Karnataka High Court
The Divisional Manager New India vs Anil Kumar S/O Chandradev on 26 September, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 25464 of 2010
C/W MFA No. 25465 of 2010,
MFA No. 25466 of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 25464 OF 2010 (WC-)
C/W
MISCELLANEOUS FIRST APPEAL NO. 25465 OF 2010
MISCELLANEOUS FIRST APPEAL NO. 25466 OF 2010
IN M.F.A.No.25464/2010
BETWEEN:
1. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
CLUB ROAD, BELGAUM
THROUGH ITS REGIONAL OFFICE,
MTP HUB OFFICE,2ND FLOOR,
SRINATH COMPLEX, NEW COTTON PET,
HUBLI - 580023
BY DULY CONSTITUTED ATTORNEY
...APPELLANT
(BY SRI. G N RAICHUR .,ADVOCATE)
AND:
1. ANIL KUMAR S/O CHANDRADEV
AGE: 24 YRS, OCC: EX-GAS CUTTER IN RCLCOMPANY,
Digitally signed
by J MAMATHA
R/O TORANAGAL VILLAGE SANDUR TQ.
Location:
J Dharwad
MAMATHA Date:
2022.09.30
2. SATISH SUPERVISOR/INCHARGE
15:48:10
+0530
M/S. RAY CONSTRUCTION LTD.,
JAMIPHOL SITE, JVSL ANCILARY
INDUSTRIAL ESTATE, TORANAGAL-583123
3. THE PROJECT MANAGER, JAMIPHOL,
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MFA No. 25464 of 2010
C/W MFA No. 25465 of 2010,
MFA No. 25466 of 2010
JVSL, ANCILARY INDUSTRIAL ESTATE,
TORANAGAL, SANDUR TQ.
...RESPONDENTS
(BY SRI. MANJUNATHA G PATIL, ADV. FOR R1,
SRI S.M.KALWAD, ADV. FOR F2,
SRI B.SHARANABASAWA, ADV. FOR R3)
THIS MFA IS FILED U/SEC.30(1) OF WORKMENS
COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD
DTD:20/11/2009 PASSED IN W.C.A. NO.199/2006 ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMENS COMPENSATION, BELLARY SUB DIVISION-2,
BELLARY, AWARDING COMPENSATION OF Rs.80,640/-
ALONG WITH THE INTEREST AT THE RATE OF 12% P.A.
FROM DATE OF PETITION TILL DEPOSIT.
M.F.A.NO.25465/2010
BETWEEN:
1. THE DIVISIONAL MANAGER, NEW INDIA
ASSURANCE COMPANY LTD.,
CLUB ROAD, BELGAUM
THROUGH ITSREGIONAL OFFICE,
MTP HUB OFFICE,2ND FLOOR,
SRINATH COMPLEX, NEWCOTTON PET, HUBLI -
580023BY DULY CONSTITUTED ATTORNEY
....APPELLANT
(BY SRI. G N RAICHUR.,ADVOCATE)
AND:
1. K PAPA RAO S/O MADANA RAO
OCC: EX-VELDOR IN RCL COMPANY
TORANGALLU VILLAGE, SANDUR TQ.
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MFA No. 25464 of 2010
C/W MFA No. 25465 of 2010,
MFA No. 25466 of 2010
2. SATISH, SUPERVISOR/INCHARGE
M/S. RAY CONSTRUCTIONS LTD.,
JAMIPHOL SITE, JVSL,
ANCILARY INDUSTRIAL ESTATE, TORANAGAL
3. THE PROJECT MANAGER,
JAMIPHOL, JVSL,
ANCILARY INDUSTRIAL ESTATE,
TORANAGALSANDUR TQ.
