Karnataka High Court
The Divisional Manager, M/S New India ... vs T Prakash S/O. T Hanumantappa on 20 August, 2019
Author: K.Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MFA No.20040/2013 (WC)
C/w
MFA Nos.20041/2013, 20042/2013, 20043/2013
20044/2013, 20039/2013, 20036/2013, 20033/2013,
20034/2013, 20035/2013, 20037/2013 & 20038/2013.
MFA No.20040/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI SURESH S/O: KARIVEERAPPA
AGE: 21 YEARS, OCC: EX-CLEANER,
R/O: AMBEDKAR CIRCLE,
BELLARY ROAD, HOSPETH,
DIST: BELLARY.
2. SHRI RAMAPPA S/O: D. TIMMAPPA
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: DAMMUR, TQ & DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH)
2
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.163/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I, BELLARY, AWARDING COMPENSATION OF
RS.1,68,369/- WITH INTEREST AT THE RATE OF 12% P.A.
MFA No.20041/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI LALUSAB S/O: SHEIKH SAB
AGE: 24 YEARS, OCC: EX-HAMALI,
R/O: HANCHAGUDI VILLAGE,
TQ: HOSPETH, DIST: BELLARY.
2. SHRI RAMAPPA S/O: D. TIMMAPPA
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: DAMMUR, TQ & DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.164/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,32,131/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
3
MFA No.20042/2013
BETWEEN:
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI KOLLARAPPA S/O: HONNUR SWAMY,
AGE: 25 YEARS, OCC: EX-HAMALI,
R/O: HANCHAGUDI VILLAGE,
TQ: HOSPETH, DIST: BELLARY.
2. SHRI RAMAPPA S/O: D. TIMMAPPA
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: DAMMUR, TQ & DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.165/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,40,558/- WITH INTEREST AT THE RATE OF 12% P.A.
MFA No.20043/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
4
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX,
NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI DADAPEER S/O: MOULASAB,
AGE: 24 YEARS, OCC: EX-HAMALI,
R/O: HANCHAGUDI VILLAGE,
TQ: HOSPETH, DIST: BELLARY.
2. SHRI RAMAPPA S/O: D. TIMMAPPA
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: DAMMUR, TQ & DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.166/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,32,131/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20044/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX,
NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
5
AND:
1. SHRI LINGAPPA S/O: MARENNA,
AGE: 25 YEARS, OCC: EX-HAMALI,
R/O: HANCHAGUDI VILLAGE,
TQ: HOSPETH, DIST: BELLARY.
2. SHRI RAMAPPA S/O: D. TIMMAPPA
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: DAMMUR, TQ & DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.167/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,63,983/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20039/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI MOHAMMAD SHAFI
S/O: SHEIKH HUSSEIN,
AGE: 45 YEARS, OCC: EX-DRIVER,
R/O: KANAVI HALLI,
6
TQ: HARAPPANAHALLI,
DIST: BELLARY.
2. SHRI RAMAPPA S/O: D. TIMMAPPA
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: DAMMUR, TQ & DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.162/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,71,350/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20036/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI HONNURSWAMY
S/O: KATEBASAPPA,
AGE: 25 YEARS, OCC: EX-LOADER,
R/O: POTHLAKATA VILLAGE,
TQ: HOSPETH,
DIST: BELLARY.
7
2. SHRI G. BHASKAR
S/O: G. ANJANEYALU,
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: KAKAN MAJID,
SHIVALING NAGAR,
DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 HELD SUFFICIENT)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.154/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,84,524/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20033/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI VENKATESHALU
S/O: B.P.VANNAPPA,
AGE: 35 YEARS, OCC: EX-DRIVER,
R/O: TORANAGALLU,
TQ: SONDUR,
DIST: BELLARY.
8
2. SHRI G. BHASKAR, S/O: G. ANJANEYALU,
AGE: NOT MENTIONED, OCC: NOT MENTIONED,
R/O: KAKAN MAJID,
SHIVALING NAGAR, DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 HELD SUFFICIENT)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.151/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,95,696/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20034/2013
BETWEEN:
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI FIZIL, S/O: ASADULLA,
AGE: 35 YEARS, OCC: EX-CLEANER,
R/O: M.M.HALLI,
TQ: HOSPETH, DIST: BELLARY.
