United India Insurance Co Ltd vs Eregowda @ Veeregowda S/O Iregowda on 10 December, 2010

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Karnataka High Court

United India Insurance Co Ltd vs Eregowda @ Veeregowda S/O Iregowda on 10 December, 2010

Bench: B.V.Nagarathna

IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
DATED THIS THE 101"" DAY OF DECEMBER 20419

BEFORE

THE HONBLE MRSJUSTICE B.V. NAGA§'xA"f}1N'A::   "

MFA NO. 13008 OF 2?IA_()O(>3':_4('\AA;TC')

BETWEEN:

UNITED INDIA INSURANCE CO. LTD'.I
BRANCH OFFICE,   
No.89/1, 2NDFLOOR, _ I _ _ ..
11TH CROSS, MALESHWAF;AM,'-- _ 2. j.
BANGALORE 560 003, '  '
REGIONAL OFFICEQ' _ Z   
UNITED INDIA 'I»NSi J__RANCE_ CO. I;I'.If3.., .
SHANKARNARAYANA'BIIILDI.N'G,.. ' '-
MG. ROAD, "  ",__ V   
BANGALORE '- 5550 0101 __ 

BY IIS MANAG.ER;f"-~  

. . . APPELLANT

[BY SR1: O. 

 I .  ERE  " 

~. AGED' ABOUT 32 YEARS,
QVEEREGOWDA,
S /"O IREGOWDA,
 R/O' B.':~NDODDI,
I ~ KASABA HOBLI,
-- _ x}_{A;NAKAPURA TALUK.
 BANGALORE RURAL DIST.

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2. K. RAJANNA, MAJOR.
S / O KALAPPA,
R / O J ARAGANAHALLI.
KANAKAPURA ROAD.
J .13'. NAGAR,
BANGALORE M 560 078.

[BY SR1 K.N. HARISH BABU. ADV. 
SR1 K. RAJANNA, ADV. FOR R2.,) '

WI} i  'A I A

 R.ESP:ONDEN2TS.w..: A

THIS MFA FILED U/S 3o:('1Ta,_OI5'V%.z,1O'._AeT'5..AOAINST * A'

THE ORDER DATED 21/8/06 PASSED INWCA' NO, 81/02
ON TIIE FILE OF THE ,---I_-ABOUR OF'FI.CER AND
COMMISSIONER FOR ' WORKMEN  COMPENSATION, SUB
DIvIsION--4., KARMIKA -BHA'JA1\_I,?BANNERGFLXTTA ROAD.
BANGALORE, AWARDINO A [cOM'pENSAT--~ION OF Rs.
1.90431 1 1 /- WITH 'INTE}"{ES'1"I~@ I'2cga;._P.A.  

THIS {'IP'PEA5i_.#.. I:tO'I-J1;A}.c:--...oI*s? EOR HEARING THIS DAY,
THE COURT DEjLIVER-ED'TIf1.E FOLLOWING;

  ﬂied by the insurance company by

  order passed by the Commissioner for

 Compensation, Bangalore in WCA

 21.8.2006 by raising the following

 ':V.snI1'bs.taII;Lia1 uestions of law: 



Whether the Commissioner was justified in

holding that appellant-winsurer was liable

when it was specifically pleaded .. '  ' V
proved that injured was  .;. 
employment of the insured in  it

at the relevant time of p_ acc;id_ent Vin: '

question? V p _ V p 2

Whether the Commissioner   
allowing Rs.i,09o,ei.i','eVV hioidlng loss of
earning c2!.paeity«"e.§t--V.  as
against 35%'   spoken to

by the .__doCfterV' Vb},{. the claimant

   

" "  order/ award of the

 tComrnissio11eij-is otherwise opposed to law,

 . "grounds raised in the appeal?'

fac'ts,lr'riaterial evidence and circumstances

of the ease' on hand?

 Whether the order of the Commissioner is

Vie'-Cvsulstainabie on any count in the light of

Z5



2. For t.he sake of convenience the parties shall

be referred to in terms of their status before.-~--the

Commissioner for Workmer1's Comper1satior1=..

