Karnataka High Court
Veerabhadrappa S/O Veerappa Angadi vs Ningappa S/O Bhadramappa on 29 November, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 29TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.22503/2009 (WC)
BETWEEN:
VEERABHADRAPPA,
S/O. VEERAPPA ANGADI,
AGE 33 YEARS, OCC: DRIVER,
R/O. DODDAPET RANEBENNUR,
DISTRICT: HAVERI. ...APPELLANT
[BY SHRI LOKESH MALAVALLI, ADV.]
AND
1. NINGAPPA,
S/O. BHADRAMAPPA
AGSAR AGE MAJOR,
R/O. AGASANAHALLI,
TALUK: BYADAGI,
DISTRICT: HAVERI.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
ENKAY COMPLEX KESHWAPUR,
HUBLI, DISTRICT: DHARWAD. ...RESPONDENTS
[BY SHRI S S JOSHI, ADV. FOR R2 &
R1 DISPENSED WITH]
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 30(1) OF THE WC ACT, 1926,
AGAINST THE JUDGMENT AND ORDER DATED
12.06.2008 PASSED IN WCA/NF.NO.69/2006 ON THE
FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN'S COMPENSTAION, HAVERI, PARTLY
ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING
ON FOR ORDERS, THIS DAY, THE COURT DELIVERED
THE FOLLOWING: -
JUDGMENT
This appeal is filed by the workman, questioning the correctness and legality of the order and award passed in WCA/NF.NO.69/2006 dated 12.06.2008, whereunder, claim petition filed under Section 22 of the Workmen's Compensation Act, 1923, has been allowed in part and a compensation of Rs.1,95,696/- with interest at 12% p.a. payable after 30 days of the date of the award is being questioned, inter alia contending that substantial questions of law formulated in the appeal memorandum, would arise for consideration. :3:
2. Though matter is listed for orders, by consent of learned Advocates, it is taken up for final disposal, since the appeal is of the year 2009 and the alleged accident is of the year 2006.
3. Heard Shri Lokesh Malavalli, learned counsel appearing for appellant. Shri S.S.Joshi, learned counsel appearing for R2 and notice to R1 has been dispensed with by this Court by order of even date.
4. It is the contention of Shri Lokesh Malavalli, learned counsel appearing for the appellant that Tribunal committed a serious error in not considering the income of the claimant at Rs.7,500/- per month and it further erred in taking permanent physical and functional disability of workman at 40% though Doctor has stated disability is at 60% and as such, the compensation requires to be recomputed. He would submit that the award of interest is contrary to the law laid down by the Apex Court in 1976 ACT 141 (SC) and 2000 ACJ 5 (SC) as affirmed in 2012 ACJ 2126 and as :4: such, he prays for formulating the substantial questions of law formulated in the appeal and prays for answering the same in favour of workman.
5. Per contra, Shri S.S. Joshi, learned counsel appearing for R2 would fairly submit that in so far as award of interest is concerned, same is governed by judgment of Apex Court in the case of Oriental Insurance Company Limited vs. C.B. George and Others, reported in 2012 ACJ 2126 relied upon by the learned counsel for the appellant and submits that suitable orders be passed in that regard. However, he would hasten to add that in so far as the merits of the case is concerned, that Commissioner has taken into consideration the evidence that was placed before him and having found that disability is not to the extent as opined by the Doctor and has assessed the functional disability namely the loss of earning capacity vis-a-vis the injuries sustained and contends there is no infirmity whatsoever in the award passed by the Commissioner in awarding loss of earning. He would also elaborate his :5: submission by contending that Commissioner has rightly taken into consideration, the income of the workman at Rs.4,000/- per month and not as Rs.7,000/- per month as pleaded, since there was no proof produced by the workman and as such, he prays for suitable orders being passed in this regard.
6. Having heard the learned Advocates appearing for the parties, this Court is of the view that following substantial questions of law would arise for consideration: -
i) Whether the Commissioner for workman's compensation was justified in assessing the permanent functional disability at 40% and not at 60%, as opined by the Doctor and does finding of Commissioner suffer from factual error?
ii) Whether Commissioner was correct in taking the income of Workman @ Rs.4,000/- per month and if not what is the income he ought to have taken?
