Karnataka High Court
Mahadeva S/O Durgappa vs Mohamad Hussain S/O Abdul Khadar on 9 September, 2008
Author: B.S.Patil
Bench: B.S.Patil
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VA V. its Divisional Manager.
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MFA 4235/2003 A/W
CROB 25o__/2007
1»: THE HIGH COURT OF KARNATAKA ff
cmcurr BENCH AT GIJ.1,3ARGA"' " ~ T» ,
DATED THIS T1-IE 9'1'?! DAY 01? VSEP3"E.!§II3'£?I§;'~'2Gf')f5V
BEEfiRfi. %
THE HON'BLE MR.JU%$r..z:¢'iué%V3.s.'m?1f§L 1
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OF
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Mahadcv:a.AS[o.Dfi£gé§;§jpag'"v_:"'"
Age: 24 years,*Occ: "
R[o.Si;:wa1', 'i'q_: Maxivj,
Dist: Raichur. APPELLANT
'A ~. Adv.
for P.Pat.ll, Adv.)
L1. S/o.Abdu1 Khadax,
Age: Majapr, Owner of Tractor KA--3'6-'I'--24 14,
R[q.Sii=s§ar, Tq: Manvi, Dist: Raichur.
Th-3-..ni}nited India Insurance Co. Ltd.,
Dfistz Raichur,
ans':-oxnmrrs
(By SrI.R.V.1ladagoIuIa, adv. for R-2)
MFA 4285/2003 A/'W
CROB 250/-2007
This MFA is fikad undar Section 30(1) of W.C.-'..Act,Aagait:3€'? V' » é
the order dated 31.12.2002 passed in Case No.§{a.A""Ra:-.VKa '2'*J_a" -,
Pa; CR:158/O1 on the file of the Commissioner for Vs'-oérkmcnfi,
Compensation, Raichur, partly allmwving tbs fgxf f
compensation and seeking cnhanccme1itVo1'.cémpen§atiQ;1. " --
In caoss OBJECTIOH 119.250 of M A
The United India Insurance co; Lt.-;1.;} 3
Raichur, Dist: Raichur, " 1
Byits nivisionmraaggger. g osmcmn
(By
: V . . ' . .. ' V .. ' -.
1. Mahadévafsl " %
Age: 24 years, Occ: '
R[o.Si1war,*Tq': Manvi, ' '
2."Mohz1IIiaa:'c1 Htzssain S/o.Abdu1 Khadar,
' Age: .MajOrg ' {Nmer of Tractor I{A~36~'I'~24 14,
*- R {o.SiIWa;x', Tq; V Manvi,
izsistz ' Raichur; RESPOHDEHTB
mum, Adv.
' " 8ri. __C'handrashekar P.Patil. Adv. for R-1)
'"'r'1};is MFACRGB in MFA.4285/2003 is filed under Order
22 of CPC, agaknst the judgment dated 31.12.2002
in WCA No.Ka Na Pa: CR:l58/01 on the file of the
, [Labour Oficcr 85 Commissioner for Workmen's Compensation,
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Raichur, awarding compensation of Rs.1,03,095/- with interest
at the rate of 12%: pa. from 04.10.2001 till deposit.
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MFA 4285/2003 A/W
CR.OB 250,900?
4. The ciaimant moved the Commissioner iomxfu
alia that due to the accident the vitalizittezveoz T
seriously afli:-cted and some of them,__got As a ziiciigvéis L.
unable to move around and attend of the tvhich he
was attending to earlier. Murthy
in support of his P--3 disahiiity
certificate 70% loss of
earning in his deposition
before the ' . .
5. The which is the cmss~
objectolffits the filed, resisted the claim by filing
Zlvjeiofijwfififis Tfl3_e petition on 24.01.2002. In the
sita-temeziit no defence is taken stating that the
i policy ootiocixver the coolies engaged in the tractor or that no
" "wits paid to cover them. The only defence taken in
is that the Insurance Company was liable to
only in case of existence of policy and subject to 12011--
i' ». ._4'4§*'ioIation of the conditions of the policy. No evidence was lead in
nloq sun-no Unlr1uI£"wmar1 Is gaugyg n
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%/
MFA 4285/2003 A/W
(32.03 250_{2oo7
by the Insurance Company. The policy was *
6. Based on the pleadings, "
necessaly issues. Issue No.1 was' Iegerd. of VV
occurrence of accident on__ -méjslsequent
injury and permanent Issue
No.2 pertained te_th e sufiered
by the the age. Likewise
Issue -sjvf compensation to which
the No.5 related to the person
who is liablepay
any evidence on the part of the
Company and having regard to the
coupled with the documentary
at Exs.P-I to P-9 which included the salary
iesned by the employer as per Ex.P-4, wherein he hm
M j that he was paying Rs.2,500[- per month as wages to
"":£ne"injured ciaimant and the FIR and other docummts, the
Commissioner came to the conclusion that the claimant was
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MFA 4285/2003 A/W
creos 25012007
able to discharge his burden' and prove the relev:3'ri--t §§§i£;ese* _
entitle him to claim compensation. I-Ioweveér, the u u
persuaded himself to hold that the wages emsnnan'.
be taken. on the basis of the the L'
relevant period to the unskilled at The age
of the injured was found the reievant
factor 221.37 and taking at 50%,
compensaiion '
8. The claimant] appellant in
this case on the minimum wages
payabke, in t!iie._ysV7a1<eVV'oi" issued by the cmpbyer is
_.. ,. the of loss of earnings determined at 50
fl 1:e~-Vevidence of the doctor who had assessed the
bss._6f at 70% is unsustainable. Counsel for
file contended that the cross-objections fled
H H liabiiity of the company is not maintainable as
K taken before the 'Tribunal denying the coverage of the
in the vehicie.
