Karnataka High Court
The Branch Manager vs Allabakash on 29 October, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.1832/2010 (WC)
C/W
M.F.A Crob.NO.89/2010 (WC)
M.F.A.NO.1832/2010
BETWEEN:
The Branch Manager,
The Oriental Insurance Co. Ltd.,
Davanagere
And also
Main Office
The Oriental Insurance Co. Ltd.,
44/45, Residency Road,
Leo Shopping complex,
Bangalore-560 025. ... Appellant
(By Smt. Mamatha, Advocate for Sri. E.S.Indresh,
Advocates, Associates)
AND:
1. Allabakash
S/o Abdul Vazid,
Aged about 28 years
Residing at 4th Cross
LBS Nagar
Basapura Road,
Davanagere.
2
2. Ajith Rayachur,
S/o Rayachur,
Major,
Owner of lorry
Bearing No.KA-17-A-840,
Davanagere. ... Respondents
(By Sri. Mahesh R Uppin, Advocate for R-1;
Notice to R-2 served)
This Appeal is filed Under Section 30(1) of W.C.
Act against the order dated 22.12.2009 passed in
WCA:18/2008 on the file of the Labour Officer an
Commissioner for Workmen Compensation, Davanagere
District, Davanagere awarding a compensation of
Rs.1,29,168/- with interest @ 12% p.a.
M.F.A.Crob. NO.89/2010
BETWEEN:
Allabakash
S/o Abdul Vazid,
Aged about 28 years
Residing at 4th Cross
LBS Nagar
Basapura Road,
Davanagere. ...Cross Objector
AND:
1. Ajeeth Raichur,
S/o N.Raichur,
Owner of lorry
Bearing No.KA-17-A-840,
Davanagere.
3
2. The Branch Manager,
The Oriental Insurance Co. Ltd.,
Davanagere ...Respondents
This M.F.A.Crob. is filed Under Order 41 Rule 22
of CPC against the judgment dated 22.12.2009 passed
in LOD/WCA/CR-18/2008 on the file of the Labour
Officer and Commissioner for Workmen Compensation,
Davanagere District, Davanagere allowing the claim
petition for compensation and seeking enhancement of
compensation.
This Appeal and M.F.A. Crob are coming on for
Admission this day, the Court delivered the following:
JUDGMENT
By consent of learned advocates appearing for parties, matter is taken up for final disposal since records of the Commissioner for Workmen's Compensation has been secured.
2. I have heard the arguments of Smt.Mamatha, learned advocate appearing for Sri E.S.Indresh for appellant and Sri.Mahesh R Uppin, learned Advocate appearing for insurer. 4
3. It is the contention of Smt.Mamatha, learned Advocate appearing for insurer that a false claim was lodged by the workman seeking compensation based on such false complaint his claim has been examined by Commissioner erroneously. She would draw the attention of the Court to Ex.R-2 (2) namely MLC register of Bapuji Hospital, Davangere wherein it has been stated that injuries sustained by the workman was on account of a fall from height on 02.09.2007 at 2:30 PM near Pooja International Hotel. She would also draw attention of the Court to the evidence of P.W.1 wherein he has admitted in his cross-examination that he does not know the name of the shop where goods were to be delivered and this itself is an indicator of the fact that evidence of workman is not to be believed inasmuch as if he was a driver in the said vehicle he would have known where goods were to be delivered. She would also contend though workman has stated that he took treatment at Bapuji Hospital, Davanagere in his evidence, evidence in this regard was not produced. 5 These chain of events according to her, would indicate that it is a false claim lodged by workmen. She would draw attention of the Court to Ex. P-6 wherein name of the doctor who treated the workman has been struck off and hence it has to be inferred that documents produced by the claimant have been fabricated to snatch an award from the Commissioner by lodging a false claim. On these grounds, she contends that substantial questions of law formulated by the insurer in the appeal memorandum for being adjudicated are to be framed and answered in favour of the insurer.
