Karnataka High Court
The Oriental Insurance Company Limited vs Sri Madhu on 19 October, 2010
Bench: K.L.Manjunath, B.Manohar
E
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE .iG13"" DAY OF OCTOBER, 2010
PRESENT
THE HONBLE MRJUSTICE K.L.MANJUNzfi'H ;f_
AND
THE HON'BLE MR. JUSTICE'»'BfI\}iANOf{A'R'~..v ,
MF'A.NO.2'788 01529.07 Nvc} V
BETWEEN:
The Oriental Insurance CoII1iia§jy* -.
Through its Regionai Qffice,_..__ .__ ' '
Leo shopping Complex, 'V
No.44/45, Resideney
Bangal0re«~56O
Represented Tits VA/I-21:r'1'e{g:,3_O1O*,'« .. ». .
Sri.K.Varadaraj'a1_1.'T _ = APPELLANT
Sri.B..€;.Seethaf31fie Ref), Advocate)
Aged 45_ . ye_.:--fi?S
S / 0.1c1.u"ma1*1,
"N0. 18,' Dargamma Temple Street,
V A .. f VKa1asipa1yam,
_ 'Banga1ore--2.
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2. Sri.M.1\/Eallikarjuna,
Major,
S / 0.Shri.M.Vishnu Murthy.
No.4/37, Temple Street,
Manapeta Post,
Rayachoti Manda}.
Kadapah District.[AP},
(Owner of the Vehicie)
(By Sri.Suresh.M.Latur, Adv for 2 it
f
dispensed with) _V H
MFA filed U/s. 30(1) of the.',::W2(_3 Aetdiagainst the
Judgment dated: 17 /01/gees p'as§§ed.eewc--3/NFC/CR»
34/2003 on the file of the LabQAt1f'v*{3fiic_ef'dead'Commissioner
for workmen comvperisatiqfilv' Bannerghatta
Road, Banga1ore;?.Q,,' legmpcijisatiefi of Rs.3,99,384/--
with interest @ 1'_A21'9'/(i;j'._;p._;;L:.v:/0822002 till deposit.
This shaving _t$e.e11'::'h»e4drd and reserved and coming
on for prqgiduncefnentdodf Jtadgement this day, BJVIANOHAR
J1, delivered
Insurance Company Limited, being
.eddi.itdaggfieved bymthe award dated 17-1-2006 made in cwc~
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3/NFC/CR--34/2003 passed by the Commissioner for
Workmerfs Compensation, Sub--Division--III. Bangalore',',flfialed
this appeal.
2. The brief facts of the case are as folloI.iIs3
The first respondent--claimar1__t a c3.a'ir;3.:4_peti'iion
before the Commissioner for «Cornpensation seeking compensation contending tljraltlé working as a eoolie in a lorry bearing Regj,stration- which belongs to the second nraslllgsetting a salary of Rs.8,000/-- pm; § t9~i§;sl.so/';"'p}£ar day. On 21-7-2002, after loading and proceeding towards Bangalore at aboiit the morning, due to the rash 'r1egl'i:g:enf;r..a.:dri\{ingn'of"th'e said lorry by its driver, the said lorry' near Devanahalli. The said lorry turtled and on the roadside. As a result of which, the sdsvtained crush injury on the right leg, grievous orrthe left hand and head and also to the right ear. 5"
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Immediately, after the accident. he was shifted to NIMHANS Hospitai and thereafter he was shifted to Popular Home. He had taken treatment there as inp_at'ient_~ _ 22422002 to '2'~s~2.002 for a period of :5ad;:;;=s.ri After discharge be has taken follow up treatment'A.as"per.'the of the Sector for a period of 6 months the > money for the treatment. Since during the course of emp1oy1neni,.A sought for compensation of ithte Workmen's Compensation t t t t
3. In pursuanceto issued by the Commissioner, the owner of exparte and Insurer filed Qbjmectionsi 'V:'Ifihex their objections denied the entire avezjnzeiits m_a?;de,tin ._ the claim petition and also denied the :'u"s..n_.o»ccurrer1ce c$f'£}':;¢ 'accident on 214-2002 at about 3.00 21.111. denied" the quantum of saiary the claimant was They have also contended that there is no éw 5 relationship of master and servant between the claimant and second respondent and sought for dismissal of the petition.
4. On the basis of the pleadings of Commissioner for Workmerfs Corripe11satiiLori.i: '.../_Vfra:med . ' necessary issues.
5. In order to prove caseg. examined himself as P.W.i andgot ma.rI§_ed Further, the claimantialsoit Eioctor to show the nature of injuries and disability' 'sijisiaii-iédpiby him.