J5'
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MFA 4285/2003 A/W
CRO8 250/2007
9. Counsel appearm g for the Insurance "
that the cookies travelling in the tracter«tra_i3er 'A V'
as per the policy. He further oontendei3.«t11*3;;'tt
awarded by the Commissioner is jnst-and
10. Having heard the teamed on
careful consideration of the the substantial
questions of law
(9 metiex enmzed for
(ii) 'rt!-Insurance Company
néeteliabie fife V. e the amount?
11,' ef" «i.t.aui111'ies sufiemd by the claimant are
The evidence arm doctor Sri Harish Murthy
V mupeawge {fie-:'df.sie.I)iIit3r certificate issued dieciosed that then:
deformity of the back left foot. There was no
emcngm of foot and anus. There was passive
of 0 deg. to 30 deg. flexion only in the right knee.
lmee had full passive range of movement and
' "sensation in the back foot and ankle was aflectaed. The doctor
J has also opined that the claimant had no sensation of passhzg
%
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MFA 4235/2003 A/W
012.013 25o;2oo7
motion and had deformity of thoracic spine. The:.:doctlo"r:u A'
assessed the loss of earning capacity a"c"?'{."-%. -{tic u
the cmss-exaxraination that once the .'
recovers and the na1Is' were rctznoved, there _Wa_s for " V
impmvexnent. Considering tor the} doctor,
particularly the hot that -Tnnprovement for
Iecovofl'. the Commissioner'-"ix; come to the
conclusion 50% and not
70% as opium by .. ' "
12. The the injuries suficred and the
deformity in is completely defigured and is
-vsendezfmitg n_§c:-less that the claimant cannot do any
A}.1§-1I'dLVG!'fi work or any work involving manual Labour.
He" come sedentary work. For all practnc-.a' 1
'A ll gluzposég to leg is reduced to a lifeless limb. In addition, it
.4 ocen that due to the injmy on his trunk, the other
"of: the other lower limb is also affected. In such
the percentage of earning capacity even if giving
to the scope of impmvement after complete tncatrnent
and removal of nails, cannot be less than 60%. Therefom the
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MFA 4285/2003 A/W
cR.oB 250/--£2007
so
schedule injury, he is entitked for interest with cméét
date of the order i.e. to say fmm 31.12-;2(}C2¢at5_'the;. u
until the date of deposit of the amount. '.V T A' 3
15. The last question that be" with
regard to the liability to "the sought
to be raised by the by filing
cmss--object'uons. above, the
respondent the compensation.
it is not of objections that the coolics inlvthe not covered. It is also not contended tl)x,2La"t.VAAn'c~V is paid to cover the for the appellant contends that the i~.*A1s1'u'.I a;ace--» has ooikected necessary pzemium, it is V V this question as the insurance oompany ' nor adduced any evidence with regard to of the matter. Another important aspect that is % be noticed is that, the order ofthe oner is AT on 31.12.2002 and the appeal by the claimant is filed on 3 §6.06.2003 seeking enhancement of compensation. Nearly after four years, the cmss--objoction is filed, that too after the 1% awwuws Yl.fl"'V- rd U"w.!VM"'I I "DNVMEV W..." W. 2 saw" u...s.wwnu_.w...gr nmnmmamntmm WIWM awwuwfi W? fiflmmflfiflflfl l"'Ri¥..::~%&"! LUUKE U?' §QflKNPJ'fiK.a% WHEN CUURT Q?' KfiaRN&"§"AK.& W355?" CQURV MFA 4235/2003 A/W cR.oB 25012007 11 :
matter was referred to Lek Adalath and a "
mashed on 12.03.2005. The ' the instance of the insurance eompaxiy.
justification for the respondent-i;eetuz7anee /up a * V L' totally new pica its "net any such question either by éfghjwfions in this mgand or by leading 8135"" the insurance company has paying the amount as detenm'ned€ by jféhérerom looked fmm this angle by cross objector cannot be enterta.u1' M " V' "
'-16. (3ommtssie1;e;f«.has awarded interest at the rate of fiom 04.10.2001. Since the injury is a the claimant is entitled for interest only V with the date of the order i.e. to say from This View is supported by the judgment of the in the case National Iruuranec company Limited Vs. 'fum:aas:rAnmed aaanather me 2007 so 1208). MFA 4235/2003 A/W CR.OB 250/2007 12 ;
the 1espondc1a£~in.su1'an:c company V}
13. Sri.R.V.Nadagouia, ' tofilc merino of -
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17. In viewof the afiremenfnned discuséon the V. is enhamed and fixed at Rs.1,99,23${-- intex-at at 12%w.e.f. 31. 12.2O02.' 'i"h_Vc= by VA