IN THE HIGH COURT OF KARNATAKA AT B»ANGAl,§J_i§.*V;EV":' %.%
DATED THIS THE 3"' DAY or AUGUST, zoéfi K
PRESENT)
me Honme MR.Jus11cgs.R.Aagmsuangm - = "
A N 0 if V
THE H()N'BLE MR. JUSTEE, A.N;%'%vE:4%;i§50PALAL GOWDA
MISCELLANEOUS FIRST Avéssijhso.11i24s;i12oo5(wc)
BETWEEN:
Aged abou.t%_31"y._e'&r£:;;.. _ , '
C/0 Krishna, _ E ' _
No.309, Harm se'e::iv,._'- _ %
I-iinkai, Mysore.
Sri. K. Raju, V
Appeflant
_. _(By Nata raju A:-}.éociv:2|tes, Advs.,)
1;" ~.S'fi, i(a§§ g#ss¥fari:y, Major,
Sfo. Ra_B§'3_§'3h, D.NO.3592/2,
6"" Creissy 'Tiiak Naoar,
Mysctfe :.DIstߢ.
. New India Assurance Co., Ltd.,
V 'A (By Sr!.Vishnu. D. Bhat, Adv., for R1,
No'.73, 1" Fioor, Madhvesh Compiex,
Elfiazarbad Road,
" Mysore-570 O10.
Rmondents
Sri. A.K. Bhat, Adv., for R2)
This Misceiianeous First Appeal is flied under Section
30(1) of The Workman Compensation Act against thevordetr-..
dated 30.9.2006 passed in WCA No.129/'Z005 on theéflie' of * V.
the Labour Officer and Commissioner for _.'N0fi(:Ti'En ' _
Compensation, Mysore District, Mysore, partiy aiiomnjgthei'
claim petition for compensation and seeking.én'tian'ce'ment
of compensation.
This Appeal coming on for adniiiseiion thio.'£'i-iv,
VENUGOVALA GOWDA, 1., deiiyered the foiio9yi'n;g_:....VV
Appeiiant is the petiti-oneirn yv¢e:;h]cR-12o}2oo5 NF
on the fiie of the Lander ,,.¢orkmen's
compensshtioiiti ('(_.--'ornmissioner' for short),
Mysore Di¥.'st;jk':t,% '_Tne'i:*'esoondents herein were the
respoiidents iii theesaiottihcaée. The said petition was filed
tn'ée;i:3eiiant contending that, wniie he was working as
driyv7e'réi.5i:,2oo5 in Maxi Cab bearing Registration
and during the course of employment
i-eitinm No.1, he met with an accident and
it grievous injuries to his right leg, left leg, nose
.« aii over the body. He took treatment as an in-patient
Cat K.R.hospEtai, Mysore, for the injuries suitiinmi in the
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earning capacity and consequentiy new that he is entitled
to a compensation of Rs.49,915/- togaher with ihtere;-fiat.'
12% p.a. from the date of accident from
respondent Insurance Cornnany. Dissatisfied.'v_'4_witiiA.i.:'tne it
quantum of award and to grant the icom’neer_;s’a.ti¢’n’
in the ciaim petition, this appeaithaas bee_ni;3refer.ree’..,’: 1
3. We have heard i;earneqi.entinsei.L’for’t’he-,ap!;;eiIant
and the respondents and _
4. Learneti;».’ceti:;nse’i*-iifet thevaaaavpeiiant by taking us
through the 2 and the documents,
specifically I-§<ts,%?5 ta contended that the Comrnissiener
In assessing the loss of earning capacity at
the ioss of earning capacity should be
asseased atIe7'a§st't1'at 45% and the impugned award is iiabie
:9 be madam.
” ” *5: Per contra, learned counsel for the 2″” respondent
..i1.n§u;ance Company contended that, in timracts and
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circumstances of the case the award passed
Commissioner is justified.
6. Considering the rival submiaeioijsr
the substantiai questien requirea coneidere§i”ie._:.t_._VV
Whether thevCu.mm_issioiner isjiustified in
assessing the less or ~ea.rr:in§’ r;aba’city’–.. at 13%
despite documentary evidence “e..j’~?5_’_’..to P9
and the evidfiflfie ofiawtz’? ‘ V ”
7. The5’ja,i;bei’lVaint. as PW.1. 1*’
respondehtWemtievdyeifhe’s.:”edrri’itted that the aforesaid
vehicie was i’nvdlved’v§§i~.the_:;accEdent and that the appeiiant
was the_drive’r atrtrte met the accident occurred. The
itVfirsdinet$’bfa_the«Comrrii§si’dher with regard to Issue Nos.1, 2,
‘S final, since there is no cross appeal by
t the”re:epondeeVts3. Hence, we have to examine in this
tt”‘~.-«.___appeai, “the finding rendered with regard to Issue No.4
8. Appeiiant during the COUTSE Of I135 examination 35
V i’ :PW.1 has stated about the injuries sustained i_ay'{iim in the
accident, the treatment taken and the disabiiity ‘é
he suffers. As per wound certificate, the ro:Iow::§g;.,,§n3t;r§e§ ” ‘ L
were found by PW2.
a. Rt. Leg, Rt. Knee swollen;
b. Deformity of the Rtieg present; 3
c. Abnormai mobiIet§4′;~…¢ryptd’?$
d. Punctured wound aspect,
bleeding’ I
e. V
f. toe.
Referring to “‘E,x.P9,V”i:heAV.X»rSye, PW2 has stated that, they
. ‘show ct§rrimunited’AE.riter eondylar fracture of right tibia with
of great toe. He has also stated that, on
e)t’arri’i’nati6r§,’v_v».or§.;,”i3.3.2006, he has found the foilowing
-injuries:
V ” =a_. He had tenderness and sweiiinc of Rt. Knee;
V Knee movements are restricted to 70 degree
c. Movements are painfui;
d. Various deformity of the Rt. Leg by 2 Cms.
K
,4′.
inpatient, Ex.P8, Pass book of the said hospital and Ex.i?9,
the X~–rays and the evidence of PW.2, the
disability at 10% by the Commissioner, _
erroneous. There is misreading of the..,eyider3<§e'oi5'_iff*iiii.?t by u
the Commissioner, leading to an i.iieg;aiity"a§:a
substantial question has arisen 'for:
Considering the nature of injurieie-:_as_V_vnotie.-.3g;[;,yvvVf%PW.2,
which are not in aispute,is_ i*.easovn'ebie.:'bto., ho-id that the
percentage of total q.iAsei1ii:itv* it 15% and
consequently 'rthiereiitiiie ieesf'-of e_e'rn'ing capacity of 15%.
Hence, the inwardVV'req«Qiresi'i*te'V.be modified. The age and
income of the"eppeiie~nt'hes~–been correctly assessed by the
t-ie'riee«," the appellant is entitled to be
.Vey_iiare.e:1"vthe;"'ieornpensation of Rs.74,872.80, which is
rouinawteti of'toe?'i_i2§i.74,875/~ i.e., (Rs.4ooox6ox2o7.9sx1s 979:
'}?4;i',872.&i3R)';. To the said extent, the learned Commissioner
i'ia'sA.xj:or:1mitted a material error and iiiegaiity. Hence, the
V' ..__"V'irnni.igned award requires to be modified. L
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