Karnataka High Court
M/S United India Insurance Co Ltd. vs Venkatesh S/O Choudappa Anr on 23 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 JANUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
M.F.A No.31516/2010 (WC)
BETWEEN:
M/s.United India Insurance
Co. Ltd., Raichur through its
Divisional Manager. .. APPELLANT
(By Sri Manvendra Reddy, Adv.)
AND:
1. Venkatesh s/o Choudappa
Age 30 years, Occ:Ex-Hamali
R/o Matamari village
Tq: and Dist. Raichur.
2. Noor Ahmed s/o Saramsab
Age Major, Occ:Owner of lorry
No.CRQ-7987, R/o Club Road
Basavanakunte, Bellary. ... RESPONDENTS
(By Sri Amareshwar S Rawoor, Adv. for R1)
This M.F.A. is filed under Section 30(1) of the
Workmen's Compensation Act against the judgment and
order dated 18.5.2010 passed in Workmen's Compensation
Act/CR/No.14/2009 on the file Workmen's Compensation
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Commissioner, Raichur, partly allowing the claim petition and
awarding compensation of Rs.1,22,480/- with interest at 12%
p.a.
This M.F.A. coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
The United India Insurance Co. Ltd., Raichur being aggrieved by the judgment and order dated 18th May, 2010 made in WCA/CR/No.14/2009 by the Labour Officer and Commissioner for Workmen's Compensation, Raichur, (hereinafter referred to as 'WCC') has filed this appeal.
2. The 1st respondent herein filed the claim petition contending that he was working as a cleaner in a lorry bearing Regn. No.CRQ 7987 belonged to the 2nd respondent herein. On 3.11.2008, as per the instructions of the owner of the vehicle, after loading stones at Kudligi to unload at Moodlam on NH-13, the claimant was proceeding in the said lorry. In order to give way to the on coming vehicles, in a rash and negligent manner, the driver took the vehicle to the extreme left side, due to which, the vehicle turned turtled and the 3 driver, cleaner and hamali travelling in the said vehicle got injured. Immediately after the accident, he was taken to the government hospital, Kudligi for treatment. Thereafter, he was shifted to Gowrishankar Ortho Care, Bellary, for further treatment. He sustained fracture of proximal phalanx. Due to the injuries and fracture sustained by him, he cannot work as a hamali, which was doing prior to the accident. Prior to the accident, he was getting salary of Rs.150/- per day. The accident occurred during the course and out of employment. Hence, he sought for compensation.
3. In pursuance of the notice issued by the WCC, owner of the vehicle entered appearance and filed written statement and admitted that the claimant was working as a hamali and he sustained injury in the road traffic accident that occurred on 3.11.2008. The owner of the vehicle contended that he was not aware of the nature of injuries sustained by the claimant. Since the said vehicle is covered by insurance, the Insurer has to compensate the claimant. 4 Therefore, the owner of the vehicle sought for dismissal of the claim petition as against him.
4. The Insurer filed written statement denying the entire averments made in the claim petition and contended that there exists no relationship of master and servant between the claimant and the owner of the vehicle. Hence, the Insurer is not liable to pay compensation and sought for dismissal of the claim petition as against the Insurer.
5. On the basis of pleadings of the parties, the WCC framed the necessary issues.
6. The claimant in order to prove his case examined himself as PW1 and got examined Dr.Rajesh M, who treated the claimant as PW2 and got marked the documents as Exs.P1 to P13. On behalf of the Insurer, The Senior Assistant of the Insurance Company was examined as RW1 and got marked the policy as Ex.R1. On behalf of the owner of the vehicle, none of the witnesses were examined. 5
7. The WCC after considering the oral and documentary evidence let in by the parties and taking into consideration the MVI report, spot panchanama, copy of the complaint and other records held that the claimant has sustained injuries in the road traffic accident that occurred on 3.11.2008 during the course of and arising out of employment. Hence, he is entitled for compensation. During the course of evidence, RW1 clearly admitted that as per the IMT 39, four coolies working in the offending vehicle are covered by the insurance policy. Since the accident occurred during the course and out of employment, the liability has been fastened on the Insurance Company to compensate the claimant.
8. With regard to quantum of compensation is concerned, in the accident, the claimant has sustained tenderness over eyebrow, tenderness over right great toe and fracture of proximal phalanx of right 2nd toe. The doctor, who treated the claimant, taking into consideration the injuries 6 sustained and suffering undergone, assessed the disability to an extent of 25%. Since the claimant is the hamali, the WCC has taken the income as Rs.3,900/- p.m. Taking into consideration 60% thereof and applying the relevant factor 209.92 and considering the age of the claimant as 29 years at the time of accident, the WCC awarded compensation of Rs.1,22,803/- with interest at 12% p.a. from 30 days after the accident.
9. The Insurer being aggrieved by the order dated 18th May, 2010 passed by the WCC has preferred this appeal mainly contending that the percentage of disability of 25% towards partial permanent disability taken by the WCC is on the higher side.
10. On the other hand, learned Advocate appearing for the 1st respondent argued in support of the judgment and order passed by the WCC.
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11. I have carefully considered the arguments addressed by the Advocates appearing for the parties and perused the judgment and order and other relevant records.
12. The records clearly disclose that the claimant, who was working as a hamali, has sustained injuries in the road traffic accident that occurred on 3.11.2008 during the course and out of employment. The police have registered Crime No.168/2008 against the driver of the vehicle. Immediately after the accident, the claimant took treatment in the government hospital at Kudligi. The doctor, who treated the claimant, assessed the disability to extent of 25% to the whole body. Looking into the wound certificate, Ex.P12, it is clear that the claimant has sustained tenderness over eyebrow, tenderness over right great toe and fracture of proximal phalanx of right 2nd toe. The doctor, who treated the claimant, stated that the injury No.1 is simple in nature and injury No.2 is grievous in nature. Inspite of the same, the assessment of disability to an extent of 25% is contrary to 8 law. The assessment of disability by the doctor is not in accordance with law. Except the fracture of proximal phalanx of right 2nd toe, the other injuries are minor injuries. The injuries sustained by the claimant have cured. As on the date of accident, he was aged about 29 years. Taking into consideration the suffering undergone by the claimant, it is appropriate to take the disability to an extent of 15% to the whole body. Taking into consideration the income as Rs.3,900/- p.m, taking 60% thereof, applying the relevant factor 209.92 and taking into consideration the disability to an extent of 15%, the claimant is entitled for compensation of Rs.73,682/- as against Rs.1,22,803/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The judgment and order dated 18th May, 2010 made in WCA/CR No.14/2009 by the Commissioner for Workmen Compensation, Raichur District, Raichur, is modified. The claimant is entitled for compensation of Rs.73,682/- as against Rs.1,22,803/- 9 awarded by the WCC. Apart from that, the claimant is entitled to interest at the rate of 12% from one month after the accident till the date of deposit.
The amount in deposit be transferred to the Civil Judge (Sr.Dn.), Raichur in view of abolition of the post of Commissioner for Workmen Compensation, Raichur District, Raichur.
The excess amount be *refunded* to the appellant - Insurance Company.
Sd/-
JUDGE Bkm.
* Corrected vide order dated 23.02.2016 *