[hereinafter referred to as ''Commissioner'').    'M

3. It is the case of_.t_he olajrhant he 

working as a Coolie of the fir"stﬁ"I'espohder1*t  the
owner of the 1orr},r;::""v~13ea.'i*di.'1Higrtregistratiori  No.KA--
05/A/2774 which was!"  the second

respondent -- i_:r1s§§;ra1*1eVe'corhpai'1y,"i?a1id from 30.8.2001

to 'V'thba~t'V'.:"he drawing a sum of Rs.2o0/9 .IfJer day} ft? "

O..r1 at about 5.00 p.m. after loading lorry, the lorry was proceeding from 0 Ka\Ar'eripLVj.vra.V0A.T~"to Kaggalipura on Ha1agur~Ma1aVal1i road he came near Thorekadenahalli check post ._0th_e'*driver of the lorry drove the lorry in a rash and 2 ./Z' U1 negligent, manner and as a result the claimant who was about to board the lorry fell down and sustained grievous injuries. That he was treated in Governm'erit, Hospital at Kanakapura, where he was it treatment and thereafter he wasislaifted {toil:'Vict'oriai"g Hospital at Bangalore, where he:l'wasV_zadrn'i_tted inpatient. That on account of*~th'e injuries by him in the accident he_ disability and hence, sought compensatiporriirand.er'n-i.I'V_thle Workmen's ComPensati011'i}\"C§i.:i1"

= "the said petition the respondentsappeared" contested the matter and ."'.'_vsougl52t :die.missal'«of__'the claim petition. in respect of their~,stands evidence was let in and on the basis of t.'}5ije.riievidence on record the Commissioner l'V.awarded'compensation of Rs.l,90,6l l/-- with interest at ,,:iftl}epir'a:t.e of 12% pa. by holding that the claimant was 2, ,2» (3 an employee of the respondent and that the accident had occurred during the course and arising out of__the employment and that there was 50% loss of capacity and by applying the factor of 21 1 V' the aforementioned compensation'.'"" Being agdgrie§.réa.'_1byio..¢ the said award, the insurance company has preferred"

this appeal. .9

6. I have heard the lear-'nedy_y_courisel appearing for the insurance c0mpany--.pa1ﬁ;'d so learned counsel appeariingllfor ﬂ-- claimant.

7. Itpis' behalf of the appellant that 'f7nesAclain1ant'Was' an unauthorised passenger and of the insured and that the accident' n.lot""occur during the course of and nor did V _ it arise his employment. That the Commissioner it toappreciate the contents of the FIR in its true ,/.3 perspective and that. the claim petition ought to been dismissed since t.here was no reiationshi_p'««.t_lof employer and employee. He further * the event of the claim petition being._.maintaiheabl_e' a_Iid':_ if there being a finding that there'«.VWas"

employer and employee, that.' the claimant did not suffer: any tota'l'~ior':lpartial disablement. no claim That the claimant was and there was negligenoel::.'on""the: claimant. Therefore.

on that llll petition was not rnaintainablle. V that the assessment of 50% of,lossltaffearning eapacity is on the higher side if eonsidleﬁiig 'that thlellinjuries sustained by the claimant l'welr<if~ not.l'a.t"ali~.grievous and therefore. the quantum of eompensatiolnlawarded is on the higher side. He there_fore;---- 'submitted that the impugned order deserves 'modified by allowing the appeal. Learned counsel i 524 for appellant also contended that in the instant case___the interest awarded is not in accordance with the d.eetsi.o'n_ of the Apex Court and that the interest may ' in terms of the decision of the Ape>{~ACou1*t.'_'inthe;'easejof ORIENTAL INSURANCE COMPANY vs. & ANR. reported in 2009 '

8. Per contra, it 'behalf of the first respondent'L§V1~. "claimant was engaged as was corroborated by the well established that ~~en1I310Yee of the insured.

The1'efmje, Co.rmnisVs'ioner rightly held that the dirijuries we1'€..gSustavii*ied during the course and arising Emit" That considering the doctor's evidence thenEommissionei' has rightly held that there L505/'o..--d:loss of earning capacity and therefore, the A z impugned order does not call for any interference. He therefore submits that the appeal may be dismissedlrjr.

9. Having heard the counsel on both on perusal of the material on record, ' points would arise for my considetiriation: i_

1. Whether the 13' res_pondent--._-- cla_imant an employee of thetylyilinsuredaiidl jt_he-relore, was justified iny_...rr'1'airi't.aining --__a liclaim petition tmdieri 'proylisiyons of the Workmen's

