IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 Before The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous First Appeal No.5172 of 2011 (WC) C/W MISCELLANEOUS FIRST APPEAL NO.5434 OF 2010 (WC) IN MFA NO.5172 OF 2011 Between:
THE ORIENTAL INSURANCE CO. LTD., II FLOOR, 4TH CROSS, III MAIN, CHAMARAJAPET, BENGALURU DULY REPRESENTED BY:
THE REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45, RESIDENCY ROAD, BENGALURU – 560 025 BY ITS MANAGER (BY SRI A.RAVISHANKAR, ADVOCATE) And:
1. SRI MANJUGOWDA @ MANJU @ DEVENDRA, ... APPELLANT AGED ABOUT 32 YEARS, SON OF SRI CHANNEGOWDA, HUNASAHALLI, ALUR TALUK – 573 213 HASSAN DISTRICT.
2. SRI G.KRISHNAPPA AGED ABOUT 50 YEARS, SON OF SRI GOUNDASWAMY, NEAR RANGANATHA MILK DAIRY, HEGGANAHALLI, BENGALURU – 560 091 ... RESPONDENTS (BY SMT.M.C.UMADEVAMMA, ADVOCATE FOR R1; SMT.B.S.JYOTHI, ADVOCATE FOR R2;
THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC.30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED 30.01.2010 PASSED IN WCA/CR NO.14/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMENS’ COMPENSATION, SUB-DIVISION-3, BENGALURU, AWARDING A COMPENSATION OF RS.2,60,292/- WITH INTEREST.
IN MFA NO.5434/2010 BETWEEN:
SRI MANJUGOWDA @ MANJU @ DEVENDRA SON OF CHANNEGOWDA, AGED ABOUT 28 YEARS, OCCUPATION-NIL (DRIVER-TEMPO), RES: HUNASANAHALLI, ALUR TQ., HASSAN DISTRICT ... APPELLANT (BY SMT. M.C.UMADEVAMMA, ADVOCATE) AND:
1. ORIENTAL INSURANCE COMPANY LTD., 2ND FLOOR, 4TH CROSS, 3RD MAIN, CHAMARAJPET, BENGALURU.
2. KRISHNAPPA G SON OF GOWNDASWAMY, NEAR RANGANATH MILK DAIRY, HEGGANAHALLI, BENGALURU ... RESPONDENTS (SRI SRI A.RAVISHANKAR, ADVOCATE FOR R1; SMT B.S.JYOTHI, ADVOCATE FOR R2) THIS MISCELLENEOUS FIRST APPEAL FILED UNDER SECTION 30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED 30.01.2010 PASSED IN WCA/NFC/CR-14/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMENS’ COMPENSATION, SUB-DIVISION-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLENEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment These appeals are filed challenging the judgment and award dated 30.01.2010 in WCA/NFC/CR-14/2004 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-III, Bengaluru (for short ‘the Commissioner’). The Commissioner has allowed the claimant’s petition in WCA/NFC/CR-14/2004 awarding a total sum of Rs.2,60,292/- along with interest at the rate of 7.5% and 12% for the corresponding period. The appeal in M.F.A.No.5172/2011 is filed by the Insurer of the lorry bearing registration No.KA-02-B-7519, and the appeal in M.F.A.No.5434/2010 is filed by the claimant. The appeals are taken up for final disposal with the consent of the learned counsel for the parties.
2. The claimant filed this claim petition in WCA/NFC/CR-14/2004 under the Workmen’s Compensation Act, 1923 seeking compensation for the personal injuries suffered by him. The claimant contended that on 15.01.2004 he was driving tempo bearing registration No.KA-02-B-7519 from Bengaluru to Kolar. He was transporting soaps and detergents to be delivered to M/s Sai Associates at Kolar. When he was near Mugabala village, a lorry coming from the opposite side, dashed against the tempo. He suffered fracture of lower limbs with wounds on his forehead and chest. He was shifted to Bowring and Lady Curzon Hospital, Bengaluru, where he was an inpatient.
