Karnataka High Court
M/S The Oriental Insurance Company ... vs Sri Chennappa S/O Chennarayappa on 28 October, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.No.6850/2009
C/W
M.F.A.No.6851/2009 (WC)
M.F.A.No.6850/2009
BETWEEN:
M/s.The Oriental Insurance
Company Limited
Divisional Office-8, No.22
DVG Road, Through Regional
Office, Leo Shopping Complex
No.44/45, Residency Road
Bangalore-25, represented by
its Regional Manager. ... Appellant
(By Sri B S Umesh, Adv.)
AND:
1. Sri Chennappa
s/o.Chennarayappa
aged about 39 years
r/a.Bidalapura village
Chennarayapatna Hobli
Devanahalli Taluk
Bangalore Rural District.
2
2. Abdul Jawed
s/o.Mohammed Kasim
Major, Exact not known
to appellant,
r/a.Sankanipura Village
Kasaba Hobli, Hosakote
Taluk, Bangalore Rural
District. ... Respondents
(By Sri K T Gurudev Prasad, Adv. for R1)
This MFA is filed Under Section 30(1) of
Workmen's Compensation Act, 1923 against the
judgment dated 21.5.2009 passed in CWC/B-3/NFC/
CR-31/2005 on the file of the Labour Officer and
Commissioner for Workmen Compensation, Sub-
Division-3, Bangalore, awarding a compensation of
Rs.1,10,502/- with interest @ 12% p.a.
M.F.A.No.6851/2009
BETWEEN:
M/s.The Oriental Insurance
Company Limited
Divisional Office-8, No.22
DVG Road, Through Regional
Office, Leo Shopping Complex
No.44/45, Residency Road
Bangalore-25, represented by
its Regional Manager. ... Appellant
(By Sri B S Umesh, Adv.)
3
AND:
1. Sri Prakash
s/o.Ramaiah
aged about 28 years
r/a.Reddyhalli village
Chennarayapatna Hobli
Devanahalli Taluk
Bangalore Rural District.
2. Abdul Jawed
s/o.Mohammed Kasim
Major, Exact not known
to appellant,
r/a.Sankanipura Village
Kasaba Hobli, Hosakote
Taluk, Bangalore Rural
District. ... Respondents
(By Sri K T Gurudev Prasad, Adv. for C/R)
This MFA is filed Under Section 30(1) of
Workmen's Compensation Act, 1923 against the
judgment dated 21.5.2009 passed in CWC/B-3/NFC/
CR-30/2005 on the file of the Labour Officer and
Commissioner for Workmen Compensation, Sub-
Division-3, Bangalore, awarding a compensation of
Rs.1,32,822/- with interest @ 12% p.a.
These Appeals coming on for hearing this day, the
Court delivered the following:
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JUDGMENT
Though these appeals have been admitted on 24.1.2011, learned Advocates appearing for the parties would fairly submit that substantial questions of law have not been formulated, and hence, they have requested to formulate the same.
2. Having heard the learned Advocates appearing for the parties and on perusal of the order and award in question, I am of the considered view that following substantial question of law common to both the appeals would arise for my consideration.
"(1) Whether loss of earning capacity of the workmen is in same proportion to the loss of disability sustained by the claimants? (2) Whether the Commissioner for Workmen's Compensation was justified in relying upon the evidence of doctor to award compensation to them?
(3) Whether interest awarded is in
consonance with Section 4(A)(3) of
Workmen's Compensation Act, 1923?
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3. It is the contention of Sri Umesh, learned counsel appearing for the appellant-insurer in these appeals that when doctor who has been examined on behalf of the claimant, has opined that the disability sustained by the workmen was to an extent of 25% and 15% respectively and whole body disability is at 8%, Commissioner for Workmen's Compensation could not have held that loss of earning capacity to them was to an extent of 25% and awarding of compensation on the said basis is erroneous. He further contends that Commissioner could not have awarded compensation as such in the absence of any evidence to indicate that to the extent of disability sustained by them, there has been loss of earning capacity and in the absence of any positive evidence tendered by Medical Practitioner as required under Section 4(1)(c)(ii) of the Act, Commissioner could not have considered the disability at 25% as the factor for determining the loss of earning capacity and awarded compensation. Hence, learned 6 counsel for the Insurer prays for answering the substantial questions of law in favour of the insurer by considering loss of earning capacity at 8% which is the disability sustained by them to the whole body.
4. Though Sri B S Umesh, learned counsel appearing for appellants would vehemently contend that there is no relationship of employer and employee between the appellant and 1st respondent herein, I am not inclined to accept the said contention for simple reason that the insurer having stepped into the shoes of the owner of the offending vehicle who is the employer of the claimants has failed to summon the owner to prove the plea putforth by it nor has placed any material to disbelieve the evidence of workmen. Hence, formulating question of law in this regard does not arise.
5. Per contra, Sri K T Gurudevprasad, learned counsel appearing for the claimants would support the 7 judgment and order passed by the Commissioner for Workmen's Compensation and submits that the compensation awarded is just and proper and it does not call for interference. Hence, he prays for dismissal of the appeals.