...RESPONDENTS
(BY SRI. MANJUNATHA G PATIL, ADV. FOR R1,
SRI S.M.KALWAD, ADV. FOR R2,
SRI SHARANABASAWA, ADV. FOR R3)
THIS MFA IS FILED U/SEC.30(1) OF WC ACT, AGAINST
THE JUDGMENT AND ORDER DTD:20-11-2009 PASSED IN
WCA.NO.200/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMENS COMPENSATION,
BELLARY SUB-DIVISION-II, BELLARY, AWARDING THE
COMPENSATION OF RS.1,56,175/- WITH INTEREST AT THE
RATE OF 12% P.A., FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
M.F.A.NO.25466/2010
BETWEEN:
1. THE DIVISIONAL MANAGER, NEW INDIA
ASSURANCE COMPANY LTD.,
CLUB ROAD, BELGAUM
THROUGH ITS REGIONAL OFFICE,
MTP HUB OFFICE, 2ND FLOOR,
SRINATH COMPLEX, NEWCOTTON PET,
HUBLI - 580023BY DULY CONSTITUTED ATTORNEY
...APPELLANT
(BY SRI. G N RAICHUR, ADVOCATE)
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MFA No. 25464 of 2010
C/W MFA No. 25465 of 2010,
MFA No. 25466 of 2010
AND:
1. KUNDAN CHOWDARI S/O JAGADISH CHOWDARI
OCC: RIGGER IN RCL COMPANY
TORANAGAL VILLAGE SANDUR TQ.
2. SATISH SUPERVISOR/INCHARGE
M/S. RAY CONSTRUCTION LTD.,
JAMIPHOL SITE, JVSL
ANCILARY INDUSTRIAL ESTATE, TORANAGAL
3. THE PROJECT MANAGER, JAMIPHOL,
JVSL, ANCILARY INDUSTRIAL ESTATE,
TORANAGAL, SANDUR TQ.
...RESPONDENTS
(BY SRI. MANJUNATHA G PATIL, ADV. FOR R1,
SRI S.M.KALWAD, ADV. FOR R2,
SRI SHARANABASAWA, ADV. FOR R3)
THIS MFA IS FILED U/SEC.30(1) OF WC ACT, AGAINST
THE JUDGMENT AND ORDER DTD:20-11-2009 PASSED IN
WCA.NO.201/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMENS COMPENSATION,
BELLARY SUB-DIVISION-II, BELLARY, AWARDING THE
COMPENSATION OF RS.80,640/-WITH INTEREST AT THE
RATE OF 12% P.A., FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
THESE APPEALS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed by the Insurance Company against the judgment and award dated 20.11.2009 passed by -5- MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 the Commissioner for Workmen's Compensation, Sub-division- II, Ballari, (for short 'the Commissioner') in WCA SR Nos.199 to 201/2000.
2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
3. The factual matrix of the case of the claimants who are all injured have contended in the claim petition that on 02.11.2005 when the claimants were working under the 1st respondent/M/s.Ray Construction Company and at about 12.30 p.m., when they were doing bucket welding, suddenly the bucket pulley chain broken and fell from the height of 10 feet on them as a result of which they sustained the injuries and immediately they were shifted to Jindal Sanjeevini Hospital at Toranagallu and thereafter they were shifted to Basaveshwara Medical Centre, Ballari, wherein they took the treatment as inpatients. A case was also registered by Toranagallu police in Crime No.221/2006.
4. It was the case of the claimants that the first claimant was getting Rs.100/- per day, second claimant was getting -6- MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 Rs.160/- and third claimant was getting Rs.105/- as wages and they were aged about 20, 25 and 30 years respectively and as a result of the said injuries they have suffered disability and hence, they made the claim petitions before the Commissioner for Workmen's Compensation, Sub-division-II, Ballari.
5. In pursuance of the notice issued against the respondents, respondent No.1 appeared and filed objection statement and admitted the incident and also injuries sustained by the claimants. However, contended that insurance policy was taken from the third respondent and that the policy was a workmen policy. The 2nd respondent also appeared and filed the statement of objections stating that the third respondent and first respondent are liable to pay the compensation.
6. In support of their claim, the claimants got themselves examined as PWs-1 to 3 and also examined the doctor to prove the nature of the injuries and the said doctor has assessed the disability to the extent of 20% to the first claimant, 30% to the second claimant and 20-25% to the third claimant and the Commissioner after assessing both oral and documentary -7- MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 evidence allowed the claim petitions awarding compensation of Rs.80,640/- to the first claimant, Rs.1,56,175/- to the second claimant and Rs.78,616/- to the third claimant with interest at the rate of 12% p.a. Being aggrieved by the judgment and award, the Insurance Company has filed the present appeals.
