Karnataka High Court
M/S United India Insurance Coltd vs B Babu S/O Shaik Modin on 12 February, 2016
Author: B.Manohar
Bench: B.Manohar
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
M.F.A.No.30801/2009 (WC)
C/w
M.F.A.No.30796/2009
M.F.A.No.30797/2009
M.F.A.No.30798/2009
M.F.A.No.30799/2009
M.F.A.No.30800/2009
M.F.A.No.30801/2009 (WC)
BETWEEN:
M/s United India Insurance
Company Limited through its
Divisional Manager, Raichur.
... Appellant
(By Sri Manvendra Reddy, Adv.)
AND:
1. B. Babu
S/o Shaik Modin
Aged about 40 years
R/o Golapalli
Tq: Lingasugur, Dist: Raichur.
2
2. Noor Ahmed
Occ: Owner of
Lorry No.CRQ 7987,
R/o Ward No.2,
Bellary.
... Respondents
(Sri Basavaraj R. Math, Adv. for R1
Notice to R2 is held sufficient)
This MFA is filed under Section 30(1) of WC Act, against
the judgment and award dated 23.01.2009 passed in WCA
No.221/2008 on the file of the Workmen's Compensation
Commissioner, at Raichur, partly allowing the claim petition
for compensation and awarding compensation of Rs.
1,33,486/- a/w interest @ 12% P.A., after 30 days from the
date of order.
*****
M.F.A.No.30796/2009 (WC)
BETWEEN:
M/s United India Insurance
Company Limited through its
Divisional Manager, Gulbarga.
... Appellant
(By Sri Manvendra Reddy, Adv.)
AND:
1. Basava S/o Kallingappa
Aged about 22 years
R/o Golapalli
Tq: Lingasugur, Dist: Raichur.
3
2. Noor Ahmed
Occ: Owner of
Lorry No.CRQ 7987,
R/o Ward No.2,
Bellary.
... Respondents
(Sri Basavaraj R. Math, Adv. for R1
Notice to R2 is held sufficient)
This MFA is filed under Section 30(1) of WC Act, against
the judgment and award dated 23.01.2009 passed in WCA
No.216/2008 on the file of the Workmen's Compensation
Commissioner, at Raichur, partly allowing the claim petition
for compensation and awarding compensation of Rs.
1,13,120/- @ 12% P.A., after 30 days from the date of order.
*****
M.F.A.No.30797/2009 (WC)
BETWEEN:
M/s United India Insurance
Company Limited through its
Divisional Manager, Gulbarga
... Appellant
(By Sri Manvendra Reddy, Adv.)
AND:
1. Keshava
S/o Ramappa
Aged about 25 years
R/o Golapalli
Tq: Lingasugur,
Dist: Raichur.
4
2. Noor Ahmed
Occ: Owner of
Lorry No.CRQ 7987,
R/o Ward No.2
Bellary.
... Respondents
(Sri Basavaraj R. Math, Adv. for R1
Notice to R2 is held sufficient)
This MFA is filed under Section 30(1) of Workmen's
Compensation Act, against the judgment and award dated
23.01.2009 passed in WCA No.217/2008 on the file of the
Labour Officer and Commissioner for Workmen's
Compensation , Raichur, partly allowing the claim petition for
compensation by awarding compensation of Rs. 93,444/-
with interest @ 12% P.A., after 30 days from the date of order
till realization.
*****
M.F.A.No.30798/2009 (WC)
BETWEEN:
M/s United India Insurance
Company Limited through its
Divisional Manager, Gulbarga.
... Appellant
(By Sri Manvendra Reddy, Adv.)
AND:
1. Veeresh
S/o Ramesh
Aged about 21 years
R/o Golapalli
Tq: Lingasugur, Dist: Raichur.
5
2. Noor Ahmed
Occ: Owner of
Lorry No.CRQ 7987,
R/o Ward No.2,
Bellary.
... Respondents
(Sri Basavaraj R. Math, Adv. for R1
Notice to R2 is held sufficient)
This MFA is filed under Section 30(1) of WC Act, against
the judgment and award dated 23.01.2009 passed in WCA
No.218/2008 on the file of the Workmen's Compensation
Commissioner at Raichur, partly allowing the claim petition
for compensation and awarding compensation of Rs.