3. The owner of this tempo bearing registration No.KA-02-B-7519 filed his objection statement admitting that the claimant was working with him as a cleaner and he was involved in an accident as asserted by him when he was driving the tempo. However, he denied the assertion by the claimant that he was being paid wages in a sum of Rs.4,000/- per month. The Insurer of the tempo filed objection statement resisting the petition inter alia denying the accident and the involvement of the tempo bearing registration No.KA-02-B- 7519.
4. The Commissioner has framed Issues which required the claimant to prove that he was a workman (employee), and he was injured in the course of the employment resulting in partial permanent disability. The claimant examined himself as PW.1 and he marked the Wound Certificate, a copy of the FIR and the other Police records as exhibits. The claimant also examined Dr. P. Niranjan Murthy, a consultant Orthopaedic Surgeon, M/s LNR and Prerana Diagnostic Centre, Bengaluru as PW.2. The claimant, in reiteration of his claim petition averments, stated in his evidence that he was working as a driver with the owner of the tempo and he met with an accident on 15.01.2004 while he was travelling from Bengaluru to Kolar. He was driving the tempo transporting soaps and detergents to be delivered to M/s Sai Associates, Kolar. He has listed the injuries suffered by him and the different surgeries undergone including plastic surgery. He has stated that he cannot lift weight, he cannot stand or walk for long, and importantly, he has asserted that he cannot drive because of the injuries suffered by him.
5. The Doctor has stated that the claimant suffered Type-II Compound Comminuted fracture of both the bones of the right leg with threatened vascular complication. The Doctor in his report has stated that the claimant was treated with antibiotics, wound dressing and above knee cast, and the claimant was discharged on 23.02.2004. Further, the Doctor after detailing the injuries suffered by him and the nature of recovery, has opined that the claimant has suffered shortening of right limb in tibial component and has stated that the claimant will be unable to squat or take part in any physical activities. The Doctor ultimately has assessed the whole-body disability at 15% with the disability of the lower limb at 40%.
6. The Commissioner on appreciation of this evidence has concluded that the claimant is able to demonstrate that he was indeed in employment with the owner of the tempo bearing registration No.KA-02-B-7519 and he met with an accident on 15.01.2004 while he was driving this tempo. The Commissioner taking the income of the claimant at Rs.4,000/- per month has capitalized this amount with the appropriate factor based on the undisputed age of the claimant as provided under the Act.
7. The learned counsel for the Insurer in support of the appeal filed on behalf of the Insurer argued that the Commissioner has overlooked obvious discrepancy in the claimant’s case about the manner of the accident, the involvement of the vehicle and the persons who were travelling with him at the time of the accident. The learned counsel submitted that these material discrepancies entirely belie the claimant’s case that he was injured in the course of his employment involving the tempo bearing registration No.KA-02-B-7519 insured with the Insurer. The impugned judgment, which is rendered overlooking material discrepancies, cannot be sustained. The material discrepancies pointed out by the learned counsel for the Insurer are as follows:
a) The claimant, in his cross examination has stated that he was travelling alone in a tempo at the time of the accident and he was not accompanied by either a cleaner or any other person. However, it is indisputable from the contents of FIR in Crime No.5/2004, which is registered at his instance, that one Sri Vijay Kumar is shown as having died and the claimant has stated before the Police that at the time of the accident he was travelling with the deceased cleaner, Sri Vijay Kumar and another friend.
b) Thus, the claimant is categorical before the Police that the deceased Sri Vijay Kumar, was working as a cleaner, he suffered serious injuries and he succumbed at the place of accident.
c) The claimant, according to his own say, was hospitalised with Bowring and Lady Curzon Hospital, Bengaluru and he regained consciousness only after two days. The Wound Certificate issued by the Bowring and Lady Curzon Hospital, Bengaluru shows that the history of the accident as between two vehicles i.e., auto rickshaw bearing registration No. KA-03-2E99 and a Kinetic Honda bearing registration No.KA-05-W6950.