7. The main contention of the learned counsel appearing for the Insurance Company is that the Commissioner failed to appreciate the fact that on the date of the accident, the insurance policy had come into force and accident occurred on 02.11.2005 and the endorsement is effected from 20.11.2005. It is also contended that the accident which had occurred is at Toranagal wherein during the course of employment a bucket welding pulley chain fell down from the height of 10 feet wherein workers were working under respondent No.1 and respondent No.1 was carrying out the work for respondent No.2 in the absence of valid and effective insurance policy and hence, the insurer is not liable to pay the compensation and also that the compensation assessed is on higher side. He submits that a substantial question of law is also raised that the Commissioner committed an error in fastening the liability to -8- MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 pay the compensation on the insurer in the absence of valid and effective policy as on the date of the accident and it is also contended that the Commissioner was not justified in holding that the accident occurred during the course of employment. He further submits that the Commissioner also erred in taking the income at Rs.3,000/- p.m. and also accepting the disability assessed by the doctor who is not a treated doctor and hence, the judgment and award of the Commissioner calls for interference of this Court.
8. Learned counsel for the respondents/claimants would submit that in a case of death, the appellants have already paid the compensation amount and now they cannot contend that the policy was not in force and they are not liable to pay the compensation. He would further submit that the Insurance Company cannot take a different stand in case of death as well as in case of injury and the other contention that the Insurance Company is not liable to pay interest also cannot be accepted. Hence, he submits that the judgment and award of the Commissioner does not call for interference. -9- MFA No. 25464 of 2010
C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010
9. In reply to the arguments of the learned counsel for the claimants, learned counsel for the appellant submits that this is a contractual policy and this is not a statutory policy and hence, the question of payment of interest does not arise and it is the duty cast upon the insured to pay the interest. Learned counsel would also submit that no intimation was given with regard to the accident and the injuries sustained by the workers to the Insurance Company.
10. In reply to the arguments of the learned counsel for the Insurance Company, the counsel for the claimants would submit that in the affidavit of witness it is categorically stated that notice was given on 07.11.2005 and the Insurance Company cannot contend it is not liable to pay the interest. In support of his argument, he relied upon the judgment of the Delhi High Court in NATIONAL INSURANCE CO., LTD., VS. BHIM SINGH AND OTHERS (FAQ No.293/2007) wherein the Delhi High Court referred to the judgment in VED PRAKASH GARG VS. PREMI DEVI (1998 ACJ 1), wherein the Hon'ble Apex Court held that the Insurance Company cannot contend that it is not liable to pay the interest and the
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MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 judgment is very clear that principal amount under the said provision remains a part and parcel of the liability which is legally liable to be discharged by the insured employer. Therefore, it cannot be said by the Insurance Company that when it is statutorily and even contractually liable to reimburse the employer qua his statutory liability to pay compensation to the claimants in case of such accidents to his workmen, the interest on the principal amount which almost automatically gets foisted upon him once the compensation amount is not paid within one month from the date it fell due, would not be a part of the insured liability of the employer. The Delhi High Court has also taken note of Section 3 of the W.C.Act wherein with regard to the employer's liability for compensation states that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay the compensation in accordance with the provisions of this Chapter. Hence, it cannot be said that the Insurance Company is not liable to pay interest along with amount of compensation.
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MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010
11. Having heard the learned counsel appearing for the parties and on perusal of the material available on record, though the Insurance Company contends that it is not liable to pay the compensation cannot be accepted as in case of death, the Insurance Company has reimbursed the amount in favour of the insured. The other contention that in the said case, the Insurance Company was not made as a party and could not raise the other objection, also cannot be accepted when they have paid the compensation amount in case of death even though not made a party.
