Karnataka High Court
The Manager vs Satish on 14 September, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.NO.11274/2008 A/W. M.F.A.CROB.129/2010
IN M.F.A.NO.11274/2008:
BETWEEN:
THE MANAGER
NATIONAL INSURANCE CO LTD
DIVISIONAL OFFICE, DAVANGERE
NOW REP BY ITS REGIONAL MANAGER
NATIONAL INSURANCE CO LTD
REGIONAL OFFICE,
SUBHARAM COMPLEX
144, M G ROAD
BANGALORE-560 001 ... APPELLANT
(BY SRI A N KRISHNA SWAMY, ADVOCATE)
AND:
1. SATISH
S/O.LATE NINGAPPA
NOW AGED ABOUT 29 YEARS
R/O.ALADAHALLI VILLAGE
HARAPANAHALLI TALUK
DAVANGERE DISTRICT
2. D H RUDRESH
S/O.HALGA ACHAR, MAJOR
OWNER OF TEMPO TRAX
R/O.BEHIND I T I COLLEGE
LENIN NAGAR, DAVANGERE ...RESPONDENTS
(BY SRI MAHESH R UPPIN, ADVOCATE FOR R-1)
THIS MFA IS FILED U/S.30(1) OF WC ACT AGAINST
THE JUDGEMENT DT. 20.8.2008 PASSED IN
WCA/CR.NO.259/2007 ON THE FILE OF THE LABOUR
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OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, DAVANAGERE, AWARDING A
COMPENSATION OF RS. 3,77,856/-.
IN MFA.CROB.NO.129/2010:
BETWEEN:
SATHISH
S/O LATE NINGAPPA
AGED ABOUT 28 YEARS
ALADAHALLI
HARAPANAHALLI TALUK
DAVANAGERE DISTRICT ... CROSS-OBJECTOR
(BY SRI MAHESH R.UPPIN, ADVOCATE)
AND:
1. D H RUDRESH
S/O HALGA ACHAR
TEMPO TRAX OWNER
NO.KA.17-A-3819
BEHIND I T I COLLEGE
LENINNAGAR
DAVANAGERE
2. THE MANAGER
NATIONAL INSURANCE CO LTD
DIVISIONAL OFFICE
DAVANAGERE ... RESPONDENTS
(BY SRI A N KRISHNASWAMY, ADVOCATE FOR R-2)
THIS MFA.CROB IN MFA.NO.11274/2008 IS FILED
U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT
DATED 20.08.2008 PASSED IN WCA/CR-259/2007 ON THE
FILE OF THE LABOUR OFFICER, COMMISSIONER FOR
WORKMEN'S COMPENSATION, DAVANAGERE DISTRICT,
DAVANGERE, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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THIS APPEAL ALONG WITH MFA.CROB COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
M.F.A.No.11274/2008 is filed by the Insurance Company for reduction of compensation granted by the Commissioner.
2. The claimant has filed M.F.A.CROB.129/2010 in M.F.A.No.11274/2008.
3. The Insurance Company has raised following substantial questions of law:
1. Whether the Commissioner was justified in assuming jurisdiction to assess the loss of earning capacity in the absence of assessment of loss of earning capacity made by a qualified Medical Practitioner.
2. Whether the Commissioner was justified in rejecting the application filed by the appellant, to refer the 1st respondent to a competent doctor for assessment of loss of earning capacity.
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3. Whether the Commissioner
committed a serious irregularity in proceeding to assess the loss of earning capacity much against the decision of the Full Bench of this Hon'ble Court in the case of Shivalinga Shivanagowda Patil & Others vs. Erappa Basappa Bhavihala & Others, reported in ILR 2004 KAR 193.
4. Whether there existed any material for the Commissioner to proceed to assess the compensation under Section 4(1)(c)(ii) of W C Act instead of Section 4(1)(d) of W C Act.
4. The main grievance of the Insurance Company is against assessment of permanent physical disability vis-à-vis loss of earning capacity.
5. As per medical evidence, claimant had suffered following injuries:
1) fracture of superior ramous on left side
2) fracture of inferior ramous on left side
3) fracture of superior ramous on right side
4) head injury
5) rupture of urethra
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6. Even after complete treatment, claimant has following permanent physical disabilities:
Pain and swelling in the buttocks, both hip joints, pain in the lower abdomen, movements sitting, standing, squatting, walking and while doing day-to-day activities, complain of difficulty in passing the urine, dribbling of urine sometimes present and burning.
7. On subsequent examination of claimant, Medical Officer has noticed following disabilities:
1. Tenderness swelling present over the lower part of left buttock region and lumbar region of back.
2. Range of movements (ROM) restricted and painful of left hip joint abduction reduced by 60% of normal range, internal rotation reduced by 50% of normal range. SLRT left side 70 degree.