4. Per contra, Sri Mahesh R Uppin, learned Advocate appearing for workman would not only support the finding recorded by the Commissioner that workman had sustained injury on account of a fall from lorry and said finding recorded by the Commissioner is in consonance with the documentary evidence tendered by the workman and there is no infirmity whatsoever in the said finding. He would elaborate his submission by 6 contending that compensation awarded by the Commissioner is on the lower side and he contends that disability sustained by the claimant though opined by the doctor is at 30% to 35% it ought to have been considered at 100% as his incapacity to earn as a driver in future, as such, Commissioner ought to have taken disability at 100% and awarded compensation accordingly. Hence, he prays for allowing cross- objections filed by the workman and dismissing the insurer's appeal.
5. Having heard the learned Advocates appearing for the parties. I am of the considered view that following substantial questions of law would arise for my consideration in this appeal:
(1) Whether claim petition filed by workman under Section 22 of Workmen's Compensation Act, 1923 was based on false, fictitious records; and whether records produced by the workman as well 7 as insurer would indicate that there was no such road accident that occurred on 02.09.2007 as claimed in the petition enabling the workman to seek compensation which was to be indemnified by the insurer?
(2) Whether quantum of compensation with interest awarded by the Commissioner is just and proper or it requires to be modified?
RE: SUBSTANTIAL QUESTION OF LAW No.(1):
6. Since very accident in question and injuries sustained by the workman is seriously disputed by the insurer, said substantial question of law No.(1) formulated herein above is examined, adjudicated and answered in the following manner:
It was the specific contention of the workman that on 02.09.2007 on the instructions of his employer, he got loaded mini truck bearing registration No.KA-17- 8 A-840 with scrap materials in front of Pooja International Hotel, Davanagere and after getting it loaded at 2.30 p.m. , he directed the cleaner to tie the ropes, for which the cleaner sought his help. While tying the rope after having climbed over the loaded vehicle, he fell down from the truck by accidental slip and sustained grievous injuries. He also stated that he went to a private doctor with the help of the cleaner- Sri Suresh and later went home to take rest as advised by doctor. He has also stated that on account of the pain having aggravated and when it became intolerable, he took treatment at Bapuji Hospital, Davanagere on 10.09.2007 and as such, he sought for compensation contending that injuries sustained by him was during the course of employment and it arose out of the employment.
7. Employer appeared and filed statement of objections and admitted that workman was working as a driver under him and also admitted that injuries 9 sustained by him was in the course of employment. However, insurer filed statement of objections denying the averments made in the claim petition and put the workman to proof of the same. In fact, employer has also answered interrogatories of the insurer by replying to the same on 31.10.2008 as evidenced from the records. Evidence of the workman is on the same lines of averments made in the claim petition.
8. Records produced by both the parties before Commissioner when perused, would indicate that as per Ex.R-2(4) which is outpatient record of Bapuji Hospital an entry has been made on 3.9.2007 to the following effect:
"c/o pain low back h/o fall from the top of lorry-
yesterday."
Nature of treatment suggested, X-ray taken, and the report thereof has also been reiterated and workman was directed for review at Ortho-A after one month. Very 10 same Exhibit would also indicate that on 10.9.2007 workman has been examined in the OPD and was advised admission to Ortho department and he was admitted to Ward No. 217.
9. Ex. R-2(2) very heavily relied upon by learned Advocate appearing for insurer would also clearly indicate that it is not a single entry "Fall from height on 2.9.2007 at about 2:30 PM" but it would also indicate that workman was a driver in the Canter lorry and while working with conductor to tie the rope on the top, he suddenly fell down from said lorry from a height about 10 feet and as such he took treatment at Bapuji Hospital OPD. Further, admission record of Bapuji Hospital including Case sheet history relating to the period of admission till discharge would also indicate that though workman was advised for admission, on account of financial stringency pleaded by him, he did not get admitted and as such, first stage of doubt which was canvassed by the learned advocate appearing for 11 insurer to doubt the genuineness of the accident in question having occurred and consequential disability suffered by workman would get allayed by documentary evidence noticed herein above.
