Karnataka High Court
The Manager vs Sri M B Vijaya on 24 October, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A NO.5923/2009
C/W
M.F.A.NO.5922/2009(WC)
M.F.A NO.5923/2009
BETWEEN:
The Manager,
The New India Assurance
Company Limited,
Hyderabad Region-represented by
The Divisional Manager,
The New India Ass. Co. Ltd.,
Divisional Office,
Chamarajapet
Davanagere-577 001.
Represented by:
The New India Assurance Co. Ltd.,
Regional Office,
No.2-B, Unity Building Annexe,
P.Kalinga Rao Road,
(Mission Road)
Bangalore-560 027-duly
Represented by its Manager. ... Appellant
(By Sri.Ravishankar, Advocate)
2
AND:
1. Sri.M.B.Vijaya,
Aged about 24 years
S/o Sri.Basappa
Aralihalli Village,
Hosadurga Taluk,
Chitradurga District.
2. Sri. Ramashankar,
Aged about 40 years
Owner of lorry bearing
No.AP 16/TV 2273
R/o SVVM Transport Agency
Chikallu,
Jaggaiahpete,
Krishna District
Andra Pradesh State. ... Respondents
(By Sri.Mahesh R. Uppin, Advocate for R-1;
Notice to R-2 served)
This Appeal is filed Under Section 30(1) of WC Act
against the order dated 03.07.2009 passed in WCA
NF.CR.No.285/2005 on the file of the Labour Officer
and Commissioner for workmen Compensation,
Chitradurga District, Chitradurga awarding a
compensation of Rs.1,31,712/- with interest @ 12% p.a.
M.F.A NO.5922/2009
BETWEEN:
The Manager,
The New India Assurance
Company Limited,
Hyderabad Region-represented by
The Divisional Manager,
3
The New India Ass. Co. Ltd.,
Divisional Office,
Chamarajapet
Davanagere-577 001.
Represented by:
The New India Assurance Co. Ltd.,
Regional Office,
No.2-B, Unity Building Annexe,
P.Kalinga Rao Road,
(Mission Road)
Bangalore-560 027-duly
Represented by its Manager. ... Appellant
(By Sri.Ravishankar, Advocate)
AND:
1. Sri.Murthy,
Aged about 33 years
S/o Sri.Borappa
Mathodu Village,
Hosadurga Taluk,
Chitradurga District.
2. Sri. Ramashankar,
Aged about 40 years
Owner of lorry bearing
No.AP 16/TV 2273
R/o SVVM Transport Agency
Chikallu,
Jaggaiahpete,
Krishna District
Andra Pradesh State. ... Respondents
(By Sri.Mahesh R. Uppin, Advocate for R-1;
Notice to R-2 dispensed with V/o dated 7.7.2011)
4
This Appeal is filed Under Section 30(1) of WC Act
against the order dated 03.07.2009 passed in WCA
NF.CR.No.284/2005 on the file of the Labour Officer
and Commissioner for workmen Compensation,
Chitradurga District, Chitradurga awarding a
compensation of Rs.1,27,045/-.
These Appeals are coming on for Hearing this day,
the Court delivered the following:
JUDGMENT
Though appeals have been admitted on 30/10/2012, records would indicate that substantial questions of law as required under section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act' for brevity) have not been formulated. Hence, they are formulated herein below after hearing the learned advocates:
(1) Whether Commissioner was justified in considering loss of earning capacity of workmen at 35% in the absence of any clear ascertainment of permanent physical disability and proportionate loss of earning capacity as assessed by qualified medical practitioner as 5 contemplated under Section 4 (1)(c)(ii) of the Act?
(2) Whether Commissioner was justified in dismissing the application filed by the insurer under Section 11 of the Act seeking evaluation of the workmen by District Surgeon to ascertain the disability?
2. I have heard the arguments of Sri. A Ravishankar, learned Advocate appearing for the insurer and Sri Mahesh R Uppin, learned Advocate appearing for first respondent- workman in both appeals. Respondent-2 in MFA No.5923/2009 is served and unrepresented. Notice to respondent-2 in MFA No.5922/2009 is dispensed with vide order dated 07.07.2011.
3. Considering the fact that accident is of the year 2004, claim petition is of the year 2005, award came to be passed on 03.07.2009 and appeals have been admitted on 31.10.2012, appeals are taken up for 6 final disposal by examining the contentions and pleadings raised by learned Advocates appearing for parties and records secured from the jurisdictional Commissioner for Workmen's Compensation. BRIEF FACTS:
4. On account of a road traffic accident that occurred on 24.12.2004, claimants who are driver and cleaner of the lorry filed a claim petition seeking compensation before Commissioner for Workmen's Compensation, Chitradurga contending interalia that they were employees under second respondent herein and accident occurred in the course of employment and injuries sustained by them were on account of employment and as such, they are entitled for compensation.
