Karnataka High Court
The New India Assurance Co Ltd vs Smt Hemanth Kumar S/O Sri Thippegowda on 22 September, 2012
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.318/2009 (WC)
BETWEEN:
The New India Assurance Co. Ltd.
Hassan, rep. by Regional Office
No.2-B, Unity Building Annex
Mission Road, Bangalore - 560 027
By its duly constituted Attorney. ... Appellant
(By Sri C.R.Ravishankar, Advocate)
AND:
1. Sri Hemanth Kumar
S/o Sri Thippegowda
Aged about 28 Years
R/a Bhuvanahalli Village
Hassan Taluk & District.
2. Sri Kumar, Major
S/o Sri Gurappa
R/o "Lakshmi Nilaya", I Floor
Gundegowdanakoppalu Road
Near Srinivasa Provision Store
Vidyanagar/Vivekanagar, Hassan. ...Respondents
(By Sri A.M.Balaji, Advocate for R1; R2-Service of notice is held
sufficient v.c.o.dt.09.12.2011)
This appeal is filed under section 30(1) of Workmen's
Compensation Act, against the judgment and award dated
04.11.2008, passed in WCA/NF/SR-46/2006, on the file of the
Labour Officer and Commissioner for Workmen Compensation,
Hassan Sub-division, Hassan, awarding compensation and etc.
This appeal coming on for admission this day, the court
delivered the following:
2
JUDGMENT
In this appeal filed by the Insurance Company, following substantial questions of law are raised:-
1. Whether the Commissioner for Workmen Compensation was right in accepting the relationship of employee and the employer between the petitioner and the Maxicab owner, in the absence of documentary evidence and particularly when there is no provision for conductor in maxicab?
2. Whether the Commissioner for Workmen Compensation was right in assuming the earning of the petitioner at Rs.3,000/- per month, when the owner of the maxicab filed evidence affidavit and specifically contended that he was paying only Rs.1,500/- per month to the petitioner?
3. Whether the Commissioner for Workmen Compensation was right in assuming the disability at 20% when the Wound Certificate speaks the injuries are simple in nature and in the absence of any operation underwent by the petitioner?3
4. Whether the Commissioner for Workmen Compensation was right in saddling the liability to pay unreasonable compensation to the petitioner against the appellant Insurance Company?"
2. I have heard Sri C.R.Ravishankar, learned counsel for Insurance Company and perused the records.
3. The learned counsel for Insurance Company would submit that claimant was a Conductor in the insured vehicle, which is a passenger carrying commercial vehicle. The risk of claimant is not covered under the policy. The learned counsel would submit that assessment of permanent physical disability is on higher side.
4. On careful consideration of copy of policy made available by learned counsel for Insurance Company, I find that Insurance Company has collected premium of Rs.25/- to cover the risk of one employee. Therefore, Insurance Company cannot be permitted to contend that risk of 4 claimant is not covered under the policy and it is not liable to pay compensation.
5. The learned counsel for Insurance Company relying on the evidence of insured (DW1) would submit that insured has admitted that he was paying salary of Rs.1,500/- per month to claimant and he was not paying batta.
During cross-examination, (DW1) has reiterated to the same version.
6. Admittedly, claimant was working as a Conductor. His job involved movement from place to place. Therefore, the case of claimant that he was getting batta of Rs.50/- per day looks probable.
The claimant had suffered extensive avulsion injuries on right forearm and right thigh. In the circumstances, assessment of permanent physical disability vis-à-vis loss of earning capacity by the Commissioner for Workmen's Compensation cannot be termed as excessive. There are no reasons to interfere with the impugned award. 5
7. Therefore, I pass the following:-
ORDER The appeal is dismissed. The amount deposited by Insurance Company shall be transferred to the Commissioner for Workmen's Compensation, Hassan Sub- Division at Hassan.
Sd/-
JUDGE SNN