Karnataka High Court
M/S Oriental Insurance Company vs Sri Rangappa S/O Kallappa Sarwad on 22 February, 2016
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
M.F.A.No.31992/2011 (WC)
BETWEEN:
M/s Oriental Insurance Co. Ltd.
S.S.Road, Bijapur.
Represented by
The Divisional Manager,
Oriental Insurance Company Ltd.,
Opp: Mini Vidhana Soudha,
Gulbarga-585102.
... Appellant
(By Sri Sanjay.M.Joshi, Adv.)
AND:
1. Sri Rangappa
S/o: Kallappa Sarwad
Age: 27 Years, Occ: Nil,
R/o: Utnal,
Tq & Dist: Bijapur.
Now R/o: Bendigeri Oni,
Bijapur.
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2. Sri Akilabanu Jameera
Ahamad Inamdar,
Age: 37 years,
Occ: Business,
R/o: Near Darbar House,
Borigalli, Bijapur.
... Respondents
( Notice to R2 is dispensed with
R1 served un-represented)
This MFA is filed under Section 30(1) of Workmen's
Compensation Act, against the judgment and award dated
29.07.2011 passed in WCA/SR No.139/2009 on the file of the
Labour Officer and Commissioner for Workmen's
Compensation Sub-Division No.1 at Bijapur, allowing the
petition and awarding the compensation of Rs.1,79,399/-
with interest at 12% p.a.
This MFA coming on for Admission this day, the Court
delivered the following:
JUDGMENT
The appellant-insurance company has filed this appeal challenging the judgment and order dated 29.07.2011 made in WCA/SR-139/2009 passed by the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division No.1 at Bijapur (herein -after referred to as 'WCC') with regard 3 to assessment of the disability while awarding the compensation.
2. The respondent/claimant had filed a claim petition contending that, he was working as a driver in a lorry bearing registration No.KA-28/9862 belonged to the second respondent herein. On 30.05.2009, on instruction of the owner of the vehicle while he was proceeding towards Managuli road near Nayak Nursing Home, the said vehicle met with an accident and driver of the said lorry had sustained fracture of right leg, fracture of ribs and other fractural injuries to other parts of the body. He had taken treatment in Dr. Nayak Nursing Home. Prior to the accident, he was working as a driver and earning more than Rs.4,000/- per month. The accident occurred during the course of and out of employment. The vehicle is covered by the insurance policy. Hence, sought for compensation of Rs.5,00,000/-.
3. In pursuance of the notice issued by WCC, the owner of the vehicle as well as insurance company entered 4 appearance. The respondent No.1 filed written statement admitting that the claimant was working as a driver in his lorry, which met with an accident on 30.05.2009. Though he has denied the quantum of injury sustained, he admitted that the vehicle is covered by the insurance policy, as on the date of the accident. Hence, the Insurer has to compensate the claimant.
4. The respondent-insurance company has filed the written statement denying the entire averments made in the claim petition and also disputed the relationship of master and servant between the claimant and owner of the vehicle. No document has been produced to show that he was earning Rs.5,000/- per month. Hence, respondent-insurance company is not liable to compensate the claimant and sought for dismissal of the claim petition.
5. On the basis of the pleadings of the parties, the WCC framed the necessary issues.
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6. The claimant in order to prove his case examined himself as PW.1 and examined the doctor as PW.2 and got marked the documents as Ex.P1 to P10. On behalf of the insurance company none of the witnesses have been examined. However, insurance policy is marked as Ex.R.1.
7. The WCC taking into consideration the oral and documentary evidence let in by the parties and taking into consideration the police records and MVI report held that in view of the road traffic accident occurred on 30.05.2009, the claimant had sustained injuries during the course and out of employment. Hence, the claimant is entitled for the compensation. Though the claimant claims that the owner of the vehicle was paying him salary of Rs.5,000/- and bata of Rs.50/- per day, no document has been produced to substantiate the same. In view of that, the WCC had taken the income of driver as Rs.4,000/- p.m. With regard to the disability is concerned the doctor who has treated the claimant has assessed the disability to an extent of 30% - 35% in 6 view of the fracture of right leg and other injuries. The doctor in his evidence has deposed as under;
"I examined him on 04.10.2010 at my private clinic and found following disabilities.
E/O: There is tenderness present over the Rt knee joint
-There is limitation of flexion of Rt knee after 70 degree
-The movements of Rt knee are painful and restricted.
-There is deformity present over the Rt knee.
-He walks with limp on Rt side.
-He is having difficulty in climbing the steps X-RAY: Rt knee shows old malunited # of tibial condyle With the above observation I am of the opinion that the permanent disability is about 30%-35% related to Rt lower limb".
8. The WCC taking into consideration the functional disability assessed by the doctor and also taking into consideration the loss of earning capacity assessed the disability to an extent of 35%; considering the age of claimant 7 as 25 years applied the relevant factor 213.57 and deducting 60% thereof, awarded a sum of Rs.1,79,399/- with interest at 12% p.a. Being aggrieved by the quantum of compensation the appellant-insurance company, the insurance company filed this appeal.
9. I have carefully considered the arguments addressed by the advocate appearing for the parties and perused the judgment and order passed by the WCC and other relevant records.
10. The records clearly disclose that, the claimant had sustained injuries in the road traffic accident occurred on 30.05.2009. In the accident, he had sustained fracture of right leg and injuries to other parts of the body referred to above. The doctor assessed the disability to an extent of 35% and stated that in view of the mal union of the fractured portion, there is restricted movement of right knee. The claimant was a driver by profession. Taking into consideration, the disability and loss of earning capacity as 8 assessed by the doctor the WCC has taken the functional disability to an extent of 35%. Though the claimant claims that he was earning Rs.5,000/- per month and bata of Rs.50/- per day, no document has been produced to substantiate the same. Hence, the WCC, had taken the income as Rs.4,000/- per month deducting 60% thereof, by applying the relevant factor, has awarded a sum of Rs.1,79,399/- with interest at 12% p.a. The WCC taken into consideration the loss of earning capacity of the person as assessed by the qualified medical officer. There is a fracture of right leg and mal united fracture, surely there will be disability to an extent of 35%. In the instant case, taking into consideration the injury sustained and suffering undergone, by the claimant doctor assessed the disability to an extent of 35%. The WCC, taking into consideration the nature of job and injury sustained accepted the disability assessed by the doctor.
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11. I find there is no infirmity and irregularity in the order passed by the WCC awarding compensation taking into consideration the disability to an extent of 35%. No ground is made out by the appellant to interfere with the same. Accordingly, I pass the following;
ORDER The appeal is dismissed.
The amount in deposit be transferred to the Civil Judge, Senior Division, Bijapur for disbursement.
Sd/-
JUDGE msr