Karnataka High Court
The Manager vs Sri Neelakandan @ Neelakantan on 6 April, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 7884 of 2019
C/W MFA No. 8647 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 7884 OF 2019(ECA )
C/W
MISCELLANEOUS FIRST APPEAL NO. 8647 OF 2019
IN M.F.A.No.7884/2019:
BETWEEN:
SRI NEELAKANDAN @ NEELAKANTAN
S/O. POOJAYAN,
AGED ABOUT 22 YEARS,
R/O. TAMIL COLONY,
CHIKKAMAGALURU-577101.
...APPELLANT
(BY SRI. VENKATE GOWDA K., ADVOCATE)
AND:
Digitally
signed by
PANKAJA S 1. PROPRIETOR
Location:
HIGH DEVADANA ESTATE,
COURT OF
KARNATAKA R/O. BALEHONNUR,
CHICKKAMAGALURU DISTRICT-577101.
2. THE MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
PANDURANGA COMPLEX,
K.T.STREET, CHIKKAMAGALURU-577101.
...RESPONDENTS
(BY SRI. A.R.LAKSHMI NARAYANA, ADVOCATE FOR R-2;
SRI. SOMASHEKAR, ADVOCATE FOR R-1(VC))
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MFA No. 7884 of 2019
C/W MFA No. 8647 of 2019
THIS MFA IS FILED UNDER SECTION 30(1) OF ECA ACT
AGAINST THE JUDGMENT AND AWARD DATED:20.07.2019
PASSED IN ECA NO.05/2018 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE & JMFC, CHIKKAMAGALUR,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.8647/2019:
BETWEEN:
THE MANAGER,
THE NEW INDIA ASSURANCE CO. LTD.,
PANDURANGA COMPLEX, K.T.STREET,
CHIKKAMAGALUR-577 112.
REPRESENTED BY ITS REGIONAL MANAGER,
THE NEW INDIA ASSURANCE CO. LTD.,
REGIONAL MANAGER,
UNITY BUILDING ANNEX,
MISSION ROAD, BANGALORE.
...APPELLANT
(BY SRI. A.R.LAKSHMI NARAYANA, ADVOCATE)
AND:
1. SRI.NEELAKANDAN @ NEELAKANTA,
S/O POOJAYAN,
AGED ABOUT 23 YEARS,
R/AT TAMIL COLONY,
CHIKKAMAGALUR-577 112.
2. THE PROPRIETOR,
DEVADANA ESTATE, BALEHONNUR,
CHIKKAMAGALUR DISTRICT - 577 112.
...RESPONDENTS
(BY SRI. VENKATE GOWDA K., ADVOCATE FOR R-1;
SRI. SOMASHEKAR, ADVOCATE FOR R-2)
THIS MFA IS FILED UNDER SECTION 30(1) OF ECA ACT
AGAINST THE JUDGMENT AND AWARD DATED:20.07.2019
PASSED IN ECA NO.05/2018 ON THE FILE OF THE II
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MFA No. 7884 of 2019
C/W MFA No. 8647 of 2019
ADDITIONAL SENIOR CIVIL JUDGE & JMFC, CHIKKAMAGALUR,
AWARDING COMPENSATION OF Rs.13,28,915/- WITH
INTEREST AT 12 PER CENT P.A. FROM THE DATE OF PETITION
TILL ITS REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The insurer has filed the appeal questioning the liability fastened on it.
2. The claimant has filed the appeal seeking for enhancement.
3. As far as the appeal of the insurer is concerned, the principal contention advanced by the insurer is that the policy which had been issued to cover the risk of the estate had excluded the liability in respect of the workers, who had been engaged in shade lopping work and therefore, fastening of liability was improper.
4. Learned counsel for the employer Sri. Somashekar contends that this argument cannot be sustained in the light of the judgment rendered by the Hon'ble Supreme -4- MFA No. 7884 of 2019 C/W MFA No. 8647 of 2019 Court in Civil Appeal No.1128/2019 - M/s. Twenty First Century Media Private Limited vs. New India Assurance Company Limited. He highlights the fact that it was not in dispute that the insurer had been issued with policies to cover the risk of the employees and in the previous policy there was no such exclusionary clause indicated, but this clause was inserted without the knowledge of the employer and the Hon'ble Supreme Court in the case of M/s. Twenty First Century Media Private Limited has in identical cases held that the insurer would be liable simply because the earlier policy did not contain an exclusionary clause and once the policy was new, an additional clause cannot be inserted.
5. As regards liability, the learned counsel for insurer contends that the policy in question enabled liability of the insurer only to the extent of Rs.25,000/- and any sums incurred over and above would have to be borne by the employer. -5- MFA No. 7884 of 2019 C/W MFA No. 8647 of 2019
6. In the light of this contention, the following substantial questions of law that would arise for consideration in the appeal of the insurer is -
"1) Whether the Trial Court was justified in fastening the liability, insofar as medical expenses, entirely on the insurer?"
2) Whether the disability assessed at 75% to the whole body would be justified, in the light of the fact that the claimant had suffered paraplegia?"
7. The medical evidence on record indicates that the claimant had suffered disability which was assessed at 75% to the whole body. The evidence on record also indicates that the claimant had suffered paraplegia, which means that he had lost both his legs. If an employee who was working in an estate loses both of his legs, loss of earning capacity would have to be taken as 100% and not 75%. The question of law is thus answered in favour of the claimant.
-6-MFA No. 7884 of 2019 C/W MFA No. 8647 of 2019
8. The loss of earning capacity on the basis of the assessment of the whole body disability by the Trial Court would have to be taken at 100%. As a consequence, the claimant would be entitled to compensation of Rs.10,62,576/- (Rs.8,000/- x 221.37 x 60% x 100%) towards permanent disability.
9. The claimant is entitled for Rs.5,31,983/- towards medical expenses as per the medical bills.
10. Consequently, the claimant is entitled for compensation of Rs.15,94,559/- along with interest at the rate of 12% per annum from the date of petition till its realization.
11. The insurer would be liable to pay the compensation amount within one month from the date of receipt of copy of this judgment.
-7-MFA No. 7884 of 2019 C/W MFA No. 8647 of 2019
12. The employer is liable to pay interest at the rate of 12% per annum over the compensation amount to the claimant.
13. The learned counsel for insurer, however, contends that the policy which it had issued covered the medical expenses only to the extent of Rs.25,000/- as indicated in Ex.R-6.
14. The learned counsel for the insurer, however, contends that the policy which it had issued covered the medical expenses only to the extent of Rs.25,000/-, as indicated in Ex.R6. The Trial Court has awarded a sum of Rs.5,31,983/- towards medical expenses. In the light of the fact that the insurer is liable to pay the medical expenses only to the extent of Rs.25,000/-, the employer would be liable to pay balance amount of Rs.5,06,983/- towards medical expenses to the claimant. The second question of law is accordingly answered. -8- MFA No. 7884 of 2019 C/W MFA No. 8647 of 2019
15. After deposit, Rs.10,00,000/- shall be invested in Fixed Deposit in the name of the claimant in any Nationalised Bank for a period of five years with liberty to withdraw the periodical interest accrued thereon. After maturity, the deposit amount shall be realeased in favour of claimant without any further proceedings. The remaining amount along with interest shall be released in favour of the claimant through account payee cheque with proper identification.
16. The appeals are accordingly allowed in part.
Sd/-
JUDGE HNM List No.: 1 Sl No.: 36