Karnataka High Court
Vilhas S/O Ankush Chendake vs Vilhas S/O Shankar Mane And Ors on 2 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
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MFA No. 201677 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO.201677 OF 2019 (WC)
BETWEEN:
VILHAS
S/O ANKUSH CHENDAKE,
AGE: 27 YEARS,
OCC: COOLIE,
R/O: JADAR GALLI,
VIJAYAPUR - 586 101.
...APPELLANT
(BY SRI BASAVARAJ R.MATH, ADVOCATE)
AND:
1. VILHAS
Digitally signed S/O SHANKAR MANE,
by RAMESH
MATHAPATI AGE: MAJOR,
Location: HIGH OCC: OWNER OF VEHICLE
COURT OF
KARNATAKA ITS NO.MH.04/P-1554,
R/O: YESHAVANTH NAGAR,
A/P BARSHI,
TQ: BARSHI - 413 401.
2. DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
VIJAYAPUR - 586 101.
3. IRSHAD NASIR BAIG MOGAL,
AGE: MAJOR,
OCC: MANAGER AND POLICY HOLDER,
-2-
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MFA No. 201677 of 2019
HC-KAR
R/O: A/P MOGALWADA,
TQ: BHOM,
DIST: OSMANABAD - 390 017.
...RESPONDENTS
(BY SRI J. AUGUSTIN, ADVOCATE FOR R2;
NOTICE TO R2 AND R3 ARE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF WORKMAN COMPENSATION ACT, PAYING
TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED
18.12.2018 PASSED BY III ADDITIONAL SENIOR CIVIL JUDGE
AND COMMISSIONER FOR EMPLOYEES COMPENSATION ACT,
VIJAYAPURA IN E.C.A.NO.14/2014, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging the judgment and award dated
18.12.2018 passed by II Additional Senior Civil Juge and
Commissioner for Employees Compensation Act, Vijayapur
in ECA no.14/2014, this appeal is filed.
2. Sri Basavaraj R.Math, learned counsel for
claimant/workman submitted that appellant was employed
as coolie by respondent no.1 in his lorry bearing
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Reg.no.MH-04/P-1554. While he was in employment on
12.03.2009 vehicle was proceeding for unloading of
material, it met with accident near Anadur village on
Hyderabad-Solapur road. In said accident, claimant
sustained grievous injuries resulting in loss of earning
capacity, despite taking treatment. Therefore, he filed
claim petition under Section 22 of Workmen's
Compensation Act against employer and Insurer.
3. On appearance, petition was opposed. Employer
accepted employment but disputed monthly salary as
claimed. Vehicle being insured with respondent no.2 and
its liability to pay compensation was also pleaded. Insurer
admitted insuring vehicle but denied employment, age,
occupation and income as well as disability suffered by
claimant.
4. Based on pleadings issues were framed.
Thereafter, claimant led evidence, examined himself as
PW.2 and Dr.Avinash Chitral, Orthopedic Surgeon as PW.1
and got marked documents Exs.P.1 to Ex.P.9. An
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employee of respondent no.2/insurer was examined as
RW.1 and copy of Insurance Policy was got marked as
Ex.R1.
5. On consideration, Tribunal held relationship of
employer and employee between claimant and respondent
no.1 and occurrence of accident arising out of and during
course of employment was established. It assessed
monthly income of claimant at `4,000/- and applying
factor of 197.06 corresponding to age of claimant at 35
years, assessed disability at 7% and awarded
compensation of `33,106/-. It awarded same along with
interest at 12% per annum from 12.04.2009.
6. Dissatisfied with same, claimant was in appeal.
It was submitted award of interest from one month after
date of accident by Tribunal was contrary to decision of
Hon'ble Supreme Court in case of Shobha and others vs.
The Chairman, Vithalrao Shinde Sahakari Sakhar
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Karkhana Limited and others1. It was further submitted
assessment of loss of earning capacity was ignoring
assessment of disability by PW.1 - Doctor and same would
constitute substantial questions of law. Hence, sought for
answering same in favour of appellant and to allow appeal.
7. Sri J.Augustin, learned counsel for respondent
no.2 - Insurer sought to oppose appeal. It was submitted
assessment of extent of disability by Tribunal would be
finding of fact based on material produced and same
would not constitute substantial question of law, to
entertain appeal. It was submitted claimant had sustained
fracture of lower end of left radius and ulna and fracture of
metacarpal would not support 25% disability as assessed
by PW.1 and Tribunal rightly disbelieved same and
assessed it at 7%. On said ground, prayed for dismissing
appeal.
2022 SCC OnLine SC 308
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8. Heard learned counsel. Perused impugned
judgment and award.
9. With their consent matter is taken up for
disposal on following substantial question of law :
(i) Whether assessment of earning capacity
by Tribunal was in ignorance of
assessment by PW.1 - Doctor ?
(ii) Whether award of interest was contrary to
decision of Supreme Court in Shobha's
case (supra) ?
10. As noted above, occurrence of accident,
claimant sustaining injuries during course of and out of
employment, liability of Insurer to pay compensation are
not in dispute. Enhancement of compensation is prayed.
By referring to Ex.P.6 - wound certificate and deposition of
PW.1, Tribunal noted that claimant had sustained fracture
of lower end of left radius and ulna and fracture of mid
shaft of 3rd metacarpal and base of 4th metacarpal.
Claimant is admittedly a coolie. In his deposition, (certified
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copy of which was made available by learned counsel for
claimant for perusal of this Court), PW.1 has stated that
on clinical examination claimant had sustained restriction
of movements of left elbow and wrist i.e., flexion of elbow
by 7%, dorsiflexion of wrist by 7.8% and deviation of
radial and ulna at 27.2% which resulted in permanent
physical disability at 25-30% to left upper limb. PW.1 did
not asses loss of earning capacity. During cross-
examination, suggestion about assessment of disability be
excessive are denied. There is no contrary material placed
to challenge assessment. While passing impugned award,
Tribunal observed that PW.1 admitted assessment would
be on upper side. In disability certificate as well as in
deposition PW.1 has noted that fractures are united. There
is no mention of mal-union. However considering fact that
during clinical examination PW.1 observed restriction of
movement of elbow and wrist, in light of claimant's
employment as coolie, it cannot be said that disability
would not result in loss of earning capacity. Tribunal
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appears to have applied 1/4th of limb disability as whole
body disability formula which would not be appropriate.
Taking note of above facts and circumstances, it would be
appropriate to assess it as 10%. Consequential
computation would be as follows :-
`4,000/- x 60% x 10% x 197.06 = `47,294/-.
Substantial question of law no.1 is answered accordingly.
11. Insofar as award of interest in view of decision
in Shobha's case (supra) wherein it is held interest would
be payable from date of accident, substantial question of
law no.2 has to be answered in affirmative. Consequently,
following :
ORDER
Appeal is allowed in part.
Claimant is held entitled for `47,294/- with interest
at 12% per annum from date of incident i.e., 12.03.2009
till payment.
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Insurer would be entitled to seek adjustment of
amount deposited, if any.
Sd/-
(RAVI V HOSMANI)
JUDGE
SN
Ct;Vk