2. SHRI G. BHASKAR, S/O: G. ANJANEYALU,
AGE: NOT MENTIONED,OCC: NOT MENTIONED,
R/O: KAKAN MAJID,
SHIVALING NAGAR, DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1;
NOTICE TO R2 HELD SUFFICIENT)
9
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.152/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,87,410/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20035/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI T.PRAKASH
S/O: T.HANUMANTAPPA,
AGE: 23 YEARS, OCC: EX-LOADER,
R/O: POTALAKATTA,
TQ: HOSPETH, DIST: BELLARY.
2. SHRI G. BHASKAR
S/O: G. ANJANEYALU,
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: KAKAN MAJID,
SHIVALING NAGAR,
DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 SERVED)
10
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.153/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,66,282/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20037/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS
ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI RAMESH S/O RUDRAPPA,
AGE: 25 YEARS, OCC: EX-LOADER,
R/O: POTHLAKATA VILLAGE,
TQ: HOSPETH,
DIST: BELLARY.
2. SHRI G. BHASKAR
S/O: G. ANJANEYALU,
AGE: NOT MENTIONED,
OCC: NOT MENTIONED,
R/O: KAKAN MAJID,
SHIVALING NAGAR,
DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 HELD SUFFICIENT)
11
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.155/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,63,983/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
MFA No.20038/2013
BETWEEN :
THE DIVISIONAL MANAGER,
M/S. NEW INDIA ASSURANCE CO. LTD.,
BELLARY. NOW REP. BY ITS ASSISTANT MANAGER,
U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,
MTP HUB DIVISIONAL OFFICE,
SHRINATH COMPLEX, NCM, HUBLI.
...APPELLANT
(BY SRI S.S.KOLIWAD, ADVOCATE)
AND:
1. SHRI MALLIKARJUN S/O: AYYANNA,
AGE: 24 YEARS, OCC: EX-LOADER,
R/O: POTHLAKATA VILLAGE,
TQ: HOSPETH, DIST: BELLARY.
2. SHRI G. BHASKAR, S/O: G. ANJANEYALU,
AGE: NOT MENTIONED, OCC: NOT MENTIONED,
R/O: KAKAN MAJID, SHIVALING NAGAR,
DIST: BELLARY.
...RESPONDENTS
(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1
NOTICE TO R2 HELD SUFFICIENT)
THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST
THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN
WC.NF.NO.156/2009 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISON-I BELLARY, AWARDING COMPENSATION OF
RS.1,65,163/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE
OF THE ORDER.
12
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA Nos.20040, 20041, 20042, 20043, 20044 and 20039 of 2013 are arising out of the award dated 02.11.2012 passed by the learned Labour Officer and Commissioner for Workmen Compensation-I, Bellary, District Bellary (for short 'Commissioner') in WCA NF.Nos.162, 163, 164, 165, 166 and 167 of 2009 and MFA Nos.20036, 20033, 20034, 20035, 20037 and 20038 of 2013 are arising out of the award dated 02.11.2012 passed by the learned Labour Officer and Commissioner for Workmen Compensation-I, Bellary, District Bellary (for short 'Commissioner') in WCA NF.Nos.151, 152, 153, 154, 155 and 156 of 2009. All these appeals are arising out of common award passed by the Commissioner in two batch of cases.
13
2. These appeals have been filed by the Insurer assailing the award passed by the Commissioner in respect of determining the wages as well as assessing the loss of earning capacity of respondent No.1/claimant in all these appeals. Since all the appeals have involved same set of facts, they are taken up together for disposal.