6. The clairnant in his ex'a,rn-ination--in--chief contended that he. was about as on the date of accident he was gettingla» _sa1ar3r '0:f"Rs.4,500/-- p.rn. The accident took place employment while proceeding towards 'V7.13aii.'ga1ore" fromhviwiindupura due to the rash and negligent Ar 6 driving of the said lorry Due to the accident he has sustained permanent disability and he cannot open his mouth and chew the food and he cannot go to sunlight. Due to the injynfies, he sustained permanent disability and it has affeeted."pf--.h'ivs livelihood and he cannot do any manual work. also produced the copy of the FIR, chafge*she.et the driver, crime details and panchananiaas. to ~. Further, he has marked the Woun'd:E:ertifieate Vijiisehdarge V Sumrnary as Ex.P.6 and Fuftherddyhehas produced the xerox copy of the insurance Nothing contrary hgisddivibeein respondent from the claimant in the e--rossee:{ai'nii1_ati.oii. it 'hector'--- has aepoéed before the Court that due to the acei'cient_e,. 'ti:.é*--c,1ai'n2aiat has sustained injuries. On clinical radioiogiealhjlexarnination, the claimant has sustained " " following injuries.
/5% 7 (a.) Multiple Abrasions and Laurations of face, left leg and right ankle; and
(b) Concussive Head lnjury On clinical examination. the Doctor has fourltl' claimant has suffered following disabilf.ties';- . A' la} The patient complainecllilloflpainlii1 .;'ight"
lower limb and difficulty fight and movements of right also complained of pain i1'1'__4_i"ip;ht.'_'lchee'l§ant':.inability to open the mouth.
W of muscles of right lowerlimbl - l V :.{c]_ 'fen.§le11iess- Deformity of right M.fi'tl'1.x"j'()ii'1'[V linc tenderness of right Te'm.pero"l\/ia_1é§(iibular Joint; and év"
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(d) Terminal Restriction of joint movements of right shoulder by 45 degree 82; Total Restriction of Dorsiflexion of right ankle.
8. In the cross~examination, the Doctor has not treated the claimant. Howevenphe ti'1a_t.Vh'eV H' came to know about the treatment reeeii.%_ed'll on the basis of the Xerox copiesllofithe pfesc1'iptivon":..p'i'od(iced " it by him treatment received. by the:."cla'in_1antf'Floirther, the Doctor in the cross--eXatiiinationé'»Vlia§~Lidepnsed that the claimant has suffei'e.¢l'perr::1anent tesiiaupai 'physical disability of 12% of 5°/uouolllright upper limb which is about to 12%' body. He further deposed that in _of suffered by the claimant, he Tfigpolielllland do any other manual work. The Insui'ei"h_as oral and documentary evidence. O1ii__thle'..basis of the pleadings of the parties, the for Workmen's Compensation held that due to A« 9 the accident. the claimant has sustained injuries. The F1R, Charge sheet and Panchanama clearly show that the has sustained injuries due to the accident that _ 21«~7-2oo2. It is also held that the accident has place » during the course of employment. In i't..isA.'rher1t:i-onegdi that the claimant is a coolie. Hence, 1is...ent.it1ed for the compensation. _
10. With regard to quantum of_rcorI'1pensa.tion isconcerned, though the claimant contended-'th'£ift':hie a salary of Rs.4,5oo/-p';'hi';e; jbeen produced. The owner of theV"vehic1e-- 1:./"absent. in the absence of the same, the _V Co'1tii1"1.iSa..ionei~'.t' into consideration the to a coolie working in the lorries.
fixetcui-__t11eu of Rs.3,000/-p.m. Taking into t'V.:"'censidera,tion,~€~t)%A:of the said salary, and age of the claimant " also based on the opinion of the Doctor that he cannot do Eof coolie. and functional disability at 100%, the A ]{} Commissioner has awarded compensation of Rs.3,99,384/- (2,160 X 184.90 X100). Further awarded interest of 12'/3 from the date of ciaim petition. Since the said vehicle is co\vfer¥e'd.by insurance, the Insurer is liable to pay con1pensatioiji;"* « .. 5 _»_ C
11. The Insurer being aggrieved by avs.ra?rd'ai Commissioner for Workmen"s«.__ Cornpensati'oei1,e_V_H dateddii» 17~«~1-2006, preferred this appeal. it
12. Sri.B.C.Seetharama Rao-i.i'earri'ed appearing for the appe11ant"'Co1§t_endfed C award passed by the Commissionverppii is p H Workmen's Compensation Act. Thepvlorryiixéifasiv ca.r~riii11"§.,.gWoods from I-iindupura which is policy does not cover the risk of I1'1te1-"stated hence the claimant is not entitled any'--~..__ coviiipuénsation. The learned counsel further it that taking into consideration the wages of pm. and functional disabiiity of 1.00%, the A« 11 Commissioner has awarded compensation of Rs.3,99.384/-- which is contrary to law. Further, the rate of interest 2% pa. from the date of claim petition award'e:(i'*--<'by...4._::
Commissioner is aiso contrary to law and soia.g'nt:ffor'-setting aside the award by allowing the appeal,
13. On the other hand, Sri.Snr'es:1*i--.V_»M. learned counsel appearing for the---_responcievnt'w-contended that the Commissioner taking. Vinto.7"eo.1?i'sideration wages being paid to the in.._«-the lorries, on the basis of the expert to the effect that the claimant do taking into consideration functional' disability' of. Commissioner has awarded not liable to be interfered with by this"'I+ion_a'.ble sought for dismissal of the appeal to he-onfivr1'n_if..he order passed by the Commissioner for C C' " Vi/Orkmen's Compensation.
