Karnataka High Court
The Branch Manager, National Insurance ... vs Sri. Ramesh Mahadev Katai Anr on 24 July, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 24TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
M.F.A No.31210/2011(WC)
BETWEEN:
THE BRANCH MANAGER
NATIONAL INSURANCE CO., LTD.,
BIJAPUR
NOW REPRESENTED BY
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO.LTD.
BILGUNDI COMPLEX
STATION ROAD, GULBARGA
... APPELLANT
(BY SRI. SANJAY M JOSHI, ADVOCATE)
AND
1. SRI. RAMESH MAHADEV KATAI
AGE: 23 YEARS, OCC: COOLIE
R/O TADAVALAGA
TQ: INDI, DIST: BIJAPUR
2. SRI. BOODIN S/O BAPANNA DHADEDA
AGE: MAJOR, OCC: OWNER OF THE TRACTOR
R/O TADAVALAGA
TQ: INDI, DIST: BIJAPUR
... RESPONDENTS
2
THIS MFA FILED U/S.30(1) OF THE WORKMEN'S
COMPENSATION ACT 1923 TO SET ASIDE THE JUDGMENT AND
AWARD DATED 19.11.2010 PASSED BY IN THE LABOUR
OFFICER COMMISSIONER FOR WORKMEN'S COMPENSATION
NO.I BIJAPUR IN W.C.A. NO.49/2009, WRONGLY SADDLING THE
LIABILITY UPON THE APPELLANT TO PAY THE COMPENSATION
DETERMINED OF `.87,840/- AND INTEREST THEREON @ 12%
P.A. W.E.F. WITH ONE MONTH FROM THE DATE OF PAYMENT,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR NON COMPLIANCE OF
OFFICE OBJECTIONS (5TH TIME) THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
The present appeal has come up five times before the Court for non-compliance of office objections.
2. Office objection No.2 is dispensed, with since the copies are legible and readable. Objection No.1 has been examined and it is found that there is non-compliance, which are statutory in nature.
3
3. I have also gone through the judgment passed by the Commissioner for Workmen's Compensation Bijapur in WCA No.49/2009 dated 19th November 2010 in which the Commissioner has awarded compensation `. 87,840/-. The award is challenged mainly on two grounds, namely, the evidence of the doctor who has deposed that the injured has suffered 22-25% disability on the upper limb. This same should have been taken at one fourth, and instead, the Commissioner has taken it at 25% is an error. Secondly, the driver of the vehicle is also claimant in MFA No.31211/2011 and was not in possession of valid driving licence. The licence which he had produced before the Commissioner as per Ex.P.11 does not seem to be his licence.
4. Submissions of the learned counsel have been examined and it is found that, the disability is assessed at 20% on the basis of the evidence of the doctor. The Commissioner, has awarded the compensation on the basis of occupation and functional disability. The evidence of the doctor is not ultimate and it is open for the Tribunal to assess, 4 independently when the injured appear before the it, while adducing evidence. The discretionary power of the Tribunal cannot be interfered with by this Court.
5. With regard to non-possessing of the valid driving licence, it is found from the list of documents placed before Court. i.e. Ex.P.11, and from the evidence of P.W.1 there are no suggestions made by the Insurance with regard to non- possessing the valid driving licence. When the possession of driving licence is disputed by the Insurance, then it should have necessarily been confronted, and in the cross- examination, a suggestion should have been made regarding the same. If, under the circumstances, should the claimant produce endorsement from the RTO or an Officer of RTO, the same has to be examined. From the evidence of P.W-1 it is seen that, no suggestions as to whether he possessed valid driving lincence was suggested. Under this circumstance, it is to be inferred that the ground urged before this Court has not been urged before the Commissioner for Workmen's Compensation. There was no occasion either for the 5 claimants or to the Workmen's Compensation Commissioner to examine the said dispute. At least, if the Insurance Company had taken such grounds in the written statement, that would have served the purpose.
6. Under these circumstances, I have no alternative but to dismiss this appeal for the reasons stated above. The appeal stands dismissed at the stage of orders.
In view of the dismissal of the main appeal itself, IAs.1 to 4/2011 do not survive consideration.
Sd/-
JUDGE sdu