3. I have heard the learned counsel appearing for the appellant and also the learned counsel for claimants/respondents.
4. For the convenience the ranks of the parties before the Commissioner is retained.
5. The claimants/respondent No.1 in all the cases have filed the claim petitions under Section 3(10) of Workmen's Compensation Act, 1923, (for short 'the Act') claiming 14 compensation. The brief facts of the cases are that;
On 14.06.2009, at about 2.35 p.m., when the claimant Mohd. Shafi in WCA No.162/2009, being the driver of the vehicle bearing registration No.MED-8085 and claimant in WCA No.151/2009 being the driver of the lorry bearing registration No.AP-A/3875, were driving their vehicles, both the vehicles met with an accident due to the head on collision. The claimant-Fizil in WCA No.152/2009 was the cleaner and claimant- Ramesh in WCA No.155/2009 was cleaner in the lorry bearing registration No.AP-02/V-3875, whereas claimant-Suresh in WCA No.163/2009, the claimants-Lalusab, Kollarappa, Dadapeer and Lingappa, were hamalis in lorry bearing registration No.MED-8085 and due to accident they sustained injuries during the course of employment under the common employer respondent No.1-Ramappa, who is owner of the 15 vehicle bearing registration No.MED-8085 when they were proceeding with the loaded goods in order to unload the sugar. These claimants as well as the drivers and cleaners of both the vehicles have sustained injuries and they admitted to the Government Hospital, Itagi, for treatment and thereafter took treatment at private hospital and the recognized orthopedic surgeon assessed the disability and due to the injuries they lost the earning capacity and disabled. Hence they filed claim petitions stated supra.
In response to the notice, owner of lorry appeared and admitted that the claimants are working under them as hamalis as well as drivers and cleaners. However, they contended that the vehicles are duly insured with the 2 n d respondent Insurance Company. The insurer also appeared and filed statement of objection in all the cases by denying the nature of injuries and the disability 16 and also the expenses incurred by the claimants and prayed for dismissing the claim petitions.
Based upon the rival pleadings, the Commissioner framed the following common issues in all the cases:
1) CfðzÁgÀgÀÄ 1£Éà ¥ÀæwªÁ¢UÀ¼À ¯ÁjÃAiÀÄ°è 1£Éà CfðzÁgÀ£ÀÄ ZÁ®PÀ£ÁV, 2£Éà CfðzÁgÀ£ÀÄ QèãÀgï DV ªÀÄvÀÄÛ 3 jAzÀ 6 gÀ ªÀgÉV£À CfðzÁgÀgÀÄ ¯ÉÆÃqÀgïì DV PÁAiÉÄÝAiÀÄ°è ªÁåSÁ夹zÀAvÉ 'PÁ«ÄðPÀ' gÁVzÀÝgÉA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀªÀgÉÃ? ºÁVzÀÝ°è 1£Éà ¥ÀæwªÁ¢AiÀÄ §½AiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛzÁÝUÀ, D PÉ®¸ÀzÀ PÁgÀt¢AzÀ C¥ÀWÁvÀ GAmÁ¬ÄvÀÄ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
2) CfðzÁgÀgÀÄ vÀªÀÄUÉ C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è CfðUÀ¼À°è ºÉýgÀĪÀAvÉ ªÀAiÀĸÁìVvÀÄÛ ºÁUÀÆ 1£Éà ¥ÀæwªÁ¢UÀ½AzÀ 1£Éà CfðzÁgÀ£ÀÄ wAUÀ½UÉ gÀÆ. 5,500/- UÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß, 2£Éà CfðzÁgÀ£ÀÄ wAUÀ½UÉ gÀÆ. 4500/- UÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß ªÀÄvÀÄÛ 3 jAzÀ 6 gÀ ªÀgÉV£À CfðzÁgÀgÀÄ vÀ¯Á ¢£ÀPÉÌ gÀÆ. 150/- UÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß ¥ÀqÉAiÀÄÄwÛzÀÝ£ÀgÉAzÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
3) F C¥ÀWÁvÀzÀ PÁgÀt¢AzÀ vÀªÀÄUÉ UÁAiÀÄUÀ¼ÁzÀªÉAzÀÄ ºÁUÀÆ vÀªÀÄä zÀÄrªÉÄAiÀÄ ±ÀQÛAiÀÄ £ÀµÀÖzÀ ±ÉÃPÀqÁ ¥ÀæªÀiÁt JµÀÄÖ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ? 17
4) ºÁVzÀÝ ¥ÀPÀëzÀ°è CfðzÁgÀgÀÄ AiÀiÁªÀ jÃwAiÀÄ ¥ÀjºÁgÀ EvÀgÉ G¥À±ÀªÀÄ£ÀUÀ½UÉ CºÀðgÀÄ? CfðzÁgÀgÀÄ ºÁUÉ ¥ÀqÉAiÀÄ®Ä CºÀðgÁzÀ ¥ÀjºÁgÀ ºÁUÀÆ EvÀgÀ G¥À±ÀªÀÄ£ÀUÀ¼À£ÀÄß ¥ÁªÀw¸À®Ä ¥ÀæwªÁ¢UÀ¼ÀÄ AiÀiÁªÀ AiÀiÁªÀ jÃwAiÀÄ°è ¨ÁzsÀågÀÄ:
5) F §UÉÎ DzÉñÀªÉãÀÄ?
