Karnataka High Court
United India Insurance Co.Ltd vs Bettappa S/O Kareyappa on 3 April, 2012
Author: B.Manohar
Bench: B.Manohar
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This M.F.A. is flied under Section 30(1) of the
Workmen's Compensation Act against the judgment and
order dated 5.12.2008 passed in WCA/CR/447/2007 by the
Commissioner for Workmeris Compensation, Raichur
District. Raichur.
This M.F.A. having been reserved for judgment coming
on for pronouncement of judgment this day. the Court
delivered (he following:
JUDGMENT
'the United India Insurance Co. Ltd. being aggrieved by the judgment and order dated 5.12.2008 in No.WCA/CR/447/2007 passed by the Labour Officer and Commissioner for Workmen's Compensation, Raichur District. Raichur. (hereinafter referred to as WCC') has filed this appeal.
2. The facts of the case are as follows:
The 1st respondent filed the claim petition before the WCC contending that he was working as a Hamali in a Tipper bearing No.KA-34/3672 belonged to the 2;c! respondent. On 13.3.2004, on the instructions of the owner of the vehicle all er loading sized stones in Obaiapura. the said vehicle was 4. proceeding towards Bellary. Due to the breaking of stairing rod. the driver of the Tipper lost control over the vehicle and dashed agaInst a road--side tree. In view of the accident. the claimant sustained fracture of left wrist and fibula.
Immediately, lie was shifted to the Government Primary Health Center, Thorangal, where he has taken treatment.
Thereafter, he has taken treatment in a private hospital. Due to the accident, he cannot work as a hamall. At the time of accident, he was aged about 30 years and earning a sum Rs. 150/- per day. lnsplte of the request made to the owner of the vehicle, he did not pay the compensation. Hence, the claim petition was filed seeking for compensation.
3. In pursuance to the notice Issued by the WCC. the owner of the vehicle entered appearance and filed objection s statement admitting the accident occurred on 13.3.2004 at id the 1 ' respondent was working as Hamali in the rripper bearing No.KA-34/3672 belonged to him. He was paying the claimant a sum of Rs. 150/- per day. He denied the nature of
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4injuries sustained by the claimant. Since the vehicle is covered by the Insurance, the Insurer has to compens ate the claimant and sought for dismissal of the claim petit ion against the owner of the vehicle.
4. The Insurer filed objections denying the entire averments made in the claim petition contending that there is no relationship of master and servant between the claim ant and the owner of the vehicle. No document has been produced before the WCC to show that the claimant has sustained injuries in the road traffic accident that occu rred on 13.3.2004 and the owner of the vehicle was paying him a sum of Rs. 150/- per day. Due to the rash and negligent driving of the Tipper by its driver, the claimant susta ined injuries. Hcnce, for the negligence on the part of the drive r, the Insurer cannot be held liable to pay compensation thou gh the vehicle is covered by insurance. Hence. the Insurer sought for dismissal of the claim petition against it.
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certifIcate. disability certificate and RC book of the Tipper as Exs.Pi to P7. Though he was cross-examined by the Insurer, nothing contrary has been elicited in the cross-exa mination.
Tile doctor who had issued the disability certificat e, iii his evidence has deposed that In view of the road traff ic accident occurred on 13.3.2004, the claimant has susta ined fracture of left wrist and fracture of fibula. On clinical exam ination of the claimant, he found that there is mal-unlon of fractured portion. In view of the mal-unlon oi the fractured portion, he Cannot lift the heavy objects. The doctor has assessed the loss of earning capacity to an extent of 35%. The Insurer in his evidence has deposed that the accident has occurred due to the negligence on the pan of the driver of the Tipper.
Hence, the insurer is liable to pay compensation . He got marked the copy of the insurance policy as Ex.R1.
8. On the basis of the pleadings of the parties and oral and doctinwntary evidence and other exhibits prod uced by the parties, the 'CC held that the claimant has sustained
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9. Sri R V Nadagouda. the Advocate appearing for the appellant contended that the order passed by the WCC is contrary to law. No document has been produced befo re the WCC to show that the claimant has sustained injuries in the road traffic accident that occurred on 13.3.2004. The claimant was travelling as an unauthorised passen ger In the goods vehicle. Hence, he is not entitled for compensation.
