Karnataka High Court
The Divisional Manager vs Mohammad Shafi S/O.Sheik Humayun on 26 September, 2025
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MFA No. 21671 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
MISCELLANEOUS FIRST APPEAL NO. 21671 OF 2013 (WC-)
BETWEEN:
1. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
BELLARY, REPRESENTED THROUGH
ITS DIVISIONAL OFFICE,
OPPOSITE RADHIKA TALKIES,
RAGHAVACHARI ROAD, BELLARY,
REP. BY ITS DIVISIONAL MANAGER.
...APPELLANT
(BY SRI. N.R. KUPPELUR, ADV)
AND:
1. SRI. MOHAMMAD SHAFI
S/O. SHEIK HUMAYUN
AGE: 36 YEARS, OCC: LOADER,
R/O. TORANAGALLU, BELLARY.
2. SMT. LAXMIDEVI W/O. OBANAYAK
AGE: MAJOR, OCC:
R/O. DIVISION-1, CHALLAKERA,
MOHANKUMAR TQ: & DIST: BELLARY.
B SHELAR
...RESPONDENTS
Digitally signed by
MOHANKUMAR B (BY SRI. NOTICE TO R1 & R2 ARE HELD SUFFICIENT)
SHELAR
Date: 2025.09.27
11:23:28 +0530
THIS MFA IS FILED U/SEC.30(1)OF WC ACT, AGAINST THE
JUDGMENT AND AWARD DTD:22.01.2013 PASSED IN WCA:CR
NO.345/2012 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMENS COMPENSATION, SUB-DIVISION-2,
BELLARY, AWARDING THE COMPENSATION OF RS.1,65,538/- WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION
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AND SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE
ORDER.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. This appeal is filed by the insurance company,
challenging the judgment and award dated 22.01.2013
passed in WCA.CR.No.345 of 2012 by the learned
Workmen's Compensation Commissioner, Sub-
division-II, Ballari (for short, 'the Commissioner').
2. Brief facts leading rise to the filing of this appeal are
as follows:
3. On 22.07.2008, the petitioner while working as a
driver in the lorry bearing registration No.KA-18/5599,
belonging to respondent No.1--the owner, it collided
with another lorry bearing registration No.KA-01/B-
5549. He suffered injuries during the course and
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arising out of the employment and thus, sought for
compensation.
4. The petitioner had earlier filed a claim petition in WC
No.544 of 2008 and the said claim petition was
withdrawn by the petitioner and filed the instant fresh
claim petition on the same cause of action.
5. The insurance company filed a statement of objections
denying the averments made in the claim petition and
contended that the second claim petition is not
maintainable when the petitioner has withdrawn the
earlier claim petition without the liberty to file a fresh
claim petition. Hence, on these grounds, he prays to
dismiss the claim petition.
6. The Commissioner, based on the pleadings of the
parties, framed the relevant issues.
7. The petitioner, to substantiate his case, examined
himself as PW-2 and another petitioner in WC No.344
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was examined as PW-1, examined the doctor as PW-3
and marked 13 documents as Exhibits P-1 to P-13.
8. On the other hand, the insurance company has not
examined any of its officers, however, marked one
document as Exhibit R2-1 i.e., the insurance policy.
9. The Commissioner, after assessing the verbal and
documentary evidence, allowed the claim petition in
part and awarded compensation of ₹1,65,538/- with
interest at the rate of 12% per annum after one month
from the date of accident till the realisation of the
amount.
10. The insurance company, aggrieved by the impugned
order, has filed this appeal.
11. Notice was issued to the respondents/petitioner.
Despite service of notice, they remained
unrepresented.
12. Head the learned counsel for the insurance company.
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13. The learned counsel for the insurance company
submits that prior to the filing of the instant claim
petition, the petitioner had filed a claim petition in WC
No.544 of 2008 and the said claim petition was
withdrawn by the petitioner without reserving any
liberty to file a fresh claim petition on the same cause
of action. Therefore, he submits that the second claim
petition filed by the petitioner is not maintainable and
the said aspect was not considered by the
Commissioner and committed an error in passing the
impugned order. He also submits that the disability
assessed by the Commissioner and the interest
awarded are on the higher side. Hence, on these
grounds, he prays to allow the appeal.
14. This Court vide order dated 09.02.2023 admitted the
appeal. Following are the substantial questions of law
that arise for consideration in this appeal:
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(i) Whether the Commissioner for
Workmen's Compensation acted
judiciously in entertaining the
second claim petition, ignoring
the fact that the earlier claim
petition was dismissed in the
year 2008 and a fresh claim
petition was not maintainable
on the same cause of action?
(ii) Whether the Commissioner for
Workmen's Compensation was
justified in assessing the loss of
earning capacity at 35%?
Substantial Questions of Law No.1:
15. There is no dispute regarding the occurrence of
accident and also the petitioner having sustained the
grievous injuries in the road traffic accident, during the
course and arising out of the employment. Further, the
petitioner has led the evidence to prove the
relationship of employer and employee between
respondent No.1 and the petitioner.
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16. The Commissioner, considering the entire evidence on
record, has rightly recorded a finding that the accident
occurred due to the rash and negligent driving by the
driver of the offending vehicle and also that there
exists a relationship of employer and employee
between respondent No.1 and the petitioner, and he
sustained grievous injuries in the road traffic accident.
17. Earlier, the petitioner filed a claim petition under the
Workmen's Compensation Act, 1926 in WC No.544 of
2008. He filed a memo seeking leave of the
Commissioner to withdraw the said claim petition. The
claim petition was dismissed as withdrawn and the
claim petition was not decided on merits.
18. Subsequently, the petitioner filed the instant claim
petition claiming compensation under the Workmen's
Compensation Act. The Commissioner has rightly held
that the earlier claim petition was not decided on
merits and it was withdrawn, as such, the petitioner is
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entitled for compensation under the Workmen's
Compensation Act, and rightly allowed the claim
petition filed by the petitioner.
19. Mere dismissal of the first claim petition as withdrawn
or on any other technical ground would not debar the
petitioner from filing a subsequent petition. The
Commissioner has rightly ignored the dismissal of
earlier claim petition. In view of the same, I do not
find any error in the impugned judgment entertaining
the subsequent claim petition.
20. In view of the above discussion, I answer substantial
question of law No.1 in the affirmative.
Substantial Questions of Law No.2:
21. The petitioner examined the doctor as PW-3, who has
opined that the petitioner has suffered a permanent
disability. The Commissioner considering the evidence
of PW-3 has assessed the disability at 35%. The
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findings recorded by the Commissioner insofar as the
disability is concerned, it is being supported by the
evidence of the doctor/PW-3 and the medical records.
Hence, the Commissioner was justified in assessing
the disability at 35%. The Commissioner was justified
in passing the judgment. I do not find any error in the
impugned order.
22. In view of the above discussion, substantial question
No.2 is answered in the affirmative.
23. In the result, I proceed to pass the following order:
ORDER
(I) The appeal is dismissed.
(II) The judgment and order dated
22.01.2013 passed by the
Commissioner for the Workmen's
Compensation, is hereby
confirmed.
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(III) The Registry is directed to
transfer the amount in deposit
and the TCRs to the
Commissioner, forthwith.
Sd/-
(ASHOK S. KINAGI)
JUDGE
RK
CT: BSB