2. the §a11tt'1"rtI-- .y compensation ._ Tribunal calls for any i' iliiiterfereneeélintltiilis appeal? wiiamr-de1:?"'*t'l i+'rozr1'"the__ymaterial on record it is established that sustained injuries on 6.5.2002 and thatthed V treated at Government Hospital at ..vi_lj'_:«._l',Kanakar5:ira and at Victoria Hosiptal. Sufficient l O evidence has been produced by way of photographsvand other medical records and also by way of the evidence to prove that the claimant injuries in the accident that occ.1,ir~re.,d .=j11vVaccoui1t_jof'._V V use of the vehicle, namely the lorr:y.wh_Ailch to the second respondent»%'~~._ii1suVred' respondent who is the.»appellai'lt.'Vy_heVrein. l ﬂﬁowevjer, the claim petition would.' under the provisions of hot only if the claimant is in other words, that lolnflernployer and employee between'l'thle«l. claimant. In support of the contention therefwas no such relationship, the gcotiflsellllftjfllthe appellant has drawn my "theLcontents of the FIR which is marked at v_Thle}complaint in the instant case is given by oneyK.J.=..--Kumar who was working as a cleaner of the question and he had stated that on the said /9 date t.he claimant was engaged as a Coolie to load the lorry and that after the lorry was loaded. he load of lorry and that he had get down front; ' and gone to another place and on the while boarding the said lorry the iacciindent the claimant was injured. _read.in.g l' of the FIR, it is esta1:ilished"* W818 engaged by the insu1'edlas__'a even if it is accepted thatiatteri-Vvihad got down and gone to' return of the lon*y while he fell and sustained inju1*ies:,l'-sirice the lorry who was in the lorry at the ltrrn_e o.f".'the'.ac'cident has given the complaint ujndisputedllplolint of time, the said evidence 'theivrelationship between the parties. Thus the c__onteiitio'n that the relationship of employer and :was absent as submitted by the counsel for _i1isu»rarice company, cannot be accepted. L

g) 12

11. Further. the contention that the accident occurred on account of the negligence of the claimant in trying to board the lorry also cannot be accepted injsview of the fact that there is no evidence to the effect.' account of the negligence on the part of. that the accident occurred or board a lorry which was ir1»'m_otior1.__lC)n zoflgthe contents of the FIR it is esta1o;lishedll'thlat':there was relationship of employer 'and; and that the accident had occurred~"--dvuring--the "com-se of and arise out of was no negligence on the part. of was the cause in his sustaining the1njuries.l".Hence, point No.1 is answered ' din faifoiir of_the lcllairnant and against the appellant -- A s-insfu. 1"El1TllC'€.COfﬂ ..12---.; As for as the quantum of compensation is concerned, from the Inaterial on record. namely the X."

wound certificate and the evidence of doctor who was examined as PW.1 it is evident that the claimant"-.hfa.d sustained wound over the back of left leg from head of the fibula 1aterally»..0Ver thlelfcalf» ll upto upper border of calcareous swelling of the muscles. Theivfwound vqasuals it ' l was a deep infected left foot and there was oedlelnial' and ankle. PW.2 has complained of pain of 1efti'foof*- inability to walk for long llipainful movement of left ankle V of X--rays it was found that Awchronic asteomyelities of tibia and fibula at mid 'lf"thifd:' fibrous ankoylises at ankle joint « ﬂexation limited by 100 M adduction and abduction limited and fusion of metatarsal bones left foot VlL""witeh of arch. PW.2 the doctor has stated in his eiddcnce that the claimant had difficulty in squatting or ./'f walking for long distance or standing for a long time and could not perform his avocation as coolie. He aSse»s_sc_d the permanent disability at 35% over the _ 15% disability to the whole body; a.s__per_-- the ~ .gt1,ildelvi--ne9l it given in ALElVICO'S Manual.

13. PW.2, the-- doctorllﬂwas. cr'ossA:e2stamined, wherein he has ;c:o1"1,.tents of his €X3'"i"a"°""i"*§hser contra material which has evidence of PW.2 is corrobolrativeVT,ot "the Claimant who has sustained by him and the diffic1_1.lties'lt'h.at he is'v_e5qderiencing and also the extent of has sustained on account of the ac.cident~, "Ti':e:_}~evidence with regard to the injuries sus.tainedi.ibAy the claimant are also corroborated by Ex_.P..4=---L the wound certificate, wherein it has been l ._stated that two of the injuries sustained by the claimant

--/'<2 are grievous in nature and one of the injuries is simple. The photographs produced as EX.P.9 clearly show.__the sutured Wounds on the left leg upto calf also on the dorsum of the foot extending uptoTt'he."a "