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14. We have carefully gone through the arguments addressed by the learned counsel for the parties and thevoral and documentary evidence lead by the parties.
15. It is not in dispute that the injuries on 21-'7-2002, at about 3:.Q0 a.n1._ due to.lti1e:'accide'ntl'*2' of the lorry bearing Registration_ N"o.AP'--V'O4lf.U--1979. Immediately after the accident, was shifted to NIMHANS hospital. The Poli.Cef"'ha\re rjegisterejdl*V'a case agaisnt the driver of the the claimant has been shoWri"las' insurer denied the averments the owner of the vehicle has not denied'lthefaccident.";VThe Police report clearly show lie-jy:e}l.icle'i~ }oearing"""Registration No.AP- O4 / U-- 1979 met o.n}~21--7--2002. Hence. it is clear that the T'V.it"claimant-..4__has- ~s1jj'stained injuries due to the motor vehicle "'73;'c'cident. Sivnee the said vehicle is covered by the insurance, is liable to compensate the claimant. Aw
16. With regard to the quantum of compensati--o_'I1i"iS concerned, though the Claimant contended tliiétt ' getting a salary of Rs.3,000/~p.m. and"batta--'_; ll day, no material has been produced that ._ the vehicle was paying the said thvelvehicle has not supported the claimyggof lritrheliabsenoe of the same, the Commissioner Wages Rs.3,600/--p.m. beingygthe coolies in the lorries. Taking of the claimant as 40 years, the Commissioner has awarded. ..~~The Doctor in his cross- examination depes_ed_that.'l claimant has sustained the iii-esidugal disability at 12% of right lower limb 'V1 upper limb, which about 11% to 12% of Who}-e__Vbody' Commissioner has taken 100% disability " "on the ground that the Doctor opined that in View of the the claimant cannot work as a Coolie. Looking at 5"
the injuries sustained and disability suffered, the percentage of disability assessed by the Commissioner is contrary:'t.o'-the law.
17. The Doctor in his cross--examinat1Cin'* the claimant cannot do the worl<:_V:of__coollievjwithlv-the'disability'Vif suffered by him. I-Iowever, he hays-not said he 'cannot do any other work and also there of movement.
However, the Docto:f"h._as that-.the patient complained of pain in the. difficulty to lift right shoulder in of doing some other work. Henleeul ':the"--.lft:in;lc'tional disability at 100% is contrary to lam." on the: basis of the injuries sjiiffer§d.;.jlyvefakeééintoconsideration the functional disability as " that claimant is entitled for the ivivFcompensatiori~'oi?l2s.1,99,692/-- [i.e. 2,150 x 184.90 x = fl }.l,l99,692). Hence, We award compensation of ,5"
as Rs.1,99,692/-- as against the compensation of Rs.3,99,384/-- awarded by the Commissioner.
16. In so far as the rate of interest is eoncerned;.fhe'Ho'n'b1_e " 2 it Supreme Court in the judgement reported 3717 in the case of THE ORIEI-ITAL 1N's1JRANe:;E LTD, V/s MOHD. NASIR Aivo_ :dC:o%15nE;Rs;r that the claimant is entitled to inte're:StAatL 7.5% p.a. from the date of petition tiil the date thereafter at the rate of 12%
19. Hence, We ' C 1_ is R. The§eppee1 is The award dated 17-1-2006 passedi'the-,_CoInVrnissioner for Workmen's Compensation is :3,_Jmodified"'eAho1d--iijigVA'1'vthat the claimant is entitled for the _$»..eori1pensatio'n:. Rs.1,99,692/-- as against the Rs.3,99,384/- the Commissioner. Further, the claimant is ,5"
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entitled for interest at the rate of 7.5% p.a. from the date of claim petition till the date of passing the award and thereafter at 12% p.a. tifl the date of deposit.
The amount in deposit if any}: the' Commissioner for Workmerrs Cogdipensaition, Su3!:§¥f)ji?.risioI31~IIl, _ > Bangalore, forthwith.