d) As per the FIR in Crime No.5/2004, which was lodged at the instance of the claimant, it is recorded that the accident occurred on 15.01.2004 at 8’0 clock. However, the claimant in his statement has stated that he regained consciousness only after two days from the date of the accident, and if he had regained consciousness after two days of the accident, the first information could not have been registered on the same day.
e) The claimant has described himself with too many aliases. He calls himself Manju @ Manju Gowda @ Devendra, but no documents have been produced to show that he is known by these different names. These different names also indicate that there is an effort to falsely implicate the tempo bearing registration No.KA-02-B-7519.
8. In rebuttal, the learned counsel for the claimant submitted that the oral testimony of the claimant and the Doctor when read in conjunction with the undisputed medical records demonstrate that the claimant is injured and he has undergone different procedures for the injuries suffered. In fact, photographs of the claimant-injured is part of the record as Ex.P5. This shows that he has suffered injuries which has resulted in obvious disfigurement. The learned counsel places emphasis on Medico Legal Register issued by the Bowring and Lady Curzon Hospital, Bengaluru, which records the history of the road accident. The learned counsel argued that this document mentions that the claimant was injured in an accident involving the tempo and a lorry (offending vehicle) and that he was travelling in the tempo at the time of the accident. This evidence should take precedence over the inconsistencies pointed out by the learned counsel for the Insurer.
9. The learned counsel for the claimant in support of the appeal filed in MFA No.5434/2010, which is filed by the claimant for enhancement in the compensation, contended that the Doctor’s evidence is that the claimant cannot drive because of the injuries suffered. The claimant has demonstrated by placing the evidence on record that he was working as a driver at the time of the accident and because of the injury suffered, he is entirely disabled and therefore, the Commissioner has erred in taking the disability at 50% instead of 100%. The learned counsel also relied upon the decision of the Division Bench of this Court in MFA No.3178/2003(WC) decided on 30.07.2007 in support of his canvass that the Commissioner ought to have taken the disability at 100%.
10. The learned counsel for the Insurer met these submissions arguing that there is no evidence about the claimant having got the driving licence cancelled, and if indeed the claimant is rendered incapable of driving because of the injuries, he ought to have produced necessary proof of surrender of the licence. There is no evidence to reasonably infer that the claimant, because of the injuries suffered, is rendered incapable of working as a driver.
11. In the light of the rival submissions, the substantial questions that arises for consideration are:-
a) Whether the Commissioner has concluded that the claimant was injured in the course of his employment while driving the tempo bearing registration No.KA-02-B-7519 overlooking material evidence which ought to have been considered.
b) Whether the Commissioner has not erred in concluding that the claimant was injured during the course of his employment on 15.01.2004.
c) Whether the Commissioner is justified in taking the loss of earning ability at 50%.
12. It is settled that an appeal under Section 30 of the Employee’s Compensation Act, 1923 cannot be entertained unless a substantial question of law is framed, and it is equally settled that if the findings by the Commissioner are perverse in the sense that his findings are not supported by material on record or the findings are totally opposed to the material on record, interference under Section 30 of the said Act would be justified as that would lead to the substantial questions of law. The canvass on behalf of the Insurer is that the Commissioner has overlooked the material circumstances in arriving at the conclusion that the claimant was injured on 15.01.2004 in the course of his employment and because the Commissioner has overlooked the material evidence, the judgment is perverse. The argument by the learned counsel for the Insurer is based on the evidence led in by the claimant, and in fact, the Insurer has not led any separate evidence.
13. The Commissioner in answering Issue No.1 in favour of the claimant has relied upon the oral testimony of the claimant and the Police records and the admission by the owner of the tempo that the claimant was injured in the course of the employment while driving the tempo. The Commissioner, except perfunctorily stating that the Insurer is not able to prove its defence that the claimant was not injured during the course of employment, has not considered the probative value of the police records in the light of the inconsistencies.