To substantiate their contention, the claimants examined themselves as PWs. 1 to 5 and got marked 26 documents in first batch of cases and got marked 25 documents in another batch of cases. The 1 s t respondent-owner did not let in any evidence. However, the 2 n d respondent Insurer examined two witnesses - Sri. A. C. Murthy and Sri. Sandeep B. R. and got marked Ex.R1 - Insurance Policy.
After considering the evidence on record, the Commissioner allowed the petitions and awarded the compensation after assessing the disability and taking the income, relevant factor for the age of the claimants as under:
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MFA Year ECA Name Occ Income Age RF Disability Disability Award No. taken taken assessed by doctor 20033 2013 151/09 Venktesh Driver 4000 32 203.85 40% 45 1,95,696 20034 2013 152/09 Freezal Cleaner 3600 25 216.91 40% 45 187410 20035 2013 153/09 T. Prakash Loader 3600 23 219.95 35 40 166282 20036 2013 154/09 Honnurswami Loader 3600 27 213.37 40 45 184524 20037 2013 155/09 Ramesh Loader 3600 25 216.91 35 40 163983 20038 2013 156/09 Mallikarjun Loader 3600 24 218.47 35 40 16563 Mohammed Driver 3600 47 178.49 40 45 171350 20039 2013 162/09 Shefi 20040 2013 163/09 Suresh Cleaner 3600 21 222.71 35 40 168369 20041 2013 164/09 Laluprasad Loader 3600 24 218.47 28 30 132131 20042 2013 165/09 Kolarappa Loader 3600 25 216.91 30 35 140558 20043 2013 166/09 Dadapeer Loader 3600 24 218.47 28 30 132131 20044 2013 167/09 Lingappa Loader 3600 25 216.91 35 40 163983 19 The Commissioner directed the Insurance Company to pay the compensation as awarded on 02.11.2012. Assailing the award passed by the Commissioner in all these cases, the Insurer filed these appeals questioning the quantum of compensation and the assessment of the disability by the doctor who was examined by the claimants.
6. The counsel for the appellant - Insurer contended that, though the claimants have produced the wound certificates, but Dr.Rajesh, who issued the disability certificates has not at all treated the claimants in the hospital, but he has only assessed the disability and given exorbitant percentage of more than 40% to 48% and 30-35% without any basis. Though the insurer disputed the disabilities, but the Commissioner considered the same relying upon the evidence of the doctor and awarded the compensation taking into consideration the disability certificates produced by the claimants 20 which is not correct. Though the disabilities are shown as 30-40% to the limb, but the doctor has not stated the disability compared to the whole body. Therefore, accepting the evidence of the doctor and awarding the compensation considering the disability stated by the doctor is not correct. Therefore, prayed for reducing the percentage the disability assessed by the Commissioner and reducing the quantum of compensation by allowing the appeals.
7. Per contra, learned counsel for the claimants strenuously argued that, there is no substantial question of law involved in these appeals and the reassessing the disabilities and the income of the claimants which was already considered by the Commissioner which amounts to question of fact and no question of law. Therefore, prayed for dismissing the appeals.
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8. In support of his arguments, the learned counsel for the respondent/claimants relied upon the judgment of the Hon'ble Apex Court reported in 2014 SAR (Civil) 781 in the case of B. Lakshmana Etc. Vs. Divisional Manager, New India Assurance Company Limited Etc.., whereas the learned counsel for the appellant/Insurer relied upon the judgment of the Division Bench of this Court reported in 2004 ACJ 333 in the case of Shivalinga Shivanagowda Patil and another Vs. Erappa Basappa Bhavihal and the judgment of the High Court of Judicature at Hyderabad reported in 2016 ACJ 314 in the case of United India Insurance Co. Ltd., Vs. S. K. Razak and another..
