Karnataka High Court
New India Assurance Co.Ltd,Raichur,By ... vs Syed Suban S/O. Syed Khaja Husain on 3 March, 2016
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 03RD DAY OF MARCH 2016
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
MFA NO.30265 OF 2010 (WC)
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
RAICHUR
BY ITS DIVISIONAL MANAGER
...APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. SYED SUBAN S/O SYED KHAJA HUSAIN
AGE: ABOUT 39 YEARS, OCC: EX-DRIVER
R/O SUKANI COLONY, RAICHUR
2. L.PADMAVATI W/O RAMSUBASH REDDY
AGE: MAJOR, OCC: OWNER OF THE
VEHICLE, TRANSPORT OPERATOR
R/O SHIVARAJ IT MIL
TIPPUSULTAN ROAD, RAICHUR
...RESPONDENTS
(BY SRI BASAVARAJ R. MATH, ADVOCATE FOR C/R1;
NOTICE TO R2 IS HELD SUFFICIENT V/O.DTD.27.08.15)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 30(1) OF WC
ACT, AGAINST THE JUDGMENT AND AWARD DATED 29.07.2009
PASSED IN WC NO.442/2008 ON THE FILE OF THE COMMISSIONER
FOR WORKMEN COMPENSATION AT RAICHUR, PARTLY ALLOWING
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THE CLAIM PETITION AND AWARDING THE COMPENSATION OF
RS.1,15,284/- WITH INTEREST AT 12% P.A.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Heard the learned counsel for the parties. This appeal is directed against the order passed by the Commissioner for Workmen's Compensation at Raichur in WCA/No.442/2008 dated 29.07.2009.
2. The brief facts of the case are that:
It transpires that the second respondent herein is the owner of the bus bearing registration No.KA-36/3709. The respondent No.1, the claimant was working as a driver in the said vehicle. On 10.04.2007, when he was proceeding from Manvi to Raichur on the instructions of the second respondent, a lorry coming from the opposite direction collided with the bus, as a result of which the claimant has sustained injuries. On these grounds, the claimant had filed 3 claim petition seeking compensation on account of injuries sustained in the accident.
3. The appellant contested the claim and denied the relationship of employer and employee inter-alia taking the defence that there was violation of terms and conditions of the insurance policy and as such the insurer is not liable to pay any compensation, if awarded.
4. The Commissioner, after considering the evidence placed by the parties allowed the claim petition awarding the compensation of Rs.1,15,284/- with interest @ 12% p.a. Being aggrieved by the said order, the appellant is before this Court. This Court at the time of admission of the matter has framed the following substantial questions of law.
i. Whether the claimant has proved that
there is relationship of employee and
employer between him and the owner of
the lorry?
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ii. Whether compensation awarded by the
Commissioner is in accordance with the
provisions of the Workmen's
Compensation Act? And
iii. For consideration of any other question of law which arises for consideration while hearing the appeal.
5. Learned counsel appearing for the appellant strenuously contended that Ex.P-9, the disability certificate said to have been issued by one Dr.Rajesh, does not contain the date. The wound certificate/Ex.P-6 indicates the injuries caused were simple in nature. In the circumstances, the Commissioner awarding the compensation of Rs.1,15,284/- is too exhorbitant contrary to the provisions of the Act. In support of his contention, the learned counsel placed reliance on the judgment of this Court in the case of The New India Assurance Company Limited By Division Manager V/s K. Somashekhar & Another, reported in ILR 2011 KAR 1880.
6. On the other hand, learned counsel appearing for the respondent would contend that this appeal, filed under 5 Section 30 of the Workmen's Compensation Act, 1923, (the 'Act' for short) is required to be considered only on the substantial question of law involved in the case. The arguments addressed by the learned counsel appearing for the appellant, at any stretch of imagination could not be considered as substantial question of law to invoke the provisions of Section 30 of the Act. It is further submitted that, as per Section 4(1) (c) (ii) of the Act, the amount of compensation shall be determined on the basis of the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. In such an event, the evidence led by the doctor, an expert in the medical field cannot be brushed aside. The Commissioner having extensively considered the evidence available on record has awarded the compensation, which is just and proper and does not call for any interference by this Court. 6
7. I have considered the rival submissions made by the learned counsel appearing for the parties and perused the records.
8. Though the matter is admitted to consider the substantial question of law, as framed at the time of admission as stated supra, now the learned counsel appearing for the appellant has restricted his arguments on the quantum of compensation awarded by the Commissioner as exorbitant vis-a-vis the injuries sustained by the workman in the course of employment.
9. I have perused Ex.P6 - Wound Certificate and also Ex.P9 - Disability Certificate. The wound certificate at Ex.P6 discloses that the injuries sustained by the claimant are simple in nature and the disability certificate indicates partial permanent disability of 25%. Though, this disability certificate does not bear the date as pointed out by the learned counsel appearing for the appellant and it is not the factor for assessing the quantum of compensation under the 7 Workmen Compensation Act. The doctor was examined as PW.2 and has deposed that patient took treatment with him and on the basis of the wound certificate, physical examination and also x-rays have been done, the disability has been assessed to the extent of 25% to the whole body. No substantial evidence is led by the appellant to discard this evidence. The Commissioner considering the evidence led by the parties more particularly, the evidence of PW.2 has assessed the quantum of compensation of Rs1,15,284/- which cannot be found fault with.
10. The judgment relied upon by the learned counsel appearing for the appellant is carefully perused by me. The Division Bench of this Court has considered the case wherein, the workman has awarded compensation of Rs.5,05,106/- for the unscheduled injuries sustained during the course of employment. Suspecting the verasity of the wound certificate and the disability certificate, the claimant and the doctor were summoned to the Court. The doctor who was present before 8 the Court had admitted that the disability certificate issued by him was incorrect. In such circumstances, this Court considering the disability certificate issued by the doctor proved to be a false certificate, certifying 100% disability, has reduced the compensation from Rs.5,05,106/- to a lumpsum amount of Rs.1,00,000/-.
11. In the present case, the disability certificate issued by the doctor indicates that the workman has permanent partial disability of 25% and same cannot be doubted unless cogent material is placed by the appellant to disapprove the evidence of the doctor. Considering the factual position of the instant case, the arguments advanced by the learned counsel appearing for the appellant would not be construed as questions of law muchless the substantial questions of law to be considered by this Court. However, in view of the questions framed by this Court at the time of admission, it would be beneficial to refer to the judgment of this Court in the case of THE NEW INDIA ASSURANCE CO. LTD., vs. 9 SMT.MAHANANDA AND OTHERS [2009 Kant M.A.C. 476 (Kant)] wherein, this Court has held that relationship of employer and employee is only a question of fact and could not be considered as substantial question of law. The appellant has not disputed the relationship of employer and employee between the employer and the claimant/workman. The compensation awarded by the Commissioner is in accordance with the provisions of the Workmen Compensation Act and does not call for any interference by this Court.
12. In the given circumstances, I do not see any merit in the appeal and the substantial questions of law framed are answered in favour of the workman and against the appellant.
Accordingly, the appeal stands dismissed. 10 The amount in deposit shall be transmitted to the jurisdictional Tribunal and the claimant is at liberty to withdraw the same.
Sd/-
JUDGE Msr/Srt