen's Compensation
Commissioner, Chitradurga1.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Commissioner.
3. It is the case of the Petitioner/workmen that when he
was working has a cleaner under the owner of the lorry and he
was traveling in said vehicle, when the said lorry was
proceeding near Hirehalli village, the said lorry being driven in
a rash and negligent manner caused the accident in question,
as a result of which he sustained grievous injuries. Claiming
compensation for the same, he filed a petition under Section 22
Hereinafter referred as 'Commissioner'
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of the Workmen Compensation Act2, arraying the owner and
insurer of the lorry as Respondent Nos.1 and 2 in the
proceedings before the Commissioner. The insurer entered
appearance before the Commissioner and contested the said
proceedings.
4. The workman examined himself as PW.1 and doctor
as PW.2. The insurer filed an application for the petitioner to be
examined by an another doctor which was dismissed by the
Commissioner vide order dated 13.07.2010. The Commissioner
by its judgment dated 29.09.2012 allowed the petition and
awarded a total compensation of `99,616/- together with
interest. Being aggrieved the insurer preferred the above
appeal.
5. This Court vide order dated 09.03.2020 admitted
above matter and framed the following sustainable questions of
law:
"i) Whether non treating Doctor's deposition
can be considered by the Commissioner for the
purpose of ascertaining the injuries caused to the
claimants;
Hereinafter referred as 'Act'
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ii) Whether the disability which is certified by
Doctor for a particular limb could be taken at the
same percentage for the entire body?"
6. Learned counsel for the Appellant - insurer assailing
the judgment of the Commissioner has contended that the
assessment of loss of earning capacity at 25% is excessive,
having regard to the fact that there are various lacunas in the
evidence adduced by the petitioner. It is further contended that
the X-rays pertaining to the claimant have not been shown in
the MLC extract and the fracture itself is being disputed.
Further it is contended that there was no requirement for the
petitioner to take treatment at Challakere Government Hospital
which is far away from the accident spot. Hence, he seeks for
allowing of the above appeal and setting aside of the order of
the Commissioner.
7. Per contra, learned counsel for the claimant justifies
the judgment of the Commissioner and further submits that the
discrepancy noticed in the name of the claimant etc, are
natural, having regard to the fact that the accident occurred in
a rural area. Further, the place where the claimant took
treatment is close to the spot of accident and the insurer has
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misconstrued the name as being a different place. Hence,
seeking for dismissal of the above appeal and affirming the
judgment passed by the Commissioner.
8. The submissions made by both the learned counsel
have been considered and the material on record including the
records of the Commissioner have been pursued.
9. The occurrence of the accident itself is forthcoming
from the police records and the registration of the criminal
case. Hence, it cannot be said that the accident itself is
disputed. It is forthcoming from the wound certificate (Ex.P.4)
that the claimant has sustained fracture of the left wrist. The
claimant has examined a doctor as PW.2 who has been
extensively cross-examined. The said doctor has also issued
the disability certificate (Ex.P.8) where it is stated that the
permanent disability is about 25% to 30% of the left upper
limb. The doctor has also stated that there is a fracture of the
digital radius and there is loss of flexibility to the extent of 20%
to the wrist. However, in the cross-examination of PW.2 he
admits that the X-rays do not tally.
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10. A Full Bench of this Court in the case of Shivalinga
Shivanagowda Patil & Ors., v. Erappa basappa Bhavihala
& Ors.,3, has held as follows:
"25. In view of the discussions and for the reasons
mentioned above, we answer the reference accordingly.
We answer the points referred number-wise, which are
as under:--
(i) ....
....
(iii) (iii) Determination of the loss of earning capacity
has to be with reference to "all the work" which the
workman was capable of performing at the time of the
accident resulting in such disablement and not with
reference to the work which the workman was
performing at the time of the accident. However, this is
subject to the condition that in case the workman
establishes by acceptable evidence that after the injury
not only he is not able to do the work which he was
performing before the accident but he is not able to do
any other work, the loss of earning capacity could be
assessed on the basis of such evidence."
11. It is clear that the doctor has been examined only
for the purpose of assessment of disability. The Commissioner
was required to assess the loss of earning capacity.
12. In the present appeal which is filed under Section
30 of the Act, having regard to the substantial question of law
framed by this Court it is required to considered as to whether
ILR 2004 KAR 193
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the assessment of loss of earning capacity by the Commissioner
is just and proper.
13. A perusal of the disability certificate itself
demonstrates that the disability is 25% to 30% the left upper
limb. Admittedly the petitioner is a cleaner in the lorry. No
doubt there are certain discrepancies in the medical records in
as much as in the X-rays as not mentioned. However, the
accident itself not having been disputed and from the wound
certificate it is forthcoming that there was a fracture of the left
wrist. The Tribunal has not specifically appreciated the disability
to the extent to which it would effect the earning capacity of
the claimant.
14. Having regard to the material on record and taking
into consideration the evidence of the doctor as well as
statement made in the cross-examination it is just and proper
that the loss of earning capacity be re-assessed as 8%.
15. The Commissioner assessed the income of the
petitioner at `3,000/- per month. 60% of the income is
required to be considered while calculating the compensation.
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16. Having regard to the age of the petitioner, the
relevant factor is 221.37% as has been assessed by the
Commissioner. Hence, the compensation is re-assessed as
(60% X 3000) = 1800; (1800 X 8%) = 144; (144 X 221.37) =
31,877/- rounded of to `32,000/-.
17. Having regard to the aforementioned, substantial
question of law No.1 is answered in the affirmative. The
substantial question of law No.2 is answered by holing that the
disability certified by a doctor for a particular limb ought to be
taken vis-à-vis the avocation of the claimant to assess the loss
of earning capacity.
18. In view of the aforementioned, the following:
ORDER
i) The appeal is allowed in part;
ii) The judgment dated 29.09.2012 passed by the
Commissioner for Workmen's Compensation
Commissioner, Chitradurga, in WCA/ NFC/ CR.No.
206/2007 is modified only to the extent stated
herein. In all other respects, the judgment and
award of the Commissioner remains unaltered. The
Respondent No.1/claimant is entitled to a
compensation of `32,000/-;
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iii) The amount deposited by the Appellant be
transmitted to the Court of the Senior Civil Judge,
Challakere for disbursement in terms of the
judgment of the Commissioner. If any amount
deposited is in excess, the same be refunded to the
Appellant. If there is any deficit, the Appellant shall
deposit the balance compensation together with
accrued interest within a period of eight weeks from
the date of receipt of a copy of this judgment
before the Court of the Senior Civil Judge,
Challakere;
iv) No costs.
Sd/-
JUDGE
PNV
CT: BHK