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iii) Whether the Commissioner was justified in awarding interest at the rate of 12% payable after one month from the date of the award or from what date workman is entitled for the interest?
7. On account of alleged accident that took place on 18.04.2006 at about 10:30 p.m., while the workman was travelling in an autorickshaw as a driver, a claim petition was filed under Section 22 of the Workmen's Compensation Act, seeking compensation alleging that he was an employee under the 1st respondent and the accident in question occurred, during the course of employment and the injuries sustained is arising out of employment and as such, the 1st respondent is liable to pay the compensation and in view of the vehicle having been insured with the 2nd respondent, said compensation is liable to be indemnified by the 2nd respondent.
8. 1st respondent - employer was placed exparte. 2nd respondent - Insurance Company :7: appeared and filed its statement of objections and denied the contentions raised in the claim petition. On the basis of the pleadings of the parties, Commissioner framed issues for determination and workman in support of his claim, got himself examined and also produced 12 documents and examined the Doctor who issued the disability certificate at Ex.A-10. On adjudication thereto, the Commissioner awarded compensation of Rs.1,95,696/- towards the loss of earning capacity by determining the disability at 40% and also loss of earning capacity to the said extent. Re Question No.1: -
The Doctor who has been examined on behalf of claimant has issued the disability certificate as per Ex.A-10 and his evidence does not disclose that workman's permanent total disablement is proportionate to the loss of earning capacity being at 60%. In that view of the matter, the Commissioner after taking into consideration, the medical records available like wound certificate, x - ray report including the oral :8: evidence tendered by the workman and after physically evaluation of the workman, has opined that loss of earning capacity of the workman on account of the injuries sustained and consequential disability suffered has resulted in 40% loss of earning capacity though physical disability is to the extent of 60%. This finding is based on sound appreciation of evidence placed by the parties and it cannot be held that it suffers from infirmities either on fact or on law calling for interference. Hence, question No.1 is answered against the workman.
Re: Question No.2: -
Though Shri Lokesh Malavalli has contended that the Commissioner ought to have taken the income of Workman at Rs.7,500/- it requires scrutiny only for the purposes of out right rejection, in as much as no material whatsoever was produced to show what was the actual salary drawn by the workman as on the date of the incident. To prove this fact, workman has neither examined his employer nor summoned the Wage :9: Register of his employer. None of his co-workers were examined by the workman. No material whatsoever was placed before the Commissioner to establish the income, except his self-serving testimony. In the absence thereof, Commissioner has considered the income of Workman at Rs.4,000/- per month for computation of compensation which does not call for interference. Hence, question No.2 is answered against the workman. Re Question No.3: -
The issue regarding award of interest is no more res integra and same has been settled by the Hon'ble Apex Court in the case of Oriental Insurance Company Limited Vs. C.B. George and Others, reported in 2012 ACJ 2126 and it has been held that in the event of non deposit of the amount by the employer or the insurer within the stipulated period prescribed under Workmen's Compensation Act, interest that becomes payable would commence after 30 days after the date of accident. In view of the law laid down by the Apex Court in C.B. George case referred to supra, workman : 10 : would be entitled to interest after 30 days of the date of accident and as such, question No.3 is answered in favour of the appellant - claimant. For the reasons above said, following order is passed.
ORDER
i) Appeal is allowed in part by answering substantial questions of law No's.1 and 2 in favour of the 2nd respondent -
Insurance Company and substantial question No.3 in favour of appellant No.2.
ii) Order and award passed by Workmen's Compensation Commissioner, Haveri, in WCA/NF/69/06 dated 12.06.2008, is modified and it is ordered that appellant - claimant would be entitled to interest at the rate of 12% p.a. after 30 days of the date of accident and said amount is referred to be deposited by 2nd respondent - Insurance Company before the Commissioner within four weeks from the date of receipt of copy of this order.
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iii) In view of Misc. Cvl. No.107812/2009 having been allowed conditionally by order of even date, appellant would not be entitled for interest for 358 days.
iv) No order as to costs.
Sd/-
JUDGE
Rsh