1 IN THE HIGH COURT OF' KARNATAKA AT BANGALORE DATED THIS THE 12"' DAY OF AUGUST. 2009 BEFORE THE HONBLE MR. JUSTICE B.SREENIVAS:E ~ M.§+'.A. N0. 2008 ofggos [W7CI""':._':p. I BETWEEN: Divisional Manager, New India Assurance Co Ltd., C.G. Hospital Road. Davangere, ' 2, Now represented by its," 'A Regional Manager, V' - The New India A:s'su_ra:f_1ce C0 Ltd§;--,_ . Regional Officie, V . 2~B, Unity ' Annexe, P. Kaninsra RaoRo"ac1;' C3. Banga10re*=5€§O O27. APPELLANT [By Pradeep.._.Adv. appearing for Sri. AN. Krishna I "vSwa;Iiy for A.ppe11ant';' } 1.
Rualresh,
I /”0, Smt. Gangamma,
I A New aged abeut 21 years,
I A ‘I*u_pR/0. Lenin Nagara.
” «. _.i\Eea.r Mosque, Nittuvalli.
Davangere.
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2. D8. Nagaraj,
S/o. Shivanna D.S.,
Owner of Lorry No. KA~i6/A2598,
R/o Bhararnasagara,
Chitradurga District.
RES?-c5NoErfi:’s.:’ ‘Vi .
[By Sri. Mahesh R. Uppin for R. 1,__R.2.4serVe’d}”:.’_’:».
This MFA is filed U/Sd3’O{.1] Qfvrc. AcTta.agam the’
Judgement dated 18. 12.200′? °passed~. _ in — CR.No.
268/2006 on the file of_.._..t_he_ ‘-~Labot11′–.._Officer and
Commissioner for Woajkrneniis _Compe’nsati0n, Davangere,
awarding a compensation of Rs’;»2v,4.’3,t§”_.3V’7′;’:§ with interest @
12% RA. ” C V ‘
This IWFP.V:_eorI:iI1g”‘o1:.___for orders regarding non-
eomp1iance”eoi’. office _”o};3jeetior1″s, this day, the Court,
delivered the foiiowirigr’ ., ‘
it ‘figUnGMENT
the Insurance Co. challenging the
eorripensation awarded by the Commissioner
for Compensation, Davangere Dist,
‘.VDaVangere, Vhereinafter referred to as the Commissioner for
C_’sho1’t..A
We