Karnataka High Court
The Branch Manager vs Asri. Nakka Venkataraju S/O ... on 19 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1654
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
MFA NO.32206/2012 (WC)
Between:
The Branch Manager,
National Insurance Company Limited,
Raichur through its Divisional Manager,
Represented by its Assistant Manager,
Sri Anand Kulkarni.
... Appellant
(By Sri Manvendra Reddy, Advocate)
And:
1. Sri Nakka Venkataraju S/o Venkateshalu,
Aged about 42 years, Occ. Ex Cleaner,
R/o Shanti Nagar,
Now at Guntigol Village,
Tq. Lingasugur, Dist. Raichur.
2. Smt.A.Nagaveni W/o A.Shivanna
Age Major, Occ. Business and owner of
Swaraj Mazada Vehicle bearing
No.AP-02/W-0420,
R/o H.No.12/12/783,
Ashok Nagar, Anantapuram,
Andhra Pradesh.
... Respondents
(By Sri Basavaraj R.Math, Advocate for R1;
Notice to R2 held sufficient vide order dated 14.11.2016)
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This MFA is filed under Section 30(1) of the Workmen's
Compensation Act, praying to set aside the order dated
10.08.2012 passed by the Labour Officer and Commissioner
for Workmen Compensation, Raichur in W.C.No.1010/2007
by allowing the appeal as prayed for in the interest of justice
and equity.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
Even though the case is at the stage of admission but at the consent of the learned counsels for both the parties, this appeal is taken up for final hearing and for disposal, since short question of law is involved.
2. The present appeal is preferred under Section 30(1) of the Workmen's Compensation Act, challenging the judgment and award passed in WC No.1010/2007 dated 10.08.2012 by the Labour Officer and Commissioner for Workmen Compensation, Raichur (for brevity hereinafter called as the 'Commissioner').
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3. The brief facts of the case are as follows ;- The respondent No.1 was working under the employment of respondent No.2 as a cleaner in the vehicle bearing Reg.No.AP-02-W-0420 of respondent No.2 and was receiving salary of Rs.4,000/- per month and on 25.05.2007 at evening 5.00 p.m. at the instruction of his employer the respondent no.1 was travelling in the swaraj mazda vehicle and caused the accident to the stationed lorry bearing its Reg.No.TAD 2039 and sustained fractured grievous injuries and immediately the respondent No.1 was taken to the hospital for treatment. It is submitted that respondent No.1 sustained 45% of permanent total disablement. It is stated that respondent No.1 has given evidence before the learned Commissioner and produced documentary evidences as Exs.P.1 to P.9.
The learned Commissioner after considering the evidences adduced by both the parties has awarded 4 total compensation of Rs.2,10,836/- with 12% interest after 30 days from the date of accident. The learned Commissioner has taken into consideration the age of respondent No.1 as 25 years as it is an admitted fact, multiplied by relevant factor and taking into consideration the permanent total disablement at 45% accordingly quantified the compensation and awarded the compensation amount as stated above.
4. The learned counsel for the appellant submitted that the percentage of permanent total disablement assessed by the learned Commissioner is on higher side considering the nature of injuries sustained. Therefore resulting into award of higher compensation for which the respondent No.1 is not entitled. The learned counsel for appellant has restricted his submission regarding this taking into consideration of permanent total disablement at 45% thus challenged the judgment and award passed by the learned Commissioner.
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5. On the other hand the learned counsel for respondent No.1 submitted that the percentage of permanent total disablement taken by the learned Commissioner is appropriate and correct one and accordingly passed the award which is just and legal and therefore there is no need to cause interference in the award passed by the learned Commissioner. Therefore requested to dismiss the appeal.
6. Having heard the arguments from both sides the substantial question of law that would arise for consideration is -
"Whether the learned Commissioner committed error in assessing the permanent total disablement at 45% in contrary to the evidence on record, thus the approach of the learned Commissioner in appreciating the evidence on record is correct ?
7. In the present case the relationship between respondent nos.1 and 2 being the employee and employer is not disputed. The factum that the respondent no.1 was cleaner as on the date of accident 6 and also sustained injuries in the accident occurred on 25.05.2012 is also not disputed. The only point in controversy is whether the percentage of permanent total disablement taken into consideration by the learned Commissioner is on higher side or correct is to be decided.
8. Before the learned Commissioner, the Doctor- Medical Officer has given evidence as PW.2 and produced wound certificate as per Exs.P.4, P.5 and P.9 and accordingly has given evidence by stating that respondent No.1/claimant had sustained the injuries which is described as below ;-
"Swollen tender right hip joint region and after taking x-rays the hip joint revealed the evidence of fracture of acetabulum of right femur bone, resulting malunion with deformed right hip due to which the patient finds difficult to stand, squat, unable to bear the weight thereby affecting his physical activities and that of profession."7
9. Considering the nature of injuries sustained by respondent No.1 in the accident, it is revealed that there is a fracture of acetabulum of right femur bone, resulted into malunion fracture of right hip. Based on this the learned Commissioner has assessed the percentage of permanent total disablement at 45%.
10. But upon considering the nature of injuries sustained by respondent no.1 coupled with the evidence given by respondent No.1 before the Commissioner and considering the nature of injuries sustained coupled with the avocation of respondent No.1 as he was cleaner working under respondent no.2, the cognizance of percentage of disability taken by the learned Commissioner is on higher side. Considering the nature of injuries along with the avocation of respondent No.1, this Court is of the opinion the permanent total disablement is to be taken into consideration as 35%. The assessment at 45% of permanent total disablement is nearly 50%, which cannot be held on such higher 8 side considering the avocation of respondent no.1 coupled with the nature of injuries. Therefore the opinion formed by the learned Commissioner in this regard is found to be not correct. Therefore this Court is of the opinion there is a force in the submission made by the learned counsel for the appellant that if 35% of permanent total disablement is taken into consideration that would be the correct assessment of permanent total disablement considering the nature of injuries sustained coupled with the avocation. Therefore, the compensation in the present case is re-quantified and computed by considering the permanent total disablement at 35%. Accordingly, the quantification is re-modified as follows;-
For the age of respondent no.1 as 25 years is an undisputed fact and considering the salary at the rate of 60% out of Rs.3,600/- per month, the relevant factor at 216.91 and the permanent total disablement at 35%, then it would be -
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2160(60%)x216.91x35%=1,63,983.96, which is rounded off to Rs.1,64,000/-. Accordingly, the respondent no.1 is entitled compensation of Rs.1,64,000/-.
11. The appellant shall pay the above stated compensation to respondent no.1 with interest at the rate of 12% from the date of the accident as per the judgment of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo vs. Srinivas Sabata and another - [(1976) 1 Supreme Court Cases 289] and in Saberabibi Yakubbhai Shaikh and others vs. National Insurance Company Limited and others - [(2014) 2 Supreme Court Cases 298].
In view of the above reasoning the appeal succeeds in part and accordingly the appeal is allowed in part and disposed of.
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The respondent No.1 is at liberty to withdraw the amount whatever deposited in this Court.
Sd/-
JUDGE sn