Karnataka High Court
Branch Manager National Insurance Co ... vs Shri Marenna S/O Hulagappa on 20 January, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 20TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.20043 OF 2009 (WC)
BETWEEN
BRANCH MANAGER, NATIONAL INSURANCE CO. LTD.,
BELLARY, REP. BY ITS ADMINISTRATIVE OFFICER,
REGIONAL OFFICE, SHUBHARAM COMPLEX, 144,
M.G.ROAD, BANGALORE-01.
... APPELLANT
(BY SRI. LAXMAN B. MANNODDAR, ADV.)
AND
1. SHRI MARENNA S/O HULAGAPPA,
AGE:MAJOR, OCC:EX CLEANER,
R/O. TUMATI VILLAGE, TQ SONDUR,
DIST BELLARY.
2. SHRI R.VAJRALINGAM S/O R.VEERAPPA,
AGE: MAJOR, OCC: OWNER OF
TRUCK NO.KA-34/5313,
R/O.H.NO.40, TILAK NAGAR CANTONMENT,
BELLARY.
... RESPONDENTS
(BY SRI. MANJUNATH G. PATIL, ADV. FOR R1,
NOTICE TO R2 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 30(1) OF
WORKMEN'S COMPENSATION ACT AGAINST THE JUDGMENT
AND ORDER DATED 30.10.2008 PASSED IN WCA. NO.60 OF 2006
ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN, BELLARY DISTRICT, BELLARY-II, AWARDING
COMPENSATION OF RS.1,85,950/- WITH INTEREST AT THE RATE
OF 12% P.A.
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THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been preferred by the appellant/Insurance Company against the judgment and award dated 30.10.2008 passed by the Labour Officer and Commissioner for Workmen's Compensation ('Commissioner' for short) in WCA CR No.60/2006.
2. Heard the learned counsel for the appellant as well as the respondent in this appeal.
3. The learned counsel for the appellant/Insurance Company in the course of his arguments has contended that the Commissioner has passed the impugned judgment and award illegally, arbitrarily and erroneously and contrary to the principles of law laid down in regard to holding 40% of the loss of earning capacity and erred in awarding the compensation which is contrary to the provisions of the Workmen's Compensation Act and so also contrary to the evidence on record as well as the principles laid down in the case of National Insurance Co. Ltd., vs. :3: Mubasir Ahemad reported in AIR SCW 2007 1265, TAC 2007 PAGE 3 SC and in Shivalinga vs. Erayya 2004 ACJ 333 and in Full Bench decision reported in ILR 2004 page 193. It is also contended that the ratios of these reliances are applicable to the grounds urged in this appeal by the appellant/Insurance Company. Therefore, it requires to be re-appreciated by the evidence on record.
4. It is further contended that the Doctor has not treated the respondent No.1/claimant and the said Doctor has not assessed the loss of earning capacity suffered by the respondent No.1/claimant due to the injuries sustained as required under Section 4(I)(c)(ii) of the Workmen's Compensation Act, 1923.
5. It is further contended that there is no evidence to prove that the respondent No.1/claimant was working as a cleaner under the employment of respondent No.2/owner and was earning Rs.2,100/- per month and has not examined the employer to prove the employment and wages. The appellant/Insurance Company submits that in the absence of :4: proof in accordance with law, the Commissioner erred in determining the wages of the claimant at Rs.2,100/- per month and erred in awarding Rs.1,85,950/- as compensation arbitrarily. Therefore, learned counsel for the appellant/Insurance Company submits that considering the grounds urged in this appeal, it calls for interference of the judgment and award passed by the Commissioner and prays to allow the appeal and set aside the impugned judgment and award.
6. Per contra, learned counsel for the respondent No.1/claimant during the course of his argument in this appeal has contended that the Commissioner had analyzed the evidence adduced by P.W.1 and P.W.2/Doctor and also the documents produced at Exs.P-1 to P-8 and also the x-ray of right elbow AP and lat shows old malunited fracture lower end of humerus olecranon, head of radius, non union of capitulum, bony synostosis, of elbow joint, s-ray right wrist AP and lat shows old malunited fracture of lower end of radius withhold malunited fracture of proximal phalax of little finger with flexion deformity of proximal inter phalageal joint, malunited fracture of head of 2 :5: and 4 meta carpals. Learned counsel for the respondent No.1/claimant further submits that keeping in view of these medical evidence and also the evidence adduced by P.Ws.1 and 2, the Commissioner rightly held 40% towards the loss of earning capacity and awarded the compensation and therefore, it does not call for interference of the impugned judgment and award. It is further contended by the learned counsel for the respondent No.1/claimant that it requires to be interfered in the impugned judgment and award in respect of the interest which is to be accrued i.e., 30 days after the date of accident occurred. It is to be considered in this appeal also. On the other hand, learned counsel for the appellant/Insurance Company defends the same.