14. The claimant has relied upon the FIR as the first document to establish his case that he was injured in the course of his employment. The FIR, which is registered on the claimant’s own statement, reads that the claimant is categorical that he was travelling with two others in a tempo at the time of the accident. But in his evidence, he states that he was travelling alone and there was nobody else. The reason for this important deviation from the statement made to the Police is difficult to fathom, unless sufficiently explained, and there is no explanation whatsoever. This deviation creates a serious doubt about the claimant’s bona fides in pleading that he was injured while driving the tempo bearing registration No.KA-02-B-7519. The Wound Certificate and the Case Sheet are the next set of documents relied upon by the claimant. The Wound Certificate refers to involvement of an auto rickshaw with a very different registration number and a two-wheeler. The case sheet refers to an accident between a tempo and lorry and the claimant travelling in the tempo. There is no explanation by the claimant for this discrepancy, and again in the considered opinion of this Court, a material discrepancy which cannot be overlooked in deciding on the question whether the claimant was injured while driving the tempo bearing registration No.KA-02-B- 7519.
15. The claimant has relied upon the evidence of Dr.P.Niranjan Murthy, who has been examined as PW-2. The doctor has stated that he was working as a Consultant Orthopaedic Surgeon at M/s. LNR and Prerana Diagnostic Centre, Bengaluru and as on 15.01.2004, he was working with Bowring and Lady Curzon Hospital, Bengaluru. The evidence of this witness is also material. The Doctor has stated that the claimant was treated with antibiotics, above knee cast and wound dressing of leg. The doctor does not speak about the claimant undergoing any surgical procedure. The claimant, on the other hand, states that he had to undergo surgery for screw fixators as well as for plastic surgery. The Doctor has not spoken of the same, nor do the medical records refer to the same. These circumstances further undermine the claimant’s evidence about the involvement of the tempo.
16. The Commissioner, only after considering these circumstances, could have arrived at a conclusion that the claimant was injured in the course of his employment involving the tempo bearing registration No.KA-02-B-7519. The conclusion by the Commissioner that the claimant was injured in the course of employment involving the tempo bearing registration No.KA-02-B-7519 without considering these circumstances and only perfunctorily referring to the Exhibits, is perverse. Further, the Commissioner could not have found in favour of the claimant and as against the Insurer only because the owner of the tempo in his Objection statement stated that the claimant was in his employment and the claimant suffered injuries in the course of his employment. The first question is answered accordingly. Therefore, the Insurer should succeed in the appeal.
17. The Doctor has assessed the whole-body disability at 15%, however the Commissioner has taken the loss of earning capacity at 50%. As rightly pointed out by the learned counsel for the Insurer, there is nothing on record to indicate or establish that post the injuries, the claimant has surrendered his licence or has not been without employment either as a driver or otherwise. As such, the claimant cannot succeed in the appeal in MFA No.5434/2010, and in any event, the Insurance Company is absolved of the liability in the light of the above discussion.
18. In the light of the above discussion, the appeal in MFA No.5172/2011 by the Insurance company is allowed and the impugned judgment and award dated 30.01.2010 in WCA/NFC/CR-14/2004 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-III, Bengaluru is modified absolving the liability of the Insurance Company and the appeal in MFA No.5434/2010 by the claimant is dismissed.
Sd/- Judge KPS/RB Bmspj:
28.01.2020 MFA NO. 5172/2011 C/W. MFA NO.5434/2010 Order on ‘being spoken to’ The learned counsel for the appellant in MFA No.5172/2011 has moved a memo for the appeals to be listed for ‘Being Spoken To’.
The learned counsel for the appellant in MFA No.5172/2011 submits that the appeal by the Insurance Company in MFA No.5172/2011 is allowed modifying the impugned judgment and award dated 30.1.2010 absolving the liability of the appellant – Insurance Company. As such, the amount in deposit will have to be returned to the Insurance Company. This request would be consequential to the appeal being allowed and as such, is accepted.
The office is directed to refund the amount in deposit to the appellant in MFA No.5172/2011.
Sd/- Judge SA