IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO.4611 OF 2011 (WC) BETWEEN:
UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE, SUNDAR ARCADE B N ROAD, OPP: SUBURB BUS STAND MYSORE, NOW REPRESENTED BY ITS REGIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. REGIONAL OFFICE 5TH & 6TH FLOOR, KRISHI BHAVAN NRUPATHUNGA ROAD BANGALORE-56 001 ... APPELLANT (BY SRI. A.N.KRISHNA SWAMY, ADVOCATE ) AND:
1. BHUJANGEGOWDA S/O KEMPEGOWDA @ BODAREGOWDA NOW AGED ABOUT 37 YEARS R/O HEBBAKAVADI VILLAGE KOTHATHI HOBLI MANDYA TALUK 2. CHIEF ADMINISTRATIVE OFFICER/ GENERAL MANAGER MYSUGAR COMPANY LTD MANDYA 3. CHANNAPPA S/O HAJI MAYIGAIAH MAJOR, R/O BELUR VILLAGE MANDYA TALUK ... RESPONDENTS (NOTICE SERVED TO R1 TO R3) This Miscellaneous First Appeal is filed under Section 30(1) of Workmen’s Compensation act, against the judgment dated 22.07.2010 passed in WCA/NFC/CR-216/2002 (OLD No.395/01) on the file of the Labour Officer and Commissioner for workmen compensation, Sub Division-2, Mandya, awarding a compensation of Rs.57,183/- with interest.
This Miscellaneous First Appeal coming on for Orders this day, the Court delivered the following:
Judgment Heard the learned counsel for the appellant-insurer and perused the impugned judgment and award and the appeal papers. The respondents though served have remained absent.
2. The appeal is taken up for final disposal with the consent of the learned counsel for the appellant/insurer.
3. The learned counsel for the appellant submits that the substantial question of law canvassed by the insurer-appellant in this appeal is;
“Whether the Employees Compensation Commissioner, Sub-Division-2, Mandya was justified in assuming jurisdiction in the proceedings in No.WCA/NFC/CR-216/2002 in granting compensation to the respondent No.1 under Section 4(1)(c)(ii) of the Employees Compensation Act, 1923 (‘the Act’ for brevity).”
4. The necessary facts are that the respondent No.1 filed a claim petition in WCA/NFC/CR-216/2002 on the file of the Employees Compensation Commissioner, Sub-Division-2, Mandya (for short ‘the Commissioner’) contending that he was an employee with the respondent No.2, and he suffered employmental injuries on 07.03.2001 when he accidentally fell from a height of 3 feet while watering the plants. He suffered fracture in his left limb and because of such injury, he has suffered permanent partial disability. In support of the claim, apart from examining himself as PW.1, the claimant/respondent No.1 examined a Doctor as PW.2. The Doctor has deposed that the respondent No.1 had suffered fracture of the left lower limb and the respondent No.1 was administered with conservative treatment after being put on POP cylinder cast. The Doctor has further deposed that the respondent No.1 has permanent partial disablement of 20%. It is based on this evidence, the Commissioner has granted compensation taking the income of the deceased at Rs.2,250/- per month. The learned counsel for the appellant submits that the evidence is that the claimant- respondent, who suffered fracture of the left lower limb, was only administered conservative treatment after being put on plaster of paris cast. This evidence would in itself indicate that the claimant-respondent had only suffered temporary disability. The assessment of total partial disablement at 20%, in the aforesaid circumstance, is wholly unscientific and improbable. The evidence on record establish that the claimant-respondent No.1 had only suffered temporary disability, and once it is established that the claimant had only suffered temporary disability, the Commissioner could not have exercised jurisdiction under Section 4(1)(c)(ii) of the Act. The jurisdiction to the Commissioner would be under Section 4(d) of the Act.
5. Though the learned counsel for the insurer submits that the respondent No.1 suffered only temporary disablement, the insurer has not been able to place any evidence on record that would cast doubt on the assessment of the partial permanent disability as assessed by the Doctor. In the facts and circumstances of the present case, because the doctor has stated that the claimant-respondent No.2 is treated conservatively, it can be just and reasonable to conclude that the claimant- respondent No.1 suffered only temporary partial disablement. Significantly, the fact that the respondent No.1 was an employee with the respondent No.2, and he suffered fracture injuries in the course of the employment is not disputed. In the light of the evidence on record and the appreciation thereof by the Commissioner, this Court is of the considered view that there is no ground for interference by this Court on the ground that the Commissioner should have granted compensation to the injured/claimant only under the provisions of Section 4(1)(d) of the Act. As such, the proposed substantial question of law does not arise for consideration and accordingly, the appeal is dismissed.
Sd/- Judge RB