Karnataka High Court
United India Insurance Co.Ltd vs Timmareddy S/O Verupanna on 3 April, 2012
Author: B.Manohar
Bench: B.Manohar
*
I
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 3" DAY OF APRIL. 2012
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
M.F.A No.30621/2009 (WC)
BETWEEN:
United India Insurance Co. Ltd..
Represented by the Divisional
Manager. United Tndla Insurance
Co. Raiclnir. .. Appellant
(By Sri R V Nadagouda. Adv.)
AND:
1. 1'immareddy, s/o.Verupanna,
Age 35 years. Occ:Ex-Hamal,
R/o.Vlllage Obalapur,
Tq.Lingasugur, Dist. Raichur.
2. T M Jeevaratnarn.
Occ:Owner of Lorry
R/o.H No.33/20 Koul
I3azar. Bellary. ... RESPONDENTS
(By Sri Basavaraj R Math. Mv. for RI)
F
,.7
•1
This M.F.A. is filed under Section 30(1)
of the
Vorkmcn's Compensation Act against the
judgment and
order dated 5.12.2008 passed In WCA/CR/4
48/2007 by the
Commissioner for Workmen's Compen
sation, Raichur
1)1st net, Raichur.
This M.F.A. having been reserved for judgment
coming
on for pronouncement of judgment this
day, the Coun
delivered the following:
JUDGMENT
The United India Insurance Co. Ltd. being agg rieved by the judgment and order dated 5.12.2008 In No.WCA/CR/448/2007 passed by the Lab our Officer and Commissioner for Workmen's Compensation. Raichur District. Raichur. (hereinafter referred to as WCC') has filed this appeal.
2. The facts of the case are as follows:
The 1' respondent ified the claim petition before the WCC contending that he was working as a Ifamali of the Tipper bearing No.KA-34/3672 belonged to the 21d respondent. On 13.3.2004. on the instruction s of the owner .3 of the vehicle after loading the sized stones in Obalapura. the said vehicle was proceeding towards Bellary. Due to the breaking of stairing rod, the driver of the 'ripper lost cont rol over the vehicle and dashed against a road side tree. In view of the accident, the claimant sustained fracture of fibula and patela. Immediately, he was shifted to the Government Primary Health Centre, Thorangal. where he has taken treatment. Thereafter. he has taken further treatment in a private hospital. Due to the accident, he cannot work as a hamali. At the time of accident, he was aged about 35 year s and earning Rs. 150/- per day. Inspite of the request made to the owner of the vehicle, he did not pay the compensation .
Hence. the claim petition was filed seeking for compensation .
3. In pursuance to the notice issued by the WCC, the owner of the vehicle entered appearance and filed objection s statement admitting the accident occurred on 13.3.2004 and the l' respondent was working as 1-larnali of Tipper bearing 4 No.KA-34/3672 belonged to him. He was paying a sum of Rs. 150/- per day. He denied the nature of iqjuries sustained by the claimant. Since the vehicle is covered by the insurance, the Insurer has to compensate the claimant and sought for dismissal of the claim petition against the owner of the vehicle.
4. The Insurer filed objections denying the entire averments made in the claim petition contending that there Is no relationship of master and servant between the claimant and the owner of the vehicle. No document has been produced before the WCC to show that the claimant has sustained injuries In the road traffic accident that occurred on 13.3.2004 and the owner of the vehicle was paying him a sum of Rs. 150/- per day. Due to the rash and negligent driving of Tipper by its driver, the claimant sustained injuries. Hence, for the negligence on the part of the driver, the Insurer cannot be held liable to pay the compensation though the 5 vehicle is covered by Insurance. Hence, the Insurer sought for dismissal of the claim petition against them.
5. On the basis of the pleadings of the parties, the WCC framed the necessary Issues.
6. The l' respondent in order to prove his case examined himself as PWI and got examined Dr.Lakshminarayan, who issued the disability certificate to the jst respondent as PW2 and got marked the documents as Exs.Pl to P7 and Exs.P18 and 19, wound certificate and disability certificate respectively. On behalf of the Insurer. Sri Jagannath. Sr. Assistant, United India Insurance Co. Ltd. examined as RW1 and got marked the Insurance policy as Ex.Rl.
7. The claimant In his evidence deposed that he was working as a Hamali in the Tipper belonged to the 2nd respondent. On 13.3.2004. due to the breaking of stairing rod. the driver of the vehicle lost control over the vehicle and ,' clashed against a road side tree. In view of the Injuries sustained by the claimant, he cannot work as a Hamali. He got marked FIR. charge sheet, driving license, insurance policy of the vehicle, wound certificate, disability certifIcate and RC book of the Tipper as Exs.P1 to P7. Though he was cross-examined by the insurer, nothing contrary has been elicited in the cross-examination. The doctor, who has issued the disabifity certificate, in his evidence deposed that in view of the mad traffic accident occurred on 13.3.2004. the claimant sustained fracture of left fibula and patella. On clinical examination of the claimant, he found that there is mal-union of fractured portion. In view of mal-union of fractured portion, he cannot lift heavy objects. The doctor has assessed the loss of earning capacity to an extent of 4016. 11w Insurer in his evidence deposed that the accident has occurred due to negligence on the part of the driver of the Tipper. Hence, the Insurer is not liable to pay compensation. He got marked the copy of insurance policy as Ex.Rl
8. On the basis of the pleadings of the parties and oral and documentary evidence and other exhibits produced by the parties, the WCC held that the claimant has sustained injuries In the road traffic accident that occurred on 13.3.2004 due to the breaking of stairing rod. Initially, he has taken treatment in the Government Primary Health Centre. Thereafter he has taken treatment in a private hospital. The owner himself admitted that the claimant was working as a Hamali in the Tipper belonged to him. Hence. the WCC held that there exists relationship of master and servant between the claimant and the owner of the vehicle. Though the claimant claimed that he was earning daily wages of Rs. 150/-. no document has been produced. In the absence of the same, the WCC taking Into consideration the minimum wages being paid to the cleaner has taken the salary of Rs. 1.560/-p.m. and applying the relevant factor of 199.40 and taking into consideration of loss of earning capacity to an L M extent of 40% has awarded compensation of Rs. 1,24,425/- with interest at 12% p.a. The Insurer being aggrieved by the order passed by the WCC has preferred this appeal.