Though the accident occurred In the year 2004 , the claim petition was filed in the year 2007. The WCC ought not to have entertained the claim petit ion. Further, the loss of earning capacity assessed by the doctor is con trary to law.
The doctor who issued the disabllityi certificat e is not the doctor, who has treated the claimant. Hence, the disability certificate issued by the doctor cannot be believed.
Therefore, the Advocate appearing for the appellant soug ht for setting aside the same by allowing this appeal.
10. On the other hand. Sri Basavaraj R Math. the Adv ocate appearing for the I '' respondent/claimant contende d that i he L 9 WCC after considering the oral and documentary evidence proth iced by the part ies and taking into consideration the police report and the objections filed by the owner of the vehicle, held that due to the breaking of stairing rod, the 'ripper was met with an accident and the claimant sustained injuries. The doctor in his evidence deposed that there is fran tire of left wrist arid fracture of left fibula. The claimant being the hamali in the Tipper in view of fracture of left wrist and fracture of left fibula cannot work as Hamali.
Accordingly. the doctor has assessed the loss of earning capacity to an extent of 35%. Therefore, he submits that there is no Infirmity or irregularity in the order passed by the WCC and sought for dismissal of the appeal.
11. I have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence produced by the parties.
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12. Upon hearing the learned counsel appearing for the parties, the only point that arises for consideration in this appeal is:
Vhet her the order passed by the VCC requires interference by this Court?
13. The records produced by the parties and the evidence adduced by the parties clearly disclose that the claimant was working as a hamall in the Tipper belonged to the 2nt! respondent. While transporting the sized stones from Obalapur to Bellary. due to the breaking of stairing rod.
the Tipper had met with an accident and the claimant sustained the Injuries. The owner of the vehicle himself admitted that the claimant was working as Harnall. The Insurer has also not disputed the accident of the Tipper. Hence. It is clear that the claimant was working as Harnali in the said Tipper and there exists the relationship of master and servant between he claimant, and the owner of the vehicle.
14. Though there was delay in filing tiic claim petition, the xkrc.c afier cnnsidcriiig the contentions of the parties 4 II condoned the delay In filing the claim petition. Ther eibre. It is not open to the Insurer to raise the issue of delay onceagain in this appeal.
15. With regard to the quantum of compensati on is concerned, the doctor. who has issued the disability certillcate, in his evidence deposed that due to the fracture of left wrist and fracture of left fibula, It Is diffi cult to the claimant to lift the heavy objects. The doctor has deposed that due to the fracture of left wrist and left fibula, the claimant cannot work as Harnali and lift heavy objects. He assessed the earning capacity to an extent of 35% . On the basis of the said assessment of the loss of earn ing capacity.
the compensation has been awarded by the WCC.
Looking at the injury stistalned by the claimant, the loss of earning capacity assessed by the doctor is erroneous hi law. There cannot be loss of earning capacity to an extent of 35% for the fracture of left wrist and fracture of left Ilbula. The disability certificate issued Is not by the treating doctor. On the other 12 hand. Dr.Lakshminarayana. MD, has oniy assessed the disability on the basis of the wound certificate and medicines prescribed by the other doctors. Hence, the order passed by the WCC requires modification insofar as the assessment of loss of earning capacity is concerned. The claimant was aged about 30 years as on the date of accident. At the young age.
there is no difficulty for union of fractured portion. Hence taking into consideration the loss of earning capacity to an extent of 30%. the compensation has to be reassessed.
Hence. the claimant is entitled for compensation of Rs.88,714/- as against Rs.l.03,499/- awarded by the WCC.
Accordingly. I pass the following:
ORDER The appeal is allowed In part. The claimant Is entitled for compensation of Rs.88,714/- as against Its. 1,03,499/- awarded by the WCC. Accordingly. the judgment and order dated 5.12.2008 passed in WCA/CR/447/2007 by the Coinin issioner br Worknwn's Corn pn isation. Raici iur I I 7
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