IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.2878/2010 (WC) C/W M.F.A. NO. 4064/2010 (WC) In M.F.A. No. 2878/2010 BETWEEN:
T RAMESH, S/O THIMMAIAH AGED ABOUT 22 YEARS R/O ADIVALA, HIRIYUR TALUK CHITRADURGA DISTRICT.
..APPELLANT (BY SRI SPOORTHY HEGDE, ADVOCATE) AND:
1. M/S.NEW INDIA ASSU. CO. LTD. BY ITS BRANCH MANAGER VASAVAI CIRCLE, CHITRADURGA.
2. SRI PERUMALU S/O CHETTIA GOUNDER, AGED ABOUT 44 YEARS, OWNER OF LORRY NO.KA-01-AD-2244 R/O NO.79, 3RD CROSS NEW EXTENSION, KALASI PALYA, BANGALORE-2.
..RESPONDENTS (BY SRI C R RAVISHANKAR, ADVOCATE, FOR R1, NOTICE TO R2 DISPENSED WITH V/C/O DTD:28.7.2010) *** THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 09.02.2010 PASSED IN LOC/WCA/NF/CR:NO.156/2005 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA DISTRICT, CHITRADURGA, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
In M.F.A. No.4064/2010 BETWEEN:
*** THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, VASAVI CIRCLE CHITRADURGA, REPRESENTED BY REGIONAL OFFICE, NO.2-B UNITY BUILDING ANNEX MISSION ROAD, BANGALORE-560 027 BY ITS DULY CONSTITUTED ATTORNEY.
..APPELLANT (BY SRI C R RAVISHANKAR, ADVOCATE) AND:
1. SRI T RAMESH, MAJOR S/O SRI THIMMAIAH R/A ADIVALA, HIRIYUR TALUK CHITRADURGA DISTRICT.
2. SRI PERUMAL, MAJOR S/O SRI CHETIYA GOUNDER OWNER OF LORRY NO.KA-01 -AD-2244, R/A 79, 3RD CROSS NEW EXTENSION, KALASIPALYA BANGALORE-560 002. ..RESPONDENTS (BY SRI SPOORTHY HEGDE, ADOVCATE, FOR R1, NOTICE TO R2 DISPENSED WITH V/C/O DATED 10.02.2014) *** THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 09.02.2010 PASSED IN LOC/WCA/NF/CR:NO.156/2005 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA, CHITRADURGA DISTRICT, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS ARE COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT These two appeals arise out of judgment and order dated 09.02.2010 passed by the Labour Officer and Commissioner for Workmen’s Compensation, Chitradurga in LOC/WCA/NF/CR No.156/2005 (hereinafter referred to as ‘the Commissioner’ for brevity).
2. The Commissioner by the impugned judgment and order directed the respondent No.2 – Insurance Company to pay compensation in a sum of Rs.94,592/- with interest at the rate of 7½% p.a. from the date of award within 30 days from the date of order, failing which, the respondent No.2 – Insurance Company has to pay interest @ 12% p.a. from 30 days of the award till its deposit.
3. Aggrieved by the said judgment and order the claimant has filed an appeal in MFA No.2878/2010 seeking enhancement of the compensation awarded by the Commissioner and the Insurance Company has filed an appeal in MFA No.4064/2010 seeking to exonerate the liability fastened on the Insurance Company.
4. Brief facts leading to these appeals are as hereunder:
On 26.02.2005, when the appellant – claimant in MFA No.2878/2010 was proceeding in a lorry bearing registration No.KA-01 AD-2244 as a cleaner under the employment of respondent No.2 – Perumal, owner of the said lorry from Hiriyur to Chitradurga on NH-4 and when the said lorry reached near New Bridge, Aimangala another lorry came from the opposite direction and dashed to the lorry in which the appellant-claimant was traveling. Due to the said impact he sustained injuries to his right shoulder clavicle bone and also all over the body. He was shifted to Government Hospital, Chitradurga.
5. The claimant filed claim petition under the provisions of Section 22 of WC Act before the Commissioner. The learned Commissioner after considering the aspect of accident, injuries, disability, claim for compensation and other aspects, allowed the claim petition and awarded compensation in a sum of Rs.94,592/- with interest at the rate of 7½% p.a. from the date of award to be payable within 30 days, failing which, it has to pay interest @ 12% p.a. from 30 days of the award till its deposit. Against the said judgment and award the claimant has filed an appeal in MFA No.2878/2010 seeking enhancement of the compensation awarded by the Tribunal and the Insurance Company has filed an appeal in MFA No.4064/2010 seeking to exonerate the liability fastened on the Insurance Company.
6. The learned counsel appearing for Insurance Company, at the out set submits that the Tribunal has erred in awarding compensation to the claimant and saddling the liability to pay the said compensation on the Insurance Company. It is further contended that the claimant has failed to establish the fact that he was working as a cleaner. The original complaint is manipulated and there are many corrections in the signature and it is a fabricated document in collusion with the claimant and the police so as to bring the case within the purview of Workmen Compensation Act. Further, the claimant has not examined his employer to prove that he was working under him and failed to prove the fact that the accident occurred while he was discharging his duties as a Cleaner under the employment. In fact, the claimant is an unauthorized gratuitous passenger in the lorry and the insurance policy does not cover the risk of the gratuitous passengers. The income of the claimant as shown at Rs.3,500/- per month is without any basis and in the absence of the evidence of the owner of the lorry, the Commissioner ought not to have taken the said amount as income of the claimant. He further contended that the evidence of PW2-Doctor that claimant suffered fracture of clavicle. But, it is well laid principles of law that the fracture of clavicle does not cause any permanent disability. The disability is assessed at 30 to 35% to the particular limb and 1/3rd to whole body it is about 10% to 12% is without proper application of mind and the Commissioner erred in holding that the claimant suffered disability lost earning capacity by 20%. Under these circumstances, the Commissioner ought to have rejected the claim petition. The learned counsel submits that interference by this Hon’ble Court is required and seeks to allow the present appeal by dismissing the claim petition of the claimant. Further, he submitted that in case of awarding any compensation to the claimant the liability be saddled on the owner of the vehicle and not on the Insurance Company as the insurance policy does not cover the unauthorized gratuities passengers, because the claimant has failed to prove that he was a cleaner working in the lorry. The learned counsel for Insurance Company has also produced X-ray reports of the claimant to establish that there is no fracture and hence the Insurance Company is not liable to pay the compensation.
7. As against the said submissions of the learned counsel for Insurance Company, the learned counsel appearing for claimant supports the impugned judgment and order. He contends that the compensation awarded under different heads is highly improper and on the lower side. The Commissioner has not determined the compensation properly under all the heads. Hence, he submits that there is a scope to award enhanced compensation. He prays the Court to enhance the compensation and allow the appeal filed by him.
8. On careful perusal of the oral and documentary evidence placed on record as also the documents produced by the learned counsel for the Insurance Company before this Court, it is clear that there is a fracture suffered by the claimant and the Commissioner has properly appreciated the material evidence and documents produced by the parties in the proper perspective. The compensation awarded by the Commissioner is on the higher side. It needs to be reduced from Rs.94,592/- to Rs.85,000/-. But the interest awarded by the Tribunal on different slabs needs to be examined.
9. Under these circumstances, the claimant is entitled to a compensation in a sum of Rs.85,000/- with interest at the rate of 12% per annum. Further, the Insurance Company is directed to deposit the difference amount, if any, within four weeks.
10. Accordingly, the appeals are partly allowed and the impugned Judgment and order passed by the Commissioner is modified to the above extent.
Sd/- JUDGE VK