9. Sri R V Nadagouda, the Advocate appearing for the appellant contended that the order passed by the WCC Is contrary to law. No document has been produced before the WCC to show that the claimant has sustained injuries in the road traffic accident that occurred on 13.3.2004. The claimant was travelling as an unauthorised passenger in the goods vehicle. Hence, he Is not entitled for compensation. Though the accident occurred in the year 2004. the claim petition was flied in the year 2007. The WCC ought not to have entertained the claim petit Ion. Further, the loss of earning capacity assessed by the doctor is contrary to law. The doctor who assessed the disability Is riot the doctor who treated the claimant. Hence, the disability certificate Issued by the doctor cannot be believed. Therefore, the Advocate 4% 9 appearing for the appellant sought for setting aside the same by allowing this appeal.
10. On the other hand, Sri Basavaraj R Math, the Advocate appearing (or the 1st respondent/claimant contended that the WCC after considering the oral and documentazy evidence produced by the parties and taking Into consideration the police report and the objection filed by the owner of the vehicle, held that due to the breaking of stairing rod. the Tipper was met with an accident and the claimant sustained Injuries. The doctor In his evidence deposed that there Is fran tire of left fibula and fracture of left patella. The claimant being the Hamali of Tipper in view of the said &acturc. he cannot work as Hamall. Accordingly, the doctor has assessed the loss of earning capacity to an extent of 35%. Therethre. he submits that there is no infIrmity or irregularity in the order passed by the WCC and sought for dismissal of the appeal.
I0
11. 1 have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence prodi iced by the parties.
12. Upon hearing the learned counsel appearing for the parties. the only point that arises for consideration In this appeal is:
Whether the order passed by the WCC requires interference by this Court?
13. The records produced by the parties and the evidence adduced by the parties clearly disclose that the claimant was working as Hamali in the Tipper belonged to the 2zId respondent. While transporting the sized stones from Obalapur to Bellary, due to the breaking of stairing rod, the Tipper had met with an accident and the claimant sustained the injuries. The owner of the vehicle himself admitted that the claimant was working as a Hamali. The Insurer has not disputed the accident of the Tipper. Hence. it is clear that the II claimant was working as a Hamali in the said Tipper and there exists the relationship of master and servant between t he claimant and the owner of the vehicle.
14. Though there was delay in filing the claim petition, the WCC after considering the contentions of the parties condoned the delay In filing the claim petition. Therefore. it is not open to the Insurer to raise onceagain the issue of delay in this appeal.
1 5. With regard to the quantum of compensation is concerned. the doctor, who has issued the disability certificate, in his evidence deposed that due to the fracture of fibtila and patella. it is clifilcult to the claimant to liii the heavy objects. The doctor deposed that due to the fracture, the claimant cannot work as a Hamali and lift heavy objects. He assessed the earning capacity to an extent of 40%. On the basis of the said assessment of the loss of earning capacity, the compensation has been awarded by the WCC. Looking .4 12 Into the Injury sustained by the claimant, the loss of earning capacity assessed by the doctor is erroneous In law. There cannot be loss of earning capacity to an extent of 40% Ibr the Il-acture of left libula and left patella. The doctor who had Issued the disability certificate Is not the doctor who treated the claimant. On the other hand. Dr.Lakshminarayana. MD. has only assessed the disability on the basis of the wound certificate and medicines prescribed by other doctors. Hence, the order passed by the WCC requires modification insofar as the assessment of loss of earning capacity. The claimant was aged about 35 years as on the date of accident. At the young age. there is no difficulty for union of fractured portion. Hence taking Into consideration the loss of earning capacity to an extent of 35%, the compensation has to be reassessed. Hence, the claimant Is entitled for compensation of Rs. 1.08.872/- as against Rs. 1.24,425/- awarded by the WCC. Accordingly. I pass the following:
'4, 13 S a ORDER The appeal is allowed In part. The claimant Is entitled for compensation of Rs. 1.08.872/- as against Rs. 1.24.425/-
awarded by the WCC. Accordingly, the Judgment and order dated 5.12.2008 passed In WA/CR/448/20O7 by the Commissioner for Workmen's Compensation. Raichur District. Raichur is modified. The remaining portion of order of the WCC is undisturbed.
The amount in deposit be transferred to the Commissioner for Workmen Compensation, Raichur District.
Raichur.
saP JUDGE Bkm.