1,11,934/- @ 12% P.A., after 30 days from the date of order.
*****
M.F.A.No.30799/2009 (WC)
BETWEEN:
M/s United India Insurance
Company Limited through its
Divisional Manager, Gulbarga.
... Appellant
(By Sri Manvendra Reddy, Adv.)
AND:
1. Vasu
S/o Durgappa
Aged about 20 years
R/o Golapalli
Tq: Lingasugur, Dist: Raichur.
6
2. Noor Ahmed
Occ: Owner of
Lorry No.CRQ 7987,
R/o Ward No.2
Bellary.
... Respondents
(Sri Basavaraj R. Math, Adv. for R1
Notice to R2 is held sufficient)
This MFA is filed under Section 30(1) of WC Act, against
the judgment and award dated 23.01.2009 passed in WCA
No.219/2008 on the file of the Workmen's Compensation
Commissioner at Raichur, partly allowing the claim petition
for compensation and awarding compensation of Rs.
1,12,582/- @ 12% P.A., after 30 days from the date of order.
*****
M.F.A.No.30800/2009 (WC)
BETWEEN:
M/s United India Insurance
Company Limited through its
Divisional Manager, Raichur.
... Appellant
(By Sri Manvendra Reddy, Adv.)
AND:
1. Shivanna
S/o Ranganna
Aged about 19 years
R/o Golapalli
Tq: Lingasugur, Dist: Raichur.
7
2. Noor Ahmed
Occ: Owner of
Lorry No.CRQ 7987,
R/o Ward No.2
Bellary.
... Respondents
(Sri Basavaraj R. Math, Adv. for R1
Notice to R2 is held sufficient)
This MFA is filed under Section 30(1) of WC Act, against
the judgment and award dated 23.01.2009 passed in WCA
No.220/2008 on the file of the Workmen's Compensation
Commissioner at Raichur, partly allowing the claim petition
for compensation and awarding compensation of Rs. 97,024/-
a/w interest @ 12% P.A., after 30 days from the date of order.
*****
These MFA's coming on for admission this day, the
Court delivered the following:
JUDGMENT
Appellant-Insurance Company has filed these appeals challenging the quantum of compensation awarded to the claimants in the judgment and order dated 23.01.2009 made in WCA.No.216-221/2008 passed by the Labour Officer and 8 Commissioner for Workmen's Compensation, Raichur, (hereinafter referred to as 'WCC').
2. The common order passed by the WCC is challenged in these appeals. Hence, all these appeals are clubbed together and disposed of by this common order.
3. Respondent No.1 in these appeals are the claimants. Each of them had filed the claim petitions contending that the claimant in WCA.No.216/2008 was working as a cleaner, the claimant in WCA.No.217-220/2008 were working as Hamalis and the claimant in WCA.No.221/2008 was working as a driver of lorry bearing registration No.CRQ-7987 belonging to second respondent herein. On 05.02.2008, as per the instructions of owner of the vehicle, after unloading maize at Bellary and while returning from Bellary at about 3.00 a.m. in the morning on NH-19, another lorry bearing registration No.KA-19/4325 came from opposite direction driven by its driver in a rash and negligent manner dashed against the lorry in which the 9 claimants were travelling. Due to the impact, driver, cleaner and Hamalis sustained injuries. Initially, they were shifted to Primary Health Centre at Korlagundi. Thereafter, they had taken treatment in the private hospitals. In view of the injuries sustained and fracture of limbs, they have become permanently disabled and lost their earning capacity. Prior to the accident, the driver of the lorry was getting salary of Rs.4,500/- per month and bata of Rs.50/- per day, the cleaner was getting salary of Rs.4,000/- per month and bata of Rs.25/- per day and other claimants were getting salary of Rs.3,500/-. The accident had occurred during the course and out of employment. The offending lorry is covered by the insurance policy. Hence, Insurer of the offending vehicle is liable to compensate the claimants.