10. Admission intimation at Ex. R-2(1) forwarded by Hospital authorities to the jurisdictional police intimating that it is a MLC case would no doubt indicate that an entry has been made as wherein 'Fall from height' has been indicated and this entry by itself, would not be a factor to disbelieve that there was no accident and there was no injury sustained by the workman, in as much as, four words found in the said intimation namely, accident/assault/poisoning/burns, only the word 'accident' has been highlighted and other "three words" have been "struck off" by the Hospital authorities. Hence, it has to be necessarily held that injury sustained by the claimant was on account of the accident namely fall from the top of the vehicles. 12
11. Now turning my attention to the oral evidence tendered by the workman it would indicate that he has no doubt admitted that he was treated by Dr. Sanjeevappa and had not produced any documentary evidence in this regard and this by itself would not be a ground to disbelieve his evidence since. Other documentary evidence available on record would clearly indicate and prove that workman had a fall on 02.09.2007 and had been examined at Bapuji Hospital as per OPD card Ex. R-2(4) on 03.09.2007. Hence, a stray sentence or an isolated admission by workman would not be a factor to discard the entire evidence in this regard. On the other hand, statement made by the workman in the claim petition would clearly indicate that immediately after he fell down from the lorry, he had visited a nearby doctor with the cleaner's assistance. On account of the said statement found in the claim petition, obviously learned counsel for the insurer has cross-examined the workman as to name of the doctor who treated him and he has replied that Dr. 13 Sanjeevappa had treated him initially. Workman has not relied upon the evidence of said doctor nor he has contended that on account of said doctor assessing his disability he is claiming compensation. He has not relied upon the evidence of Dr. Sanjeevappa. When that being the position, question of disbelieving other overwhelming documentary evidence available on record does not rise.
12. Discharge summary or discharge card marked as Ex. P-6 wherein the entry of doctor's name having been struck off and in place of the same, the words "Ortho A' having been entered is found fault with by the learned advocate appearing for insurer to contend that records have been fudged and as such claim of the workman has to be disbelieved. It does not detain this Court too long to discard said contention for the reason that said doctor who produced the said document has been examined as P.W.2. He has stated 14 in his cross-examination dated 14.05.2009 to the following effect.
