1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 18TH DAY OF FEBRUARY 20Q_9___ BEFORE A THE HONBLE MRJUSTICE C R ' A MISCELLANEOUS FIRST APPEAL I'-lO'.4893 A BETVVEEN: New India Assurance Company' Represented by the Divisional Manager 431 Floor, Tower Block , * J.C.Road I v ' ' Bangalore -- 560 027 Representing the Inidiag H A Assurance' A Branch Office, V1082/!?%"V."».."' I Bindu Cofnpiiexi Du1n"Lighf=Ci1fc1e Kolar. » ,. A APPELLANT Sri: R.J Adv) 1. ~. "-I,.Naga'ppa; '@ Nagaraj A /0 latefolice Venkatappa Sangali'Grama Muiabagilu Taluk " 'Kplar District. RVA.Nagaraj Setty, Major R S / 0 Varadaiah Setty 9/ Mallanayakana Halli grama 81 Post Mulabagilu Taluk Kolar District. RESPONDENTS.
{By Sri: N.Gopa1akrishna, Adv for R1,
Sri: Vasanthappa, Adv for R2)
This MFA is filed under S€§C’fi0I”1*.3O.(1)_:«0Afl’ Vif{c;i’.vA”c: 0
against the Judgment and Order d.ated–g1.7.02.2006″
in WCA:NFC:31/2003 on the file of ‘the*.Labou;f AOffi~cer ‘and,
Commissioner for Workm(%n’s_ Compens*a_tio§11,.._ VKolar,._*
awarding compensation of “Rs:i1,99,6=23/-~_’.= interest of
Rs.71,332/– and directing theg_appe11ant herein deposit
the same. V p_
This MFA coming on’ this day, the
Court made the following’?
This Miscelia.neo1is~i.l_l7irst Appeal is filed by the New
India Assulrancev under Section 30(1) of
the l’C.r,.)lI:IvV1pepr:1sation Act against the Judgment
‘Order ‘ldated __17.02.2006 passed in WCA:NFC:3 1 / 2003
on Labour Officer and Commissioner for
Workrnerfscg Compensation, Kolar, awarding compensation
~RVs’l.l1.,99″,l623/–, interest of Rs.71,332/– and directing the
____”appe11ant herein to deposit the same.
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2. Though this matter is listed for admission, with
the consent of learned Counsel for the appellant.» and
learned Counsel for respondent No. 1, it is takennp
disposal and heard on merits. Learned_p””C:ou.n’se1’b C’
respondent No.2 is absent.
appellant submits that the Vin_sure1*–.A/jC§;w- liabjel d’13aj}j’.t11e”V.p
compensation amount. ._ _ A_ i
3. Parties will bepreferered to with reference to the
status before the Court of’Com°mis.s_ion;erjfor Workmen’s
Compensiation_Q7;p V ,
4. TheVeontention’~v–._.o’f’ the claimant before the
Commissioner for Workniefls Compensation is as under:
Tfigie Ciairnaiatqvaps a bus conductor working under
“r_espon.den_t’~NoV.’1v in a bus bearing registration No.TN-23-A-
95.55.’*~’That7[jon.1=.”t)9.03.2OO3 at about 1.50 p.m. the bus
stopped ..ata..D.o4mmasandra Village, which is on Mulbagal V-
.A__i{fota’CCRoad. The claimant was on duty as a conductor in
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the said bus. When he was boarding the bus from the front
door, at that time, the driver of the bus Without observing
the passengers and also the claimant boarding
moved the bus. Consequently, the cIaimant__fe1t
sustained injuries. The claimant ;§)vas”dra’wing– of
Rs.4,000/– per month and bata at /– pier.
the accident, his services were terrninated*.arid’:he:’:yvas aged
about 30 years.
5. Respondent any objection
staternen:t”befoi’ethe; “Coui’t- dbeiomnt Respondent No.2 — the
insurance _ objection statement denying
the relationship’, _aged.’=_d income and occupation of the
it gadrnits”‘that it has issued policy covering the
V’v’ehi::g1xe’bear;i:ig registration No.TN–23~A~9555.
z sum and substance of the findings of the
I Cioxnrniissioner for Workmen’s Compensation is as under:
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The Commissioner for Workmen’s Compensation
taking the income of the claimant at Rs.4,000/– andoage as
42 years and adopting relevant factor 178.49
the loss of earning capacity at
compensation of Rs. 1,99,623/– (17:éiéd9″X’:v4’QO{0 ;:_diso/_ iog§}:
46.6/100).