7. Whereas, keeping in view of the arguments advanced by the learned counsel for the appellant/Insurance Company as well as the respondent No.1/claimant in this appeal are concerned, it is relevant to state that the respondent No.1/claimant filed a petition before the Commissioner for claiming compensation on account of injury sustained in the motor vehicle accident which took place on 17.11.2005 at 04:00 :6: a.m., while the respondent No.1/claimant was working as a second cleaner under the employment of respondent No.2/owner on his Truck bearing No.KA-34/5313. During the course of his employment on the above said vehicle, it was driven by one Amrutsingh in a rash and negligent manner and dashed against the truck bearing No.KA-34/A-6066 and sustained grievous injuries. Due to the accidental grievous injuries, the respondent No.1/claimant sustained disability arising out of and during the course of employment. It is relevant to state that the respondent No.1/claimant while examined, he had painful swelling of lower part of arm, upper part of forearm, hand and wrist with a bleeding wound and also he complained of painful deformity of right arm, forearm, wrist and hand, unable to hold or lift heavy weights, difficulty to move wrist and fingers, unable to move elbow and forearm was unable to perform even activities of daily living. On examination, right forearm was held in semi flexed poison at elbow and semi pronated, arm and forearm deformed, muscles on the medial aspect of lower part of arm, another scar of 6 X 1 cms on the anterior medial aspect of elbow, 2 small scars with reddish :7: dislocation seen one in hip of olecrasion another on lateral aspect with fluctuation, tenderness over scars fracture site, elbow no movements possible at elbow and forearm, manus varus deformity seen, gross wasting of hand muscles seen, multiple small scars seen over forearm and hand, little finger held at flexion in the all joints, active extension not possible, tenderness over scars fracture site and wrist, wrist movements were painful dorsif lexion was short by 20 degree and palmar flexion by 10 degree right grip was weak.
8. The Commissioner keeping in view of the evidence adduced by the respondent No.1/claimant, as he had paid monthly salary of Rs.3,500/- per month, the claimant was aged 21 years and it has been considered by the Commissioner and awarded a compensation of Rs.1,85,950/- with interest at 12% per annum. But the learned counsel for the respondent No.1/claimant places the reliance of the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd., vs. Siby George and others reported in 2012 ACJ 2126, wherein it has held as follows:
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"9. The matter once again came up before the Court when by amendments introduced in the Act by Act 30 of 1995 the amount of compensation and the rate of interest were increased with effect from 15.09.1995. The question arose whether the increased amount of compensation and the rate of interest would apply also to cases in which the accident took place before 15.09.1995. A three Judge Bench of the Court in Kerala State Electricity Board vs. Valsala K., 2000 ACJ 5 (SC), answered the question in the negative holding, on the authority of Pratap Narain Singh Deo, 1976 ACJ 141 (SC), that the payment of compensation fell due on the date of the accident. In paragraphs 1, 2, and 3 of the decision the Court observed as follows:
"(1) The neat question involved in these special leave petitions is whether the amendment of sections 4 and 4-A of the Workmen's Compensation Act, 1923, made by Act 30 of 1995 with effect from 15.09.1995, enhancing the amount of compensation and rate of interest, would be attracted to cases where the claims in respect of death or permanent disablement resulting from an accident caused during the course of employment, took place prior to 15.09.1995?
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(2) Various High Courts in the
country, while dealing with the claim for
compensation under the Workmen's
Compensation Act, have uniformly taken the view that the relevant date for determining the rights and liabilities of the parties is the date of the accident.
(3) A four Judge Bench of this Court in Pratap Narain Singh Deo v.
Srinivas Sabata, 1976 ACJ 141 (SC), speaking through Singhal, J. has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workmen by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim.
10. The Court then referred to a Full Bench decision of the Kerala High Court in United India Insurance Co. Ltd. vs. Alavi, 1998 ACJ 1048 (Kerala) and approved it insofar as it followed the decision in Pratap Narain Singh Deo, 1976 ACJ 141 (SC)."
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9. Accordingly, in view of the contention taken by the learned counsel for the respondent No.1/claimant, it is said that the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim. It is also relevant to state that there are substances in the contention taken by the learned counsel for the respondent No.1/claimant that the interest to be accrued after 30 days from the date of the accident.
10. However, learned counsel for the appellant/Insurance Company in the course of his argument has taken a contention by relying on various grounds that calls for interference of the impugned judgment and award passed by the Commissioner to hold in 40% towards the loss of earning capacity and awarding the compensation. Keeping in view of the evidence adduced by the respondent No.1/claimant and also the documents produced by him to establish his case are concerned, it is said that there are no substances in the contention of the learned counsel for the appellant/Insurance Company in this : 11 : appeal which calls for interference of the impugned judgment and award.
11. As already stated that this appeal has been preferred by the appellant/Insurance Company by questioning the legality of the judgment and award passed by the Commissioner. But in this appeal having gone through the evidence adduced by the parties and also the documents to establish their case, the Commissioner has rightly come to the conclusion that the respondent No.1/claimant deserves the compensation as he met with an accident.
12. Therefore, in this appeal, I am of the considered opinion, there are no substances in the contention of the learned counsel for the appellant/Insurance Company, more over no justifiable grounds urged in this appeal. The appeal appears to be devoid of merits.
13. For the aforesaid reasons and findings in this appeal, I am of the considered opinion that the appeal deserves to be rejected. Accordingly, I proceed to pass the following: : 12 :
ORDER Appeal filed by the appellant/Insurance Company under Section 30(1) of the Workmen's Compensation Act is hereby rejected.
Consequently, the judgment and award dated 30.10.2008 passed by the Labour Officer and Commissioner for Workmen's Compensation in WCA CR No.60/2006 is hereby confirmed, by modifying the rate of interest at 12% per annum to be accrued after 30 days from the date of accident.
Sd/-
JUDGE Rsh