"¤±Á£É C-3 gÀ°è qÁ|| ¸ÀvÉåÃAzÀægÁªï aQvÉì ¤ÃrzÀ §UÉÎ £ÀªÀÄÆzÀ£É EgÀĪÀÅzÀÄ ¤d, UÁAiÀÄzÀ ¥ÀæªÀiÁt¥ÀvÀæ ªÀÄvÀÄÛ ©qÀÄUÀqÉ aÃn DzsÁgÀzÀ ªÉÄÃ¯É CfðzÁgÀ£ÀÄ gÀ¸ÉÛ C¥ÀWÁvÀzÀ°è UÁAiÀÄUÉÆArgÀÄvÁÛgÉAzÀÄ C¸ÀªÀÄxÀðvÁ ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è £ÀªÀÄÆ¢¹gÀÄvÉÛãÉ, ¤±Á£É C-6 ªÀÄvÀÄÛ C-3 gÀ°è Dgï.n.J zÀ°è UÁAiÀÄUÉÆArgÀÄvÁÛgÉAzÀÄ £ÀªÀÄÆzÀ£É EgÀĪÀÅ¢®è, DzÀgÉ ¯Áj ªÉÄðAzÀ ©¢ÝgÀĪÀÅzÁV £ÀªÀÄÆzÀ£É EgÀÄvÀÛzÉ, ¤±Á£É C-6 gÀ°è qÁ|| ¸ÀvÉåÃAzÀægÁªï C£ÀÄߪÀ eÁUÀªÀ£ÀÄß ºÉÆqÉzÀÄ ºÁQgÀĪÀÅzÀÄ ¤d, D¸ÀàvÉæ¬ÄAzÀ zÁR¯É ¤ÃrzÁUÀ PÉ®ªÀÅ zÁR¯ÉUÀ½UÉ ¸ÀA§A¢ü¹zÀ ªÉÊzÀågÀÄ ¸À» ªÀiÁrgÀÄvÁÛgÉ, PÉ®ªÉǪÉÄä ¸À» ªÀiÁqÀÄvÁÛgÉ PÉ®ªÉǪÉÄä ªÀiÁqÀĪÀÅ¢®è, ¤±Á£É C-6 gÀ°è £ÀªÀÄÆzÀ£É ªÀiÁrzÀ £ÀAvÀgÀ £ÀªÀÄÆzÀ£É ªÀiÁrzÀªÀgÀÄ CzÀgÀ PɼÀUÉ ¸À» ªÀiÁrgÀÄvÁÛgÉ C£ÀÄߪÀÅzÀÄ ¸Àj, ¤±Á£É C-6 gÀ 4£Éà ¥ÀÄlzÀ°è PÉÆ£ÉAiÀÄ ¨sÁUÀzÀ°è §gÉ¢gÀĪÀ ºÀ¸ÁÛPÀëgÀ £À£ÀßzÁVgÀÄvÀÛzÉ, ªÀÄÄAzÀĪÀgÉzÀÄ C£ÀĸÀgÀuÁ aQvÉìUÉ §AzÀ ªÉÃ¼É ¤±Á£É C-6 zÁR¯ÉAiÀÄ°è £Á£ÀÄ PÉ®ªÀÅ £ÀªÀÄÆzÀ£É ªÀiÁrgÀÄvÉÛãÉ, 10-9-07 gÀAzÀÄ ¨Á¥ÀÆf D¸ÀàvÉæAiÀÄ°è £Á£ÀÄ CfðzÁgÀ¤UÉ aQvÉì ¤ÃrgÀĪÀ «ZÁgÀªÀ£ÀÄß ¤±Á£É C-7 ªÀÄvÀÄÛ F £ÁåAiÀiÁ®AiÀÄzÀ°è EAzÀÄ ¸À°¹ è zÀ ¥ÀæªÀiÁt¥ÀvÀæzÀ°è £ÀªÀÄÆ¢¹gÀÄvÉÛãÉ, ¤±Á£É C-7 gÀ ¥ÁågÀ 2 gÀ°è §gÉzÀ ¸ÁgÁA±À K£ÀÄ CAzÀgÉ F UÁAiÀiÁ¼ÀÄ«UÉ £Á£ÀÄ aQvÉì ¤ÃrzÀÄÝ CxÉÆÃð K AiÀĤmï JAzÀÄ CxÀð §gÀÄvÀÛzÉ, £Á£ÀÄ ¸ÀºÀ D «¨sÁUÀzÀ°è PÀvÀðªÀåzÀ ªÉÄÃ¯É EzÉÝ£ÀÄ, CfðzÁgÀ£ÀÄ JAzÀÆ £À£Àß §½ aQvÉì ¥ÀqÉAiÀÄzÉà EzÀÝgÀÆ DvÀ¤UÉ ¸ÀºÁAiÀÄ ªÀiÁqÀĪÀÅzÀPÉÆÌøÀÌgÀ ¤±Á£É C-7 ¤ÃrgÀÄvÉÛÃ£É C£ÀÄߪÀÅzÀÄ ¸Àj C®è, 10-9-07 gÀAzÀÄ D¸ÀàvÉæUÉ aQvÉìUÉ zÁR¯ÁVzÀÄÝ,"15
In view of the doctor having stated that in cases where the unit doctor were to treat the patient, name of the unit would be entered and the same being available on record, nothing can be found to be suspicious in the said striking off the name of doctor and entering the words extracted herein above. For this reason also contention of learned Advocate appearing for insurer cannot be accepted.
13. Insofar as contention regarding lodging of the complaint belatedly that is, after eight days from the date of accident is concerned, when examined with reference to the records, it would clearly indicate that on being advised by the Doctor at Bapuji hospital on 03.09.2007 to get himself admitted, workman had pleaded his inability to be an inpatient due to financial difficulties. However, when the pain became intolerable and continued to persist despite medication, he again appeared before the Doctor on 10.9.2007 and got 16 admitted to the Hospital, Hospital authorities immediately thereafter have intimated the jurisdictional police by intimation dated 10.09.2007 by treating it as Medico-legal case and thereafter investigation was taken up. Therefore, lodging of the complaint or furnishing of the statement by the workman to the jurisdictional police on 10.09.2007 i.e., after a period of eight days would not be a factor which would have swayed either before the Commissioner or before this Court to uphold contention of the insurer. Hence, said contention stands rejected.