3. Old healed scar marks present over the abdomen which is badly healed with keloid formation with presence of itching.
4. Wasting of the muscles of left leg thigh by 2 cms., right side 47 cms., left side 45 cms.
5. Wasting of the muscles of left leg by 3 cms., right side 33 cms. left side 30 cms.
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6. Shortening of the left lower limb by 3 cms., right side 92 cms., left side 89 cms.
7. Signs of sinovities & osteoarthritis present of the left hip joint present
8. Walks with painful limp on left lower limb
9. Supra pubic tenderness present
10. Patient was referred to General Surgeon where he was diagnosed as suffering from stricture urethra
11. He has undergone open laprotomy operation and urethral reconstruction operation for rupture of urethra an supra peritoneal haematoma treated conservatively
12. He was admitted and treated at Suchethana Hospital for retension of urine for which cystoscopy was done and cathere was put vide IP No.2135 DOA 12-1-07 DOD 15-1-07.
8. Based on the above observations, the Medical Officer has assessed permanent physical disability at 60%. The Commissioner for Workmen's Compensation, taking into consideration that claimant was a driver by occupation has assessed permanent physical disability vis-à-vis loss of earning capacity at 75%. It is borne by evidence on record that claimant has surrendered his driving licence.
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9. During pendency of this appeal at the instance of the Insurance Company claimant was examined by Dr.K.B.C.Sogi, Senior Specialist, Chigateri District, Davanagere. Dr.K.B.C.Sogi, on examination of claimant has issued following disability certificate:
"I Dr. K.B.C.Sogi Senior Specialist Chigateri District Hospital Davanagere, certify that Sri Satish S/o.Ningappa aged about 35 years resident of Aladahalli is physically disabled which causes an interference in his day to day work.
As per the records he submitted, first he was treated at Chigateri District Hospital, Davanagere on 18.11.2006 to 20.12.2006 with I.P No.27600. He was treated for fracture superior, inferior ramus of pubis of both sides and rupture of urethra.
He was treated at Chigateri District Hospital with open laptrotomy and urethral reconstruction. A scar of 20 cm seen over abdomen of the patient from epigastric region to pubis.
Now patient is complaining of pain abdomen. Distention and difficulty in passing urine. Strain to void and increased frequency to void and incomplete sensation and evacuation. On examination bladder was palpable because of distention. Operated scar was seen.
Patient was referred to urologist for opinion.
Patient was subjected for investigation by doing
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abdomino pelvic scan and retrograde urethrogram were done. Sonalogist gave report as (L) renal calculi with post void residual urine with bladder wall thickening.
Retrograde Urethrogram (RGU + MCU) shows stricture at membranous urethra with significant post void residue urine.
After careful examination and after going through the medical records and scanning report and retrograde urethrogram, I am of the opinion that Satish S/o.Ningappa has got permanent disability which causes interference in his day to day work, because patient has already undergone surgery for two times.
I have gone through the following documents while issuing the certificate:
- wound certificate issued by medical officer PHC Itagi
- copy of discharge card issued at Chigateri District Hospital, Davanagere
- copies of investigation reports -
- letter of opinion issued by Dr.Veerendra, Urologist
- out patient card No.11242 of Chigateri District Hospital, Davanagere
- discharge card issued by Urologist, Suchetana Hospital, Davanagere.
10. The accident in question took place on 18.11.2006. Even after a period of six years, claimant
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suffers from various permanent physical disabilities, amongst these physical disabilities, rupture of urethra is a significant disability. The disability certificate submitted by Dr.K.B.C.Sogi would reveal that even after laptrotomy and urethral reconsruction, claimant continues to suffer from pain abdomen, distention and difficulty in passing urine. Dr.K.B.C.Sogi has opined these permanent physical disabilities of claimant would interfere with his day to day work. Considering medical evidence, nature of injuries, consequent permanent physical disabilities and avocation of claimant, assessment of disability by Commissioner for Workmen's Compensation cannot be termed as excessive. The claimant has filed cross objections to contend that claimant suffers from 100% disability.
12. The law is fairly well settled that while assessing permanent physical disability vis-à-vis loss of earning capacity in respect of non schedule injuries, the Court shall have regard to nature of injuries and loss of earning capacity shown in Schedule II to the Act.
Therefore, cross objection filed by claimant for
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enhancement of compensation cannot be accepted. It is seen from the impugned award that the Commissioner has not awarded interest after 30 days from the date of accident.
13. In the result, I pass the following order:
The appeal filed by the Insurance Company is dismissed. The cross objection filed by claimant is accepted in part. The claimant is entitled to compensation of Rs.3,77,856/- with interest at 12% p.a. after 30 days from the date of accident till the date of deposit. The amount deposited by the Insurance Company shall be transferred to the Commissioner for Workmen's Compensation.
Sd/-
JUDGE nas.