Company has preferred’. this’ challenging the
quantum. of compensation. C
8. The .st1h’stant4ia]:_’questions of law that have been
raised in this _ are
i’…,._….Whether the Commissioner is
_’ in holding that the petitioner had
it 46.6% loss of earning capacity
.~ eyeiid though the Doctor had assessed only
~ V’*;23.3% disability and not loss of earning
H capacity?
if
7. Feeling aggrieved same,-..AtheVV”*~in’surance”
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2. Whether the Commissioner is
right in holding that the petitioner was
earning Rs.4,000/– per month
there being any evidence or supporti–ng..:
evidence?
9. Learned Counsel for the
that even though there is a eV*i.d’ence there’
was a disability to an extent of theleft lower limb
and 23.3% to the whole’ of earning
capacity at 46;~5%g..g33y the Ciornnii-ssioner for Workmen’s
Compensationi no’t§;prope’r-.
10. for the respondent supports
– the }’ud”g”me_nt.v
Dr.K.N.Devaraj, has stated in his
evidence.’ that the examined the claimant on 09.03.2003 at
Jayar1a.gara General Hospital, Bangalore. On examination
that left hip movements were restricted, limb
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length right 88 cm and left 85 cm shortening of 3 cm. X-
ray pelvis both hips A? view showing proximal migration
and lessening of the A.M. prosthesis. He has got’
in climbing the stairs, difficulty in standing
leg. The doctor has opined thavtmthe’
disability to left lower limb at 46.6′?/clfand
whole body. ‘ _ A
12. The schecluie the”-.. Workmen’s
Compensation Act envhisagesg _injuries, commonly
encountered’ “E-ndufs’trial ‘practi’ce*.'”4 Further even for these,
the schedule._ nei.ther«.Vis.,_.’noii_. claims to be, complete and
Comprehensive. the schedule envisages total
Variatomiicgfl loss olflorgans, limbs or part thereof. in the
Wof};menf’s.filompcnsation Act, the basic principle is not the
anatomical. .e:dst’ence of a part but persistence or
“”T.-Ti;’V’adisappeaifance of part of its function. The function as
the Act is not function from the physiological
of View but from the utility point of View. This utility
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occupation and the nature of injuries sustained by the
Claimant. ;
15. In the instant Case, the wound e.e1ftif1eate
discloses the fracture of neck of left femur
inability to walk, traumatic cataractof eye _bali.=i: * .
who examined the claimant is of the opmionnn
and 2 are grievous in natufref-…V The e’1ainiant._:”hVas'” also-V
produced the conductor ;_1icence.–andit–~e1ea1;1y’di.se1oses that
he was working as a conductorf» The has stated in
his evide:1Ce’tha:t cféi3iI’ntant”ca11n’ot”stand for a long time nor
he can sit on’ he has got disability in
climbing the tavi1’s._
‘ ‘=._:Con:sidering the nature of occupation and the
evidence of doctor, in my view, the functional disability
the ciiaiinant can be assessed at 30%. 30% functionai
is equal to 30% loss of earning capacity.
,…”Vé’:iV”‘hei’efore, the claimant is entitled for compensation at
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Rs.1,28,512.80 ps. [2400 X 178.49 X 30/100), which is
rounded off to Rs.1,28,513/–. The compensation amount
shall bear interest at 12% per annum from one month from
the date of adjudication till the date of payment.
17. In View of the above discussion,”-I
following: y
a] This Miscellaneous Firstdfittipeal
b] The corn,pensation._ amo’unt_:’– ‘o’f._. Rs.H1’,’99;6:28/– as
awafdedea ” iif§V4t’i:e: ‘ ‘ » omurnisvsioner for Workmen’s
compensauohnvddigfetdjicetd to Rs.1,28,513/–.
C) The confli’pe:nsation- afnount shall bear interest at 12%
“per3–.”tan”n.nm one month from the date of
the date of payment.
‘ d) A “1_’_,’:1e in excess, if any shall be refunded to the
x voylnsuvranoe Company.
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6) The cxnnpensafion eanount deposfied by the
Insurance (hxnpany’ shafl be cfisbursed U) the
clajnaaxlt. ‘ _’ % _
jUDGE§;j%
*bgn/~