14. For these reasons, substantial question of law No.(1) formulated herein above is required to be answered in the negative by accepting the finding recorded by the Commissioner.
RE: SUBSTANTIAL QUESTION OF LAW NO(2):
15. On account of injuries sustained by the workman, he has been unable to carry on normal duties 17 as that of a truck driver. Doctor who has been examined as P.W.2 has clearly stated after evaluation of the workman, both clinically and radiologically he had found from X-ray report that workman had sustained fracture of L-1 by 30%-40%. It is also not in dispute fracture of L-1 bone is malunited as per X-ray report. On account of the said injuries sustained and consequential disability suffered, workman has been unable to lift heavy materials, pass urine in normal manner or do any manual work and as such, Doctor has opined that there was permanent disability to an extent of 30%-35% suffered by workman. However, Commissioner has considered loss of earning capacity is to an extent of 25%. Considering the nature of injury and there being no evidence tendered by the Doctor, that disability suffered by the workman to an extent of 30%-35% has also resulted in proportionate loss of earning capacity it cannot be held that loss of earning capacity is to be considered as 25%. I am of the considered view that on account of fracture of L-1 18 vertebra, workman would be unable to discharge his duties as a truck driver. However, that does not mean that he would not be able to drive any other vehicle. In the absence of any such evidence available on record, whole body disability or functional disability or in other words, loss of earning capacity of the workman can be construed at 30% as opined by the doctor. Accordingly, compensation requires to be re-determined as under by construing his income at Rs. 4,000/- per month.
Rs.4,000/- x 60% = Rs.2,400/-
Rs.2,400 x 215.28 x 30% = Rs.1,55,001.60
16. Insofar as interest awarded by Commissioner is concerned, award in question would indicate that Commissioner has ordered for payment of interest @ 12% from 01.10.2007 i.e., payable after one month from the date of accident (2.9.2007) which is in consonance with the law laid by the Hon'ble Apex Court in 19 ORIENTAL INSURANCE CO.LTD vs SIBY GEORGE reported in (2012 ACJ 2126).
17. Though insurer has produced the documents - out patient record as per Ex.R-2(4) and got it marked through its witness, which would clearly indicate that workman had been examined by the Doctor at Bapuji hospital on 03.09.2007 for injuries sustained by him in the accident that occurred on 02.09.2009 insurer has attempted to stave off its liability on the ground that accident in question itself is doubtful as also the injuries sustained and consequential disability suffered by the workman. In view of the fact that very document produced by the insurer Ex.R-2(4) itself would indicate that claimant had sustained injury in the accident that occurred on 02.09.2007 and was treated at Bapuji Hospital, Davanagere, insurer could not have raised such a plea and as such, it has to be mulcted with costs. 20
18. For the reasons aforestated, following order is passed:
(1) MFA No.1832/2010 is hereby dismissed with costs.
(2) MFA CROB No.89/2010 is hereby allowed in part and in substitution to what has been awarded by the Commissioner for Workmens' Compensation, Davanagere in WCA/CR-
18/2008, a sum of Rs.1,55,001.60 is hereby awarded with interest @ 12% p.a. payable from 01.10.2007 till the date of payment or deposit whichever is earlier. (3) Amount in deposit with interest is ordered to be released in favour of workman on proper identification by the Registry. Balance if any, with interest and costs shall be deposited by the insurer before jurisdictional 21 Commissioner within four weeks from the date of receipt of copy of this order. (4) Cost is quantified at Rs.10,000/-
payable by the insurer to be deposited before jurisdictional Commissioner within four weeks from the date of receipt of copy of this order.
(5) If the costs is not deposited as ordered, workman would be entitled to recover the same by filing a execution petition before competent Civil Court or Commissioner would beat liberty to recover the same in accordance with law.
Sd/-
JUDGE *sp