IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MISCELLANEOUS FIRST APPEAL No.5343/2009 (WC) BETWEEN THE SENIOR DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, P.B.NO.237, 34/3, AKKAMAHADEVI ROAD, MMK. COMPLEX, 2ND FLOOR, P.J.EXTENSION, DAVANAGERE.
... APPELLANT (BY SRI.M.U.POONACHA, ADV.) AND 1. SRI.B.SHIVAKUMAR S/O. BHEEMAPPA AGED 38 YEARS R/AT SHAMANUR GRAM DAVANAGERE TALUK 2. SRI NAYAZ S/O PYARIJAN, MAJOR R/AT GUNDERI GRAM HOLALKERE TALUK CHITRADURGA ... RESPONDENTS (BY SRI.R.SHASHIDHARA, ADV. FOR R1 [ABSENT] SRI.M.R.HIREMATHAD, ADV. FOR R2 [ABSENT]) THIS MFA IS FILED U/S.30(1) OF WC ACT AGAINST THE ORDER DT.27.2.2009 PASSED IN WCA.CR.NO.299/2006 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, DAVANAGERE, AWARDING A COMPENSATION OF RS.70,941/-.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for the appellant present. Learned counsel for the respondents absent. No representation.
2. The matter is listed for ‘Final Hearing’ (oldest matters) and it is of the year 2009. Therefore, there are no grounds to grant adjournment. Hence, I proceed to hear learned counsel for the appellant and perused the records.
3. The appellant in this case is the insurance company and that it come up in an appeal against the judgment and order passed in W.C.No.299/2006 dated 27.02.2009 wherein the claim petition filed by the injured-workman came to be allowed in part and ordered compensation of Rs.70,941/- to be deposited within 30 days from the date of order. In default, the same shall carry interest at 12%.
4. The claimant-Sri.Shivakumar preferred the claim petition seeking compensation. Sri.Shivakumar was said to be working under respondent No.1-Nayaz S/o. Pyarijan as coolie in pickup vehicle bearing registration No.KA-16-A-204 and on 30.03.2005 when the claimant was proceeding in the said vehicle as coolie as per the direction of his owner-Nayaz, due to the rash and negligent driving of the offending vehicle, the accident occurred at Sasaluhalla village and as a result, the claimant sustained injuries and took medical treatment at Bapuji Hospital.
5. Sri.M.U.Poonacha, learned counsel for the appellant would submit that the claimant had preferred a claim petition before MACT, Chitradurga wherein he had stated in column No.22 that the accident occurred on 30.03.2005 at 9.00 p.m. when he was proceeding in Piaggio three wheeler luggage auto vehicle bearing registration No.KA-16-A-204 from Sasaluhalla to Muthugadur village as a passenger. He further stated that due to the said accident, he sustained injuries. Learned counsel for the appellant would further submit that the said petition was dismissed as withdrawn. But the fact remains that the accident was said to have been occurred when the claimant was going in a three wheeler as a passenger. It is further submitted that the claim petition before the Commissioner for Workmen’s compensation was filed as after thought to suppress the admitted fact.
6. Learned counsel for the respondents are not available for mentioning their defence. Their absence is placed on record.
7. In the light of the above, the moot question is that ‘Whether the petitioner was estopped from seeking relief from the Commissioner for Workmen’s Compensation.’ 8. Insofar as the monthly earning is concerned, the claimant has stated before the Commissioner for Workmen’s Compensation that he was working as a Coolie in pickup vehicle bearing registration No.KA-16-A-204 and earning Rs.3,900/- per month. However, the vehicle number mentioned in the petition filed before the MACT, Chitradurga-Ex.R1 and the petition filed before the Commissioner for Workmen’s Compensation is one and the same.
9. Thus I am of the opinion that mere preferring of the claim petition before the Tribunal which is not adjudicated may not take away the right of the claimant to claim compensation before proper forum.
10. Insofar as the grant of quantum of compensation is concerned, learned Commissioner taking into consideration the fact that the claimant was aged about 35 years at the time of accident, disability suffered by him is at 20% and was earning Rs.3,000/- per month, has awarded compensation of Rs.70,941/-.
11. Thus I do not find any ground to interfere with the judgment and order of the Commissioner granting compensation of Rs.70,941/- and directing the insurance Company to deposit the compensation amount within one month from the date of the order in default, the same shall carry interest at 12% till payment.
Accordingly, the appeal is rejected.
The amount in deposit is ordered to be transmitted to the concerned jurisdictional Commissioner.
Sd/- JUDGE VM CT:HR