5. Employer did not choose to contest the matter before Commissioner and insurer appeared and contested the matter by filing detailed statement of objections. Claimants-workmen themselves got 7 examined and produced records including medical records. In order to prove that they had sustained disability and it has resulted in their loss of earning capacity, they examined one Dr. Madhukar Ghante. Since he was not the doctor who had treated the claimants-workmen and since he was not the doctor who had given follow-up treatment to the claimants, an application was filed by the appellant-insurer under Section 11 of the Act seeking for referring the claimants to Govt. hospital for assessing their disability and proportionate loss of earning capacity since the doctor who had had opined that permanent physical disability sustained by the workmen was to an extent of 35%. Hence, doubting the genuineness of such certification made by the doctor, said application came to be filed. However, Commissioner has rejected the said application on the ground that evidence of the doctor is already available on record, namely, that of Dr. Madhukar.
8
6. Policy issued to the offending vehicle being in force as on date of accident and appellant insurer being liable to indemnify the insured are facts which were not in dispute before the Commissioner as also before this Court. Hence, they are not delved upon in this appeal.
RE: SUBSTANTIAL QUESTIONS OF LAW (1) & (2):
7. Since answer to both the questions of law formulated herein above would overlap, they are taken up for consideration together.
8. Both the claimants produced medical records to contend that on account of injuries sustained by them they are unable to carry on with their avocation as they were doing prior to the accident. Workman in WCA/NF/CR No. 284/2005 had sustained fracture of Tibia and Fibula. Whereas Workman in WCA/NF/CR.No. 285/2005 had sustained fracture of right leg. Accident in question took place at Tarikere. 9 Workmen were treated at Primary Health Centre, Hosadurga. Doctor who has examined them i.e., Dr.Madhukar has been examined. Undisputedly accident took place on 25.12.2004. The doctor has examined these workmen after a lapse of two years i.e. on 15.02.2006 at the time of assessing their disability. In his examination - in - chief he assessed disability to both workmen as 40% to 45% permanent physical disability. However, in his cross-examination, he has admitted that he had not assessed loss of earning capacity of the claimants either with reference to the avocation of workmen or injury caused to them resulting in proportionate loss of earning capacity. At the same time in the cross examination, doctor has also admitted that whole body disability to each of the workman cannot exceed 5% to 10%. In fact, Commissioner after considering the cross-examination of the Doctor, has proceeded to discard the evidence of the doctor and substituted its findings that too without assigning any reasons whatsoever. This exercise by the 10 Commissioner is impermissible in law more particularly when insurer had filed an application under Section 11 of the Act seeking for a direction to workmen being examined by a qualified doctor to assess their permanent physical disability and resultant proportionate loss of earning capacity. In such a situation it was incumbent upon the Commissioner to allow the application and rejection of said application on a flimsy ground namely that on account of the evidence of Doctor being already available on the record cannot be accepted and it does not stand to rhyme or reason particularly when said evidence was not accepted. Hence, order of the Commissioner requires to be set aside and accordingly, it is set-aside.
9. In view of the aforesaid discussion, this Court will now have to undertake the exercise of recomputing the compensation that becomes payable to the workmen. As noticed herein above from the evidence of the doctor, whole body disability to each of the 11 workmen as assessed by the doctor is 5% to 10% considering the fact that workmen had sustained fractured of tibia, fibula and right leg respectively, it would be appropriate to construe the whole body disability to be at 10% which has also resulted in loss of earning capacity to the said extent.
10. Income of the workmen construed by the Commissioner in the absence of any positive evidence being placed by respective workmen deserves to be accepted which is at Rs.3,000/- and Rs.2,800/- respectively. Taking into consideration the accident is of the year 2004, income construed by the Commissioner cannot be found fault with. So also factor adopted by the Commissioner taking into consideration the age of workmen. Thus, compensation that becomes payable to the workmen is recomputed as under :
12
RE: WORKMAN IN WCA/NF/CR/No.284/2005 (Mr.Murthy) (MFA No.5922/2009) Rs.3,000/- x 60 = Rs.1,800/-100
Rs.1,800 x 201.66 x 10 = Rs.36,298.80 100 RE: WORKMAN IN WCA/NF/CR/No.285/2005 (Mr.Vijaya) (MFA No.5923/2009) Rs.2,800/- x 60 = Rs.1,680/-100
Rs.1,680 x 224.00 x 10 = Rs.37,632/-100
In view of the above discussion substantial questions of law are partly answered in favour of the appellant insurer.
11. Hence, following order is passed:
(1) Appeals are hereby allowed in part.
13
(2) Order and awards passed by
Commissioner for Workmen
compensation, Chitradurga in
WCA/NF/CR/No.284/2005 and
WCA/ NF/CR/No.285/2005 dated
03.07.2009 are hereby modified and in substitution to the same, compensation of Rs.36,298.80 and Rs.37,632/- respectively are hereby awarded.
(3) Workmen would be entitled to interest @ 12% p.a. payable after 30 days from the date of accident till date of payment or deposit whichever is earlier.
(4) Registry is directed to issue cheques to the first respondent - workman in both appeals as ordered hereinabove on proper identification and balance 14 amount is ordered to be refunded to the appellant - insurer on proper identification.
Sd/-
JUDGE *sp