BRIEF FACTS OF THE CASE:
6. On account of a road traffic accident that occurred on 18.1.2005, 1st respondent in these two appeals filed claim petitions under Section 10 of Workmen's Compensation Act, 1923 seeking compensation interalia contending that in the course of employment the accident had occurred and it arose out of the employment. Hence, they filed claim petitions seeking compensation before the Commissioner for Workmen's Compensation, who adjudicated the same after considering rival pleas putforth and awarded compensation of Rs. 1,10,502/- and Rs.1,32,822/-
respectively to the workmen in these two appeals. 8 RE: SUBSTANTIAL QUESTIONS OF LAW (1) & (2):
RE: MFA NO. 6850/2009 (CWC/B-3/NFC/CR-31/2005)
7. Having heard learned Advocates appearing for the parties and on perusal of the judgment and award in question as also medical evidence available on record, it is seen that claimant in CWC/B-3/NFC/CR-31/2005-Chennappa had sustained dislocation of right shoulder with fracture of greater tuberocity of right humerus. He was treated for dislocation of bone under IV sedation. He was inpatient for two days at Ashwini Hospital, Hoskote. Doctor who was examined as PW2 has opined that on clinical evaluation made by him on 10.9.2008, he noticed that workman was complaining weakness of right shoulder with pain when it is in movement. The workman had periarthritis of right shoulder with painful and restriction in the movement of right shoulder. Doctor has opined that the whole body disability was 8%. He has not stated that the disability sustained by the 9 claimant would reduce his earning capacity to the extent of disability sustained by him. Commissioner for Workmen's Compensation was required to examine the medical records as also evidence of the doctor and arrive at loss of earning capacity of the claimant.
Undisputedly, workman herein is a coolie by profession. He has to lift heavy goods/materials in discharge of his duties. On account of fracture of right humerous and there being restriction of movement of right shoulder, it is bound to reduce his earning capacity to the extent of 25% as opined by the Commissioner. The Workmen's Compensation Commissioner has taken into consideration the medical evidence available on record as well as the incapacity caused to the claimant to carry on his avocation of coolie and has arrived at a conclusion that on account of the injury sustained and consequential disability suffered, his loss of earning capacity would get reduced by 25%. Said finding is based on proper evaluation of the entire evidence 10 available on record. Hence, I do not find any good ground to interfere with the compensation awarded by Commissioner for Workmen's Compensation in assessing the loss of earning capacity of workman at 25% by taking into consideration the injuries sustained and consequential disability suffered by him. Cross- examination of doctor does not indicate that his testimony is to be disbelieved. Merely because, doctor has not assessed the loss of earning capacity with reference to disability sustained cannot be a ground for interference when medical evidence has been rightly evaluated by Commissioner to arrive at a conclusion that claimants earning capacity is reduced to an extent of 25%. Hence, I do not find any good ground to interfere with the order and award passed by Commissioner for Workmen's Compensation in No.CWC/B-3/NFC/CR-31/2005.
11RE: MFA No.6851/2009 (CWC/B-3/NFC/CR-30/2005)
8. Insofar as, claimant in No.CWC/B-3/ NFC/CR-30/2005 is concerned, records would indicate that workman had sustained fracture of calcaneum of both heels. He was conservatively treated at Ashwini Hospital for two days. Evidence of doctor would indicate that workman was inpatient at said Hospital for two days. Workman came to be evaluated for disability by PW2 doctor on 10.9.2008. Though doctor has stated in the cross-examination that there is restriction of ankle and there is restricted movement i.e. subtalar joint movement in both lower limbs. In his cross examination, he has admitted that the fractures are united. Thus, when there is evidence of medical practitioner available on record concluding that there is 15% disability or loss of earning capacity, same could not have been ignored by Commissioner for Workmen's Compensation to arrive at a conclusion that there is loss of earning capacity to an extent of 25% to the 12 claimant. Hence, to that extent, order and award passed by the Commissioner for Workmen's Compensation in CWC/B-3/NFC/CR-30/2005 requires to be modified as under:
Rs.2400 x 222.37 x 15 = Rs.80,053.20 100 RE: SUBSTANTIAL QUESTION OF LAW No.(3) :
(common to both the appeals)
9. Commissioner for Workmen's Compensation has awarded interest at 12% p.a. payable after 60 days from the date of passing of the award. The said issue is no more res integra in view of law laid by the Apex Court in the case of ORIENTAL INSURANCE COMPANY LIMITED V. SIBY GEORGE AND OTHERS reported in 2012 ACJ 2126 whereunder it has been held that workmen would be entitled to interest @ 12% p.a. payable after 30 days from the date of accident. Hence, to that extent, the order and awards passed in both the appeals is to be modified.
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10. Hence, the following:
ORDER
a) MFA No.6850/2009 is hereby disposed of.
b) MFA No.6851/2009 is hereby allowed in part and the order and award passed on 21.05.2009 in CWC/B-3/NFC/CR-30/2005 is hereby modified and in substitution to compensation awarded by Commissioner for Workmen's Compensation, a sum of Rs. 80,053.20 is hereby awarded.
(c) The judgment and award passed in CWC/B-3/NFC/CR-30/2005 and CWC/B-3/NFC/CR-31/2005 is modified and held that workmen would be entitled to interest on the award amount @ 12% p.a. payable 14 after 30 days from the date of accident.
(d) Amount in deposit in these appeals are ordered to be transmitted to the jurisdictional Commissioner for Workmen's Compensation by the Registry forthwith.
In view of disposal of the appeals, the application for stay does not survive for consideration. Accordingly, it is dismissed.
Sd/-
JUDGE Bkm.