4. In pursuance of the notice issued by the WCC, the owner of the vehicle entered appearance and filed written statement admitting that the claimants were working as cleaner, Hamalis and driver of the said vehicle belonged to 10 him. On 05.02.2008, after returning from Bellary on unloading maize, the accident had occurred and he was paying Rs.4,500/- per month to the driver, Rs.4,000/- per month to the cleaner and Rs.3,500/- per month to the hamalis. He was not aware of the nature of the injury and gravity. Since the vehicle was covered by the insurance policy, the insurer has to compensate the claimants and sought for the dismissal of the claim petitions as against the owner of the vehicle.
5. The second respondent/Insurance Company in the claim petition filed written statement denying the entire averments made in the claim petitions and also contended that no document has been produced to show that the claimants were workmen within the meaning of Section 2(1)(n) of The Employees Compensation Act, 1923. The claimants were unauthorized passengers travelling in a goods vehicle. Hence, the insurer is not liable to compensate the claimants. However, it was admitted that vehicle in question 11 is a heavy goods vehicle and six employees in the said lorry are covered by the insurance policy.
6. On the basis of the pleadings of the parties, the WCC framed necessary issues.
7. The claimants in order to prove their case got examined themselves as PW.1 to PW.6 and got marked the document as Ex.P.1 to Ex.P.19. Sri S.Jagannath, senior officer of the insurance company has been examined as RW.1 and insurance policy was marked as Ex.R.1 with the consent of the parties.
8. The WCC after considering the oral and documentary evidence adduced by the parties held that the claimants were the driver, cleaner and hamali working in a lorry belonging to second respondent. During the course of employment they had sustained injuries. Hence, the claimants are entitled for compensation.
12
9. With regard to quantum of compensation is concerned, though the claimants claimed that they were getting salary of Rs.4,500/- per month, Rs.4,000/- per month and Rs.3,500/- per month respectively, no document has been produced to substantiate the same. In view of that, the WCC taking into consideration the minimum wages being paid to the driver, cleaner and hamali working in a lorry, considering the disability assessed by the doctor and on re- appreciation of the assessment made by the doctor and taking into consideration the age of the claimants awarded a sum of Rs.1,13,120/- for claimant in WCA.No.216/2008, Rs.93,444/-, Rs.1,11,934/-, Rs.1,12,582/-, Rs.97,024/-, and Rs.1,33,486/- in respect of claimants in WCA.No.217- 221/2008 respectively with 12% interest p.a. Being not satisfied with the quantum of compensation awarded to the claimants taking into consideration the disability assessed by the doctor, the appellant-Insurance Company has filed these appeals.
13
10. Sri Manvendra Reddy, learned advocate appearing for the appellant in all these appeals contended that the judgment and orders passed by the WCC, while considering the disability is contrary to law. During the pendency of the said claim petitions, the appellant has filed an application to refer the disability assessed by the doctor to some other doctor. However, the WCC without any reason rejected the said application. The injury sustained by the claimants are not serious in nature. However, the doctor assessed the disability to an extent of 40%-45%, which is contrary to law under Section 4(1)(c) of Employees Compensation Act. The qualified medical practitioner has to assess the percentage of loss of earning capacity based on the injury sustained and to assess the functional disability of the person due to the injury sustained. The rejection of the application is contrary to law. In support of his contention, he relied upon the judgment reported in ILR 2004 KAR 193 in the case of Shivalinga Shivanagowda Patil and Others Vs Erappa Basappa 14 Bhavihala and Others and sought for allowing the appeal modifying the judgment and order passed by WCC.
11. On the other hand, Sri Basavaraj.R.Math, advocate appearing for claimant/respondent No.1 in all these appeals argued in support of the judgment and order passed by WCC and contended that the minimum wages being taken to the cleaner, hamali and driver is contrary to law. The owner of the vehicle has filed the written statement and specifically admitted that he was paying Rs.4,500/- per month to the driver, Rs.4,000/- to the cleaner and Rs.3,500/- per month to the hamali. There is no dispute regarding the payment of salary to the claimants. The insurance company has also not disputed the payment of salary to the claimants by leading evidence in this regard. Even though, nobody has raised any objections with regard to the payment of salary, the WCC has taken the salary of Rs.3,021/- to the driver, Rs.2,434/- to the cleaner and Rs.2,393/- for hamalis, which is contrary to law. Dr. Rajesh was an orthopedic 15 surgeon and he had issued the disability certificate after verifying injuries and suffering undergone. Under the Workmen's Compensation Act the doctor has to assess the loss of earning capacity of a person and functional disability while awarding the compensation. In the instant case, in view of the fracture they had sustained and taking into consideration the functional disability they had undergone since they are the driver, cleaners, hamalis working in the said lorry, the WCC has awarded the just compensation. The appellant has not made out a case to interfere with the same and hence sought for dismissal of the appeals.