9. Heard the arguments of the learned counsel for the parties and perused the award passed by the Commissioner.
10. On perusal of the records, it shows that the occurring of the accident on 14.06.2009 at 22 about 2.30 pm due to the head on collision between both the lorries bearing registration Nos.MED8085 and AP02/V-3875 is not in dispute. It is also not in dispute that all the claimants were traveling in the said lorries as drivers, cleaners and hamalies at the time of accident and due to the accident, they suffered injuries. They have been shifted to the Government hospital at Itagi and were treated as inpatients and they have been examined by Dr.Rajesh and he issued the disability certificates based upon the wound certificates as well as the evidence adduced by the claimants as PWs. 1 to 6 in both the batch of cases. Though the doctor opined that the percentage of disability of the claimants in case Nos. 151, 152, 153, 154, 155 and 156 of 2009 as 45%, 45%, 40%, 45%, 40% and 45% as per the disability certificates at Exs.P11, P14, P17, P20, P22 and P25 respectively, and in case Nos.162, 163, 164, 165, 166 and 167 of 2009 as 45%, 40%, 30%, 35%, 30% and 40% as per the disability certificates 23 Exs. P7, P14, P17, P20, P23 and P26 respectively, after assessing the evidence of the claimants as well as the doctor, the Commissioner reduced the disability as per the table supra and by taking the income of the drivers at Rs.4,000/- per month, income of the cleaners and Hamalis at Rs.3,600/- per month and by considering the relevant factor as per the age of the claimants, awarded the compensation as supra.
11. The Hon'ble Apex Court in the case of B. Lakshmana (supra) at paras 11 and 12 held as under:
"11. In the instan t case, the Workmen's Compensation Commissioner has already returned a f inding of f act with regard to the accident, the injury suffered by the appellan ts and the extent of loss of earning capacity of the appellants as a result of the accident. The said find ing is based on the evidence duly proved bef ore the Commissioner. There is no mater ial irregular ity or perversity in the appr aisal 24 of evidence. There is no case that the evidence was inadmissible. In such circumstances, the appellate cour t should not have enter tained the appeal as there is no substan tial question of law.
12. Under the scheme of the Act, the Workmen's Compensation Commissioner is the f inal au thor ity on questions of f act and the f irst appellate cour t is the f inal au thor ity on the question of law. In the instant case, there is no question of law much less a substan tial question of law ar ising f or consider ation under Section 30 of the Act f or the High Cour t. The High Cour t has simply ventured to re-
appreciate the evidence and record a diff erent f ind ing, which is not within its jur isd iction under Section 30 of the Act, in the absence of any mater ial irregular ity or perversity."
The Hon'ble Apex Court also held, under Section 30 of the Act no appeal shall lie against any order unless substantial question of law is involved in the appeal.
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12. In another judgment relied upon by the learned counsel for the appellant - Insurer, the High Court of Judicature at Hyderabad (supra) held that the opinion of the doctor about the injuries sustained by the workman and their effect on his earning capacity has a high persuasive evidentiary value and the Commissioner cannot accept every such opinion as gospel. The Commissioner has to carefully examine the nature of the injuries and evaluate the opinion of the doctor. If the opinion of the doctor looks so absurd having regard to the nature of injuries even to a layman, such opinion is liable to be rejected, albeit, by assigning sound reasons. In the said case, the doctor has assessed the disability at 45%, whereas the Commissioner calculated 100% of disability for earning capacity which was reduced to 50% by the High Court. The assessment made by the Commissioner is against the evidence on record, which involved substantial question of law. But here in these appeals, the 26 Commissioner assessed the disability less than the disability assessed by the doctor. Therefore, the said judgment will not come to the aid of the Insurer.
