IN THE HIGH COURT or xARNA'rA.KA_....__' v :
cmcurr BENCH AT DHARWAD %
DATES THIS TI-IE st» DAY c3F"MAm§H _ '
BEFORE . .
T!-IE Horrsm MR. Jfisifics A;s.V_1n.o1?1§L;vié;{§"
M.F.A am. &%21179'}1:zjc~os-.1wcj " ' L
BETWEEN 2 " ' V' "
D§V§SIONALMAN&C:'1§R
GREENTALINSUR.§xi'¢iEiEi'CO1..TI}, .,
KIRLOSKAR EQOM, E;i_«:Lcw}'M REP BY A
ITS SR EZIIVESIC)NA;;'----MP;NAGE:R"*-._ ' _
DIVISIONAL OF'FIC-E;}§2NK&¥--COM.PL'1E)X,
KESHWAPUR; 1'{U'f='3LI.'*i::,; "
APPELLANT
(By Sri: LA$<MvAN_13'M452§i§0§D;§;R,'*ADv.)
,_3'£;.R: Eggu @ ?A«:1c:_EsHAvAxANNA ANANDACHE
. V A'c;~EI:a" ;»'e.f%3GI,}'F :20 YEARS
* '€}CC.VCLEA_NER Rm NEAR II\IE)US"E'RIAL AREA
.'_£«10Twge:;A; TQ VVBELGAUM
2. ' saw BAVA}-{ANNA ._1 ANANDACHE
AGE MAJGR, occ BUSINESS,
R/£3 B.e;'..LBH1'M& GALLI HONAGA
' .. km BELGAUM, Fx'E$PONBENTS
T.{'Es;;'s:.~2_.3¢ M SHEELAVANTH, Am'. were R1)
THIS APPEAL IS FELEQ U/S 30(1) OF' WC AC'? AGAINST THE
'<. vJU{§GMEN'I'/ORDER DATED 28.8.2008 PASSED EN CASE NO.
VA ~ _' Q KAAPAKAA/S.R--£73/200?' ON THE FELE OF' THE LABOUR OFFICER
ANE} COMMISSIONER F90? WORKMEIKPS COMPENSATEON, SUB»
DIVISIQN-»1, BELGAUM.
THIS APPEAL CQMENG ON2FOI5~? ADNHSSION TEES DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/Insuxance Company is
assailing the judgment and award dated 28.08.2C*f).:8
WCA.SR.1?3/2007. By the said awa1:d;’i*–.he V’
awarded the tota} compensation of , _ ” 1 A
2. Heard the learned _f0r’ihev…pai§1ties and
perused ‘iihe __ — ‘
‘V e ‘}’he ‘ieejfieé ‘~Cl0:u11se1 for the apiaeilantdzlsurance
Company eontefici that the Commissioner was not
the loss ef earning capacity at 8(}”/:3. it is
c0fit€fléeé_.~theit’ the doctor had. seated the clisabiiity only wifi
tei limisa. when the disability and the percentage of
;}fr£:arnjng capacity has not beefl assessed by the dector,
.:£he__5Commissiener eught not to have considered the same at
»._ :.V3CP/6. Thezefoze, the quanfum of compensation awaxfied calls
for }:’£”T:{i’£1C1ZiOfl.
J
4. The iearned Counsel for the :espon{i’et1ts:Alto1%ée§e§f
sought to justify the award. The learfted”Cot1i1&se1V.tjo;ti:tt.e
evidence of the doctor and raise vto ._
that the Commissioner has tile evidet1ee”.bjf~–;e§tt1’eietingt”
the same during the course of -Dtfdefv-.whicii’ woul{i indicate
that the doctor has spoketi’ .’V”‘f_I;e:§*efQre, noticing the
nature of éisabflity statedfl” ‘Eu1vocatio11 of the
ciaimant, t_he…};1a–s iégppzoftflately granted the
eompens2fi:iofi”ai§;d the Saii1eVV’does”_i:6tVca11 for interference.
‘:i._ ‘H3… ivflat has been contended, though in
‘tlte the’ issue raised cannot be considered as
;.:oe1irf:_ question of law, but the nature of
eotzgeicieratiolitejefetthe evidence by the Commissioner would have
‘ta be 4u1’.i*;}tii€:€(.iV 4′ as to Whether the same would admit of any
in that context, whether any modification of the
requireé. in this szegaxd, a perusal of the award passed
” the Commissioner would itzéicate that the aspect with
u & regard to the disability and the loss of earning capacity has
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been considered by the Commissioner while _
consideration on Issue No.5, which had been * V.
In this regard, the Commissioner has :.netie’e–_d evi:1er3,r:eA
tendered by the doctor in deizajl
reproduced verbafim.
6. A perusal of by the doctor
wouid indicate ;ha::;._t;i;e cggcggeihag’::’§tate§1:fixéith regard to the
xxature of the claimant, the treatment
mndemd:mem£§’;ae§: that would be faceé. In
this rega1 fl, faced, the doctor has stated
ihat the c1airn’:_:eit.weul(i..V1fief’~’»}Vbe abie to stand for a longtime,
~ walk hzl.u;£i.__hevwas aiso not be abie to squat anci sit
“1egge_d’.a :’«.JF””:}.I_’fl1tEI’, the docter has opined that he wouid
moi: ‘:,§§’ee:i§:1:%;s%geight and do xaborious job. The doctor has
also peiate€1&Vei1rV: to the X-ray and has also stated with regard to
H u diegbflify amounting to 40°/6 to the Iefi: upper iimb and 45%
‘.’_t;:) fixebleft lower limb. A3 against the said evidence tendereé by
‘eioetor, there is nothing much to discredit the same in the
{:r0ss–examix1a’a5o1:1. Therefore, this aspect of the matter would
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‘I
5
have to be noticed keeping in View the avocation ‘at’ the
claimant, who was Working as a Cleaner. If this is
what 3330 requires to be noticed. is that the
stated that he would be disables} to v§or1;~.;, V
Therefore, noticing the nature of the ._
of the claimant, the loss of eartlilm eapacfty__as.g$’seé~eeei”bjLr the
Commissioner is slightly en, the Side and aesueh, in my
view, the same requ1re’ s regard, it would
be appropriate ‘£11:-;t’i1;_1 sufiemé and
the avocz§tter1″b’ft.f’§31e _hevVWvttou}d be able to do some
other lighterjwork.’ .
7. Hezzee,» i;ee_pi11g ‘ail other earametezs with regard to
figs Wegesv §he”1’-eleyant factor intact, if the compensation is
‘VV’ would be entitied to a sum of
a’sA’;=.r.§igai:13st the Sam of Rs.3,04,255/ –. Hence, the
V «awaxflkis to the said extent and it is heki that the
u u ” “‘¥VO11ld be eutitied to the compensation of
.%;§zs’;::,t4’z;2ee/- with interest as indicated in the awaszfi by the
~ _ V Cbmmissicner.
J.
Rcigistxy is dgirccteci to caicuiatse the the: _
reduced. compensation amount to1 thé ‘<.;;a'ji«1:n2i1:1t..__'V
amount shall be refunded ' 7appe11'£{:2Af';A?I:1's%.v1:fT%1A..I1»:'Vfi'–.
Company.
In terms of the above; of with
In) order as to costs,