The Commissioner on the basis--"of'~-the 7_4sa_1'd:'i'eyi.dence7.g assesses the loss of earning capacity'-at500/c_..yn. The assessment is impugned by the"v-i,nsurance..gcornpany by contending that in t}'1e__ abselncen' o"f~..there'"'be'ing any fracture, there is neither partial disablement or is there any total disabl:+ni_ent{and«~therefo1*ei,___r1o compensation could hqauxfe' Eloiifeyer, from the material on recordnthe .-'stated that there is 35% permanent ndis_abili'tyAtond'the left leg and 15% disability Whole' body: nnnnn "n'l"herefore, the contention of the is no disablement sustained by the _ Clair:-1_aI1t_~,' Cannot be accepted. xx 2 36

14. The other point that has to be considered is as to whether the assessment of 50% loss of capacity is on the higher side. With r. aspect the claimant has stated about: 4the"iV'act.':t'hat' uh' unable to work as a coolie and he«'is7no't in'~a"'positio_di*1._to--i walk properly. He cannot sit. " V It is difficult for him to..climb'~atﬁ53taircase and that he is not engaged in any of the claimant is of the doctor who has disability on the basis of the.' 'the'"'inedical records and considering .-~P\.?V.2 had also treated the claimaznt, his _evid.ence cannot be an exaggeration of the sustained llll the claimant as well as the dsnfffered by him. The Commissioner for Wor_km__e'n'sCompensation has taken into consideration J'the'fa.c't---- that the claimant was working as a coolie and _' on" -account of the injuries his movement. and his 52» 'Mar capacity to stand, sit and climb stairs, walk for long distances have become impaired. No do1,ilot"a_:th_e claimant may not have sustained any however, the fact that he has_suystained" 'ple:rrna.r1eI1tv ll"

disability, is well established. T a;l£ing:i11'to llicor1sid_eria't~iori.:

the evidence on record, the 'i'rlb.unall'asses_sevd ~loss of * ' earning capacity at 59%. $ir1cye':-triepppCornmiysslioner for Workmen's Compensation' has such a finding on the basis of orrrecord and also on the fact' had an opportunity to eXa:n"lilne'eA wthe'nVlhe deposed and has arrivedlatul of loss of earning capacity taking into considerationlthe medical evidence on record °the"rel'is*--."tno'i'good reason to take a contrary View on the

-said monthly income of the claimant has been as__sessed at Rs.3,000/-- and the factor of 211.79 Vljhasp been applied considering the fact that the claimant e._llwas~Aonly 28 years of age and 60% of the monthly ii/, I income has been taken into consideration while arriving at the compensation. The same in my consideredyiew wouid not call for any interference. 'l'he1f'eibr.e,.'..:: quantum of compensation awarded ..':a1g*OV .nQf[' "

excessive. Hence, point No.2 is'-_a1s1oanswere'd the insurance company. the"-ca:-.6 A{QR.lE)i\33TAi, INSURANCE co. LTD,' Vs. ANR.

reported in (2009) 6 by the Apex Court that Act does not prohibit a rate from the date betihtiionﬁtiii the order is passed and that (3) of Section 4i~A would be attracted higher. rate of interest wouid be payable. . .""AWV"herei7ore;'i' a findinigdof fact as envisaged therein has to the said case, interest at the rate of 71/2 C/oi "'p.a..__v'x'¢afsAi granted from the date of filing of the ;."ae.piicati'on till the date of award. The said case "pertains to a case of injury. in the said decision /*7' E9 reference was made to the case of NA'1'IONAL INSURANCE CO. LTD. vs. MUB/»\SiR AHMEI) reported in (2007) 2 SCC 349 to state that since the legislature has not usedjthe expression "from the date of accident" unless__tjhTere"'isian"A _ adjudication, the question of amount fa_1li1ig.::jdn'e:: does' W 2 not arise as the interest has to from:'the_'d.atel'itffalise_'l due. Considering the face-':j_'t1j'1at the case liability of the insurance .\}Vasl__ch_allenged which required an adj"udicalti_oi§1' ;W.h--ifch»l"»vould meet the ends of justice._"if_ in the" caseillalso interest is awardedlat of p.a.iif14o£n the date of the claim I3etitior1l'-till«--th6' award, the rate of interest thereafter bathe. statutory interest as fixed by the .'"Com1riissior'1er. v"lTherefore, with the modification o-Finterest for the period prior to the V're_spLects.--- "

date-._of adjtidication the appeal is dismissed in all other 1;

In the result, the appeai fails and is dismisseci, except in respect of the modification made with to the rate of interest payabie from the date * petition till the date of the 3W-';1'I'd._' deposit before this Court to be Commissioner for Workmerfs..Ce.mpei1satiQn';:

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