Karnataka High Court
The New India Assurance Co Ltd vs Shri Basappa Hanamantappa on 26 November, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 26th day of November 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.20618/2009 (WC)
Between:
The New India Assurance Co.,
Ltd., by its Divisional Office,
Bhavani Chambers, Ramaling,
Khind Galli, Belgaum.
By its Regional Office,
2-B Unity Building Annexe,
P.Kalinga Rao Road (Mission Road),
Bangalore-560027. Represented by its
Regional Manager. ...Appellant
(By Sri. Ravi.G.Sabhahit, Advocate)
And:
1. Shri Basappa Hanamantappa
Kallannavar, R/o: Tallur village,
Tq: Saundatti,
Dist: Belgaum-590001.
2. Nabisab Moulasab Nadaf,
Occ: Business, R/o: 1st Cross,
Veerabhadranagar,
Belgaum-590001. ...Respondents
(By Sri. H.M.Dharigond, Advocate for R1
Sri. Prashanth S.Hosamani, Advocate for R2)
1
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This miscellaneous first appeal is filed under
Section 30(1) of the Workmen's Compensation Act
against the judgment and award dated 14.10.2008
passed in WCA.SR-125/2007 on the file of the Labour
Officer and Commissioner for Workmen
Compensation, Sub-Division-II, Belgaum awarding
compensation of Rs.1,12,309/- along with interest of
12% p.a.
This appeal coming on for orders this day, the
Court delivered the following:
JUDGMENT
This appeal is by the insurer challenging the order and award passed by the Workmen's Compensation Commissioner in S.R. No.125/2007 dated 14.10.2008.
2. Though matter is listed in orders list, by consent of learned advocates for the parties, it is taken up for final disposal.
3. Heard Shri. Ravi.G.Sabhahit, learned advocate appearing for the appellant and Shri.H.M.Dharigond, 2 :3: learned advocate appearing for respondent No.1 as also Shri Prashant Hosamani, learned advocate for respondent No.2. Perused the order and award.
4. Claim petition was filed by the 1st respondent herein under the Workmen's Compensation Act claiming compensation of Rs.7,00,000/- contending that while he was working as a coolie in a truck bearing No.KA-25/1269 owned by 2nd respondent herein which met with an accident while returning from Hullikatti village after unloading maize on 28.07.2006 on account of rash and negligent manner by its driver resulting in toppling of the vehicle and all the inmates of the truck sustaining injuries including appellant. It was contended that he was an employee under R2 and, in the course of employment, the accident in question occurred and the injuries sustained was arising out of the employment and, as such, he sought for payment of compensation. It was contended that on account of 3 :4: fracture of clacinum bone of left foot, he had suffered disability resulting in permanent total disablement and thereby his earning capacity has got reduced. On these grounds, he sought for payment of compensation.
5. Respondents appeared and contested the matter and denied the claim of the appellant. Claimant examined Dr. Basavaraj.H. Doddamani, who had examined the workman on 20.12.2006 for assessing permanent physical disability of the claimant and who had opined that claimant had total permanent physical disability to the extent of 35% in respect of the left lower limb. The Commissioner for Workmen taking into consideration the avocation of the claimant (coolie), his age and the nature of work he was carrying on as also the evidence of the doctor into consideration arrived at the conclusion that the permanent disability suffered by the claimant is to be assessed at 30% as 'loss of earning capacity' and accordingly, computed the 4 :5: compensation payable to the claimant. The Commissioner has taken into consideration the income of the claimant at Rs.3,000/- per month, disability at 30% and consequential loss of earning capacity to the said extent and the age at 30 years and by applying relevant factor 207.98 has awarded total compensation of Rs.1,12,309/-.
6. Learned advocate appearing for the appellant by drawing the attention of the Court to the admission made by the doctor who was examined on behalf of the claimant would contend that doctor has admitted that there is 10% disability and this ought to have been taken into consideration as the 'loss of earning capacity' while computing compensation payable to the claimant and, as such, he contends that the order passed by the Commissioner is erroneous calling for interference by framing a substantial question of law. 5 :6:
7. Per contra, as noticed herein, Shri H.M.Dharigond would support the order passed by the Commissioner.
8. A perusal of the order passed by the Commissioner as also the evidence tendered by the doctor would clearly establish that P.W.2-Dr. Basavaraj.H.Doddamani has examined claimant for assessing permanent physical disability on 20.12.2006. He has perused the records produced before him including the x-ray report issued by Mayur Nursing Home, Dharwad, which discloses that there was fracture of calcinum bone of left foot and claimant was treated as indoor patient from 28.07.2006 to 10.08.2006 to opine there is 35% disability. The doctor has also opined that the pain in the leg of the claimant would aggravate while standing and walking for a longer distance and particularly when he carries weight on his head. He has also opined that he limps during 6 :7: walk and would face difficulty in standing for a long time. He has assessed the permanent physical disability to the extent of 35% in respect of the lower limb. This evidence is found from examination-in-chief. In his cross-examination dated 19.08.2008 which is pressed into service by the learned counsel for the appellant-insurance company the doctor has stated that there is 10% disability in respect of the bone. It is to be noted that the doctor has not stated that the disability of 10% is towards permanent physical disability or, in other words, 'loss of earning capacity, but, on the other hand, evidence available on record viz., the cross-examination of doctor would reflect that the claimant is unable to perform his regular work which he was hitherto carrying. It means claimant who was working as a Coolie will not be able to perform his regular work of coolie with this disability. Though the doctor has opined 35% as permanent total 7 :8: disablement, he has not specifically stated in his evidence that to that proportion the earning capacity has also got reduced.
9. Be that as it may. The Commissioner while assessing the entire evidence on record and by looking at the claimant who was present before him during the adjudication of the proceedings has assessed the loss of earning capacity of the workman at 30% by taking into consideration the injuries sustained, evidence of the doctor as also the nature of work which the claimant was carrying and his capacity to carry on said work in future due to disability suffered. In that view of the matter, finding arrived at by the Commissioner for Workmen's Compensation cannot be construed either to be contrary to records or facts which can be construed as giving rise for framing substantial question of law for being adjudicated. In that view of the matter, I do not find any 8 :9: merit in this appeal and accordingly appeal stands rejected. Parties to bear their costs.
Amount deposited by appellant before this Court is ordered to be transmitted forthwith to the jurisdictional Commissioner for Workmen's Compensation by Registry for disbursement in accordance with the order.
Sd/-
JUDGE Kms 9