Karnataka High Court
Syed Amanulla S/O Syed Abdul Khadar vs B.K. Venkatesh (Rajanna) S/O ... on 4 April, 2005
Equivalent citations: 2006 (3) AIR KAR R 265
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The first respondent is the earner of sawmill and the tractor-traitor in question. The first respondent was utilising the tractor-trailer for the sawmill business. The petitioner is an employee of a sawmill, his job is also to attend to the loading and unloading work. During the process of loading of logs to the tractor-trailer one of the logs fell on the petitioner resulting in fracture of a leg. The petitioner filed claim before the W.C. Commissioner.
2. One B.K. Venkatesh @ Rajanna, is named as the owner of the sawmill in the petition. In the FIR one Rajanna is named as the owner of the tractor-trailer. The W.C. Commissioner comes to the conclusion that the petitioner has failed to prove that Rajanna and B.K. Venkatesh are one and the same person and that Rajanna is the alias name of B.K. Venkatesh, hence dismissed the petition. The petitioner is in appeal.
3. The following substantial question of law arises for consideration in this appeal.
Whether the finding of the W.C. Commissioner that B.K. Venkatesh and Rajanna are two different persons and that B.K. Venkatesh does not own the tractor trailer and he had not employed the petitioner as a loader in the tractor trailer is erroneous, contrary to law and evidence on record?
4. Rule 1 is placed exparte before the W.C. Commissioner. The petitioner has given evidence that the owner of saw mill is B.K. Venkatesh and his alias name is Rajanna. There is no contra evidence to rebut the veraion of the petitioner. Merely because in the FIR it is stated that the owner of tractor-trailer is stated as Rajanna it cannot be a basis to hold that Rajanna has no alias name as B.K. Venkatesh, Therefore, the finding of the W.C. Commissioner that B.K. Venkatesh and Rajanna are different parsons is bad in law.
5. It is in evidence that the tractor-trailer is used for sawmill business. The petitioner is a coolie in the sawmill and it is the part of his duty to attend to loading and unloading of logs to the tractor-trailer. Whenever the petitioner attends to the work of loading and unloading of the tractor-trailer for the relevant time and purpose, he is deemed to be employed in connection with the tractor-trailer for the purpose of loading and unloading and will be a workman within the definition of Section 2(n) of the W.C. Act hence the risk of the petitioner ii statutorily covered Under Section 147 of the M.V. Act. The accident occurred in the course of and out of employment and in use of the motor vehicle. Therefore the owner and the insurer are liable to pay the compensation.
6. The argument that the doctor who has issued disability certificate is not an Orthopedic Orthopedic Surgeon is an untenable contention. The doctor with M.B.B.S. qualification will have necessary basic knowledge of Orthopedics and would be competent to issue disability certificate according to the settled medical norms.
7. The argument that the doctor who has issued the disability certificate has not treated the petitioner, therefore he not competent to issue the certificate is a flawed logic. If such dangerous logic is upheld, it can very will apply to an appellate lawyer who argues an appeal without conducting the case in the trial court. The assessment of disability is done by the doctor as per the physical status of a person as on the date of examination. The doctor night not have treated the patient, but it cannot be said that medically the doctor will not be competent to assess the disability.
8. The medical certificate discloses the disability at 35%. The reckonable income is Rs. 350/-. The relevant factor is 184.17. The total compensation payable shall be Rs. 64,45 ft/- with interest at 61 from one month after the date of the accident till payment.
9. Accordingly, the appeal is allowed. The question of law is answered in affirmative.