12. I have carefully considered the arguments addressed by the advocate appearing for the parties and perused the judgment and order passed by the WCC and oral and documentary evidence adduced by the parties.
13. The records clearly disclose that the claimants were working as a cleaner, hamali and driver in a lorry bearing registration No.CRQ-7987. Following the instructions 16 of the owner of the vehicle, after unloading maize at Bellary, while returning, due to rash and negligent driving of the offending vehicle the accident had occurred. The claimants have sustained injuries. The claimants are the workmen within the definition of Section 2(1)(n) of The Employees Compensation Act, 1923, and accident occurred during the course and out of the employment. Hence, the claimants are entitled for the compensation.
14. With regard to the quantum of compensation is concerned in the accident, the claimant in WCA.No.216/2008 had sustained fracture of lower end of radius, ulna and fracture of patella. The claimant in WCA.No.217/2008 had sustained fracture of lower end of humorous and fracture of tibia and other injuries. The claimant in WCA.No.218/2008 had sustained fracture of middle femur and fracture of patella and other injuries. The claimant in WCA.No.219/2008 had sustained fracture of tibia, fibula and patella. The claimant in WCA.No.220/2008 had sustained fracture of caramel and 17 fracture of patella. The driver of the vehicle in WCA.No.221/2008 had sustained fracture of radius and fracture of femur. Admittedly, the claimants are cleaner, hamali and driver. In view of the fracture, there will be functional disability. In view of the fracture of the femur and radius, the driver finds difficulty to drive the vehicle, sometimes it amounts to 100% functional disability. In view of the fracture of the lower end of radius, ulna and patella, it is difficult for the coolies and the cleaners working in a lorry to load the heavy objects and it will come in the way of loading and unloading the goods. In the instant case, though the doctor has assessed the disability at higher side, the WCC re-appreciating the disability assessment made by the doctor had reduced the disability to an extent of 5% insofar as the claimants in WCA.No.216-220/2008 and awarded compensation. I find there is no infirmity or irregularity in the quantum of compensation awarded.
18
15. One of the contentions raised by the appellant is that during the pendency of the petition, the appellant filed an application under the provision of Employees Compensation Act, 1923 praying to refer the disability assessed by the doctor to some other doctor. However, the WCC rejected the said application, which is contrary to law. In support of his contention, he relied upon para 25 of the judgment reported in ILR 2004 KAR 193 and contended that once the other side raised the objection to the assessment of disability, the WCC is bound to refer the matter to some other doctor for assessment. Paragraph No.25 of the judgment does not contemplate the same. It is subject to satisfaction of the Commissioner, if the Commissioner comes to the conclusion that the assessment of disability by the qualified medical practitioner is incorrect and if the Commissioner found that it has to be referred to some other doctor, he can do so subject to satisfaction of the Commissioner. It is not mandatory on the part of the Commissioner in all cases. If the other side raise the objection, he has to refer the matter to the 19 other doctor for verification. The judgment relied upon by the appellant is not applicable to the facts of the case. In the instant case, the Commissioner himself was satisfied and reduced the percentage of disability and awarded compensation.
16. The WCC taking into consideration the age by applying the relevant factor and taking into consideration the functional disability and loss of earning capacity of the claimants awarded the just compensation. I find there is no infirmity or illegality in the judgment and order passed by the WCC. The appellant has not made out a case to interfere with the same. Though the claimants are entitled for the interest from 30 days after the accident till the date of payment, the WCC awarded the compensation from the date of award. However, the claimants have not challenged the said order. Hence, I will not go into that aspect of the matter. Accordingly, I pass the following;
20
ORDER The appeals are dismissed.
The amount in deposit in these appeals be transferred to the Civil Judge Senior Division, Raichur.
Sd/-
JUDGE msr