Karnataka High Court
The Regional Manager National ... vs Sri J Allabaksh S/O Javi Sab on 11 December, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
MISCELLANEOUS FIRST APPEAL NO. 1380 OF 2009 (WC)
BETWEEN:
THE REGIONAL MANAGER
NATIONAL INSURANCE CO LTD
RAMASWAMY CIRCLE MYSORE
THE APPELLAT IS REPRESENTED
HEREIN BY:
THE MANAGER
NATIONAL INSURANCE CO LTD
BANGALORE REGIONAL OFFICE
SHUBHRAM COMPLEX
# 144, MAHATMA GANDHI ROAD
BANGALORE 560 001 ... APPELLANT
(BY SMT DEEPA M FOR LEXPLEXUS, ADVOCATE)
AND:
SRI J ALLABAKSH
S/O JAVI SAB
AGE : 38 YEARS
BEHIND JAYALAKSHMI TALKIES
MANDYA ... RESPONDENT
(RESPONDENT HELD SUFFICIENT)
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THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 01.09.2007 PASSED IN
WCA/NF/CR-197/2005 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, SUB DIVISION-2, MANDYA, AWARDING A
COMPENSATION OF RS.1,43,568/- WITH INTEREST @ 12%
P.A.
THIS MFA COMING ON FOR ADMISSION, THIS DAY,
THE COURT., DELIVERED THE FOLLOWING:
JUDGMENT
This MFA is filed under Section 30(1) of Workmen's Compensation Act against the judgment dated 01.09.2007 passed in WCA/NF/CR-197/2005 on the file of the Labour Officer and Commissioner for Workmen Compensation, Sub- Division-2, Mandya, awarding a Compensation of Rs.1,43,568/- with interest at 12% p.a.
2. I have heard the learned counsel for appellant. Paper publication was issued in respect of the respondent and the same was accepted.
3. The learned counsel for appellant submits that the judgment and order passed by the learned Commissioner for 3 Workmen Compensation is against the law, evidence and circumstances of the case. The learned commissioner has erred in assessing the loss to earning capacity suffered by the claimant at 40% merely on the basis of the physical disability.
4. Finding of the trial Court is that the petitioner was driver in a lorry bearing No. KA-09-3092. He was working under the respondent No.1, on the direction of respondent No.1 the claimant was proceeding in the said lorry towards Mandya. At V.C. Canal on 10.09.2005 at about 9.00am, one vehicle came from the opposite direction and the lorry was driven on the left side, consequently, lorry copsized. As a result of which claimant sustained injuries. The claimant was earning a sum of Rs. 4,000/-pm and he was aged about 34 years.
5. Dr. Puttaswamy, Orthopedic Surgeon, K.R. Hospital, Mysore, have deposed that the claimant was approached him on 15.09.2005 and he examined him and 4 found that he has fractures of choler bone, radius and ulna bones. He has examined the bones and after examining the x- ray, the claimant was not able to work as he used to work prior to the accident. The learned Commissioner for Workmen Compensation has determined the compensation amount taking into consideration of the wages at Rs. 4,000/- pm and 40% disability and awarded the compensation (1,800x199.40x40/100) Rs. 1,43,568/-.
6. Feeling aggrieved by the same, the Insurance Company has preferred this appeal challenging the quantum of compensation. The main grievance of the learned counsel for appellant is that the disability assessed at 40% by the learned Commissioner is on the higher side. The learned counsel for the appellant further submits that the claimant has renewed the driving license subsequent to the accident. Learned Commissioner might have assessed the loss of earning capacity in conformity with the schedule of the Workmen Compensation Act.
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The schedule envisages injuries commonly encountered in industrial practice. Further even for these, the schedule neither is, nor claims to be, complete and comprehensive. Further the schedule envisages total anatomical loss of organs, limbs or part thereof. In the Workmen's Compensation Act, the basic principle is not the anatomical existence of a part but persistence or disappearance of part of its functions. The function as meant in the Act is not function from the physiological point of view but from the utility point of view. This utility of the part injured has to be considered in relation to the part it plays in performing the function which comprises the wage earning capacity. It is well settled that correct assessment of extent of disability can only be made when the condition of the injured part reaches a fixed and unchangeable stage.
7. In this case the claimant has sustained fracture of left hand choler, radius and ulna bones and consequently he will not be able to perform the long hours of duty. This will 6 affect on wage earning capacity. It is well settled under the Workmen Compensation the functional disability of the claimant has to be assessed. In this case, the claimant is a driver, he has suffered three fractures, consequently, it will be difficult for him to drive a long distance and sit for long hours. Though the license has been renewed by the claimant, that itself will not be a ground to reduce the percentage of disability. Percentage of disability has been assessed by an expert. The insurance company has not examined the doctor with higher status to refute the evidence of the doctor who examined the claimant. In that view of the matter, this Miscellaneous First Appeal is devoid of merits, besides there is no substantial question of law involved in this case. Therefore, this Miscellaneous First Appeal is liable to be dismissed
8. In view of the above discussion, I pass the following:
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ORDER
1) This Miscellaneous First Appeal is dismissed.
Since, the main matter has been dismissed, Misc. Cvl. 3924/2009 filed for production of additional documents does not survive for consideration. Hence, it is also dismissed.
SD/-
JUDGE JTR