12. The other contention that interest amount is not liable is concerned, admittedly, the policy was in existence as on the date of the incident and it is admitted that the policy is workmen's policy and it is stated in the policy that it covered the risk of Supervisor, Workers are engaged in Civil and Structural work at Jamipol, site at Torangallu, as per Ex.R.1(a) and the incident having taken place at Toranagallu site and it is the case of the insured also that immediately after the accident it was intimated to the Insurance Company and no doubt in the cross-examination of RW-1 it is admitted that the incident was
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MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 not intimated to the Labour Court as well as the third respondent but he admits that the said policy does not disclose that how many persons it covers and in the cross-examination of RW-1 he categorically admits that policy covers 20 employees but only contends that for 3 persons they are not liable to pay the compensation and the said suggestion was denied. When the policy covers the risk of 20 persons and in case of death it has already been satisfied, the contention of the Insurance Company that they are not liable to pay the compensation, cannot be accepted.
13. As far as the contention of the learned counsel for the Insurance Company that they are not liable to pay the interest is concerned, the judgment in NATIONAL INSURANCE CO., LTD., VS. BHIM SINGH AND OTHERS (FAQ No.293/2007) wherein the Delhi High Court referred to the judgment in VED PRAKASH GARG VS. PREMI DEVI (1998 ACJ 1), makes it clear that the principal amount under the said provision remains a part and parcel of the statutory liability which is legally liable to be discharged by the insured employer. Therefore, it cannot be said by the Insurance Company that
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MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 when it is statutorily and even contractually liable to reimburse the employer qua his statutory liability to pay compensation to the claimants in case of such accidents to his workmen, the interest on the principal amount which almost automatically gets foisted upon him once the compensation amount is not paid within one month from the date it fell due, would not be a part of the insured liability of the employer.
14. Now with regard to the disability is concerned, I have already pointed out that the disability is assessed at 20%, 20% to 25% and 30% in respect of Anil Kumar, K. Paapa Rao and Kundan Chowdary and Orthopedic Surgeon has been examined as P.W.2. In the cross-examination, he admits that he has not examined the injured persons and suggestions are made that on account of fracture, no disability can be assessed and the same is denied. It is suggested that, disability would be 5% and the same is also denied.
15. In respect of the injured K. Paapa Rao, assessed the disability at 30% and it is elicited in the cross-examination that in respect of the injured Kundan Chowdary, the disability also may cause on account of not taking the proper food and he
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MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 cannot assess the difficulty in respect of the stomach portion and suggested that, without any disability, he has assessed the disability and the same was denied.
16. Having considered the evidence available on record i.e., P.W.2 in respect of all the injured persons, though he has not treated the injured persons, in respect of the first claimant is concerned, treatment was given for surgical scar about 15 cm. over anterior aspect of arm, tenderness present over scar, fracture site and implant over rotator cuff x-ray was also taken. In respect of the injured Kundan Chowdary, treatment was given for recurrent abdomen pain and on examination found malnourished dehydration, signs of protein energy malnutrition, long scar about 20 cms. over the abdomen with ileostomy scar and drain scar etc. Hence, assessed the disability at 20% to 25% and the disability is taken only at 20% by the Workmen Compensation Commissioner.
17. Having taken note of the said fact into consideration, the Apex Court also, in the judgment held that, the disability assessed by the Doctor, if it is not perverse and the same cannot be questioned and the same a finding of fact and not a
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MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 substantive question of law. When the Insurance Company has not led any evidence rebutting the evidence of P.W.2, it cannot be held that, it is a perverse finding and no perverse finding of the Workmen Commissioner, since disability is taken only at 20% in respect of two claimants and in respect of other claimant, at 30%, who has suffered abdomen injury. Hence, I do not find any substance in the contention of the Insurance Company.
18. Taking note of the quantum of compensation and nature of injuries mentioned in Ex.P19 in respect of Kundan Chowdary, the injuries are grievous in nature and he also took treatment. In the absence of any substantive question of law and Section 30 of the Workmen Compensation Act is also very clear that only substantive question of law can be raised, under the circumstances, I do not find any substance in the contention of the Insurance Company.
19. In view of the discussions made above, I pass the following:
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MFA No. 25464 of 2010 C/W MFA No. 25465 of 2010, MFA No. 25466 of 2010 ORDER (i) The appeals are dismissed. (ii) The amount in deposit is ordered to be transmitted to the Workmen Compensation Commissioner, forthwith. iii) The registry is directed to transmit the TCR forthwith. (Sd/-) JUDGE JM,ST List No.: 1 Sl No.: 4