13. Likewise, in another judgment reported in 2004 ACJ 333 in the case of Shivalinga Shivanagowda Patil and another Vs. Erappa Basappa Bhavihala, the full Bench of this Court held as under:
" Workmen's Co mpensatio n Ac t, 1923, section 4 (1) (b) read with sectio n 2 (1) (1)- Per manent to tal d is able men t-Co mpens ation-De ter minatio n of loss of earning capacity-Whe ther de ter mination of loss of earning capacity of a wo rkman has to be with ref erence to ' all the wo rk' wh ich he was capable of perf orming at the time of accident and no t with ref erence to the wo rk which he was perf orming at that time-
Held: yes; ho we ver, in case the workman es tablishes by acceptable ev idence that af ter the injury no t only he is no t able to do the work wh ich he was perf or ming bef ore the acciden t but he is no t able to do any o ther work, the loss of earning capacity co uld be assessed on the bas is of such evidence.
27Workme n's Co mpe nsation Act, 1923, sectio n 4 (1) (c) ( ii) - Co mpensatio n - De ter mination of loss of earning capacity- Whe ther the co mmiss io ner can assess loss of earning capacity witho ut the ass is tance of assess ment made by qualif ied med ical pr actitio ner or in d isregard of the assess men t made by him-He ld: no'; but if the assess men t mad e by qualif ied med ical pr actitio ner is d is puted by any of the par ties, the Co mmiss io ner may accept the assessmen t made by ano ther q ualif ied med ical pr actitioner. Workme n's Co mpe nsation Act, 1923, sectio n 4 (1) (c) (i) re ad with S chedule I, Par t II and sectio n 4 (1) (b) - Co mpens ation-De ter mination of loss of earning capacity-Workman sus tained injur y specif ied in Par t II of Schedule I bu t he adduced inde pend ent and accep table evidence to es tablish that his injury resul ts in per manent to tal d is able men t and no t per manent par tial d is able men t-Whe ther the Co mmiss ioner has po wer to de ter mine the amo unt of Compens ation award able under sectio n 4(1) (b) tr eating the injur y as per manent to tal d is able men t-He ld:
yes."28
14. Even in the said case, this Court held the fact cannot be interfered into by the High Court. Therefore, this judgment also not come to the aid of the insurer.
15. Based upon the assessment made by the Commissioner, the Insurer preferred the appeals which are wholly based upon the question of fact and no substantial question of law is involved. The Hon'ble Apex Court clearly held that, under the Workmen's Compensation Act, the Commissioner is the final authority on question of fact and the first Appellate Court is the final authority on the question of law. There is no question of law, much less a substantial question of law arising for consideration under Section 30 of the Act for the High Court. The High Court cannot simply venture to re-appreciate the evidence on record and record different findings which were not recorded by the 29 Commissioner and set aside the judgment of the Commissioner in the said appeal.
16. Admittedly, these appeals are challenged by the Insurer only based upon the disability assessed by the Commissioner based upon the evidence of the doctor. Even in the decision relied upon by the Insurer, the Insurer had filed an application for referring the claimants to the some other penal doctor for reassessing of the disability which was rejected by the Workmen's Compensation Commissioner, which was not challenged by the Insurer. But in the instant cases, except denial suggestion of the evidence of the doctor, nothing has been elicited in the cross-examination to disbelieve the evidence of the doctor. Merely the doctor has not treated the claimants in the first instance, that itself is not a ground to reject his evidence. Even otherwise, the Insurer has not filed any application before the Commissioner for referring the claimants to any other penal doctor for 30 reassessment of the disability. The doctor issued the disability certificates based upon the wound certificates. In all the wound certificates also it is clearly mentioned that the claimants have sustained fracture injuries. Based upon the wound certificates and X-ray reports the doctor assessed the disability and given the disability certificates. Even In spite of giving disability certificates by the doctor, the Commissioner by basing upon the evidence reduced the disability of 5% and 2% respectively and also the income is also reduced from the claim made by the claimants.
17. Therefore, the award passed by the Commissioner in assessing the disabilities is nothing but question of fact and not the question of law much less no substantial question of law is involved in these appeals so as to interfere with the award passed by the Commissioner.
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18. in view of the judgment passed by the Hon'ble Apex Court in Lakshmana' case (supra), since there is no substantial question of law is involved the appeals filed by the Insurance Company to admit these appeals. Hence appeals deserve to be dismissed.
Accordingly the appeals are dismissed. The amount in deposit be transmitted to the concerned Tribunal/Commissioner as the case may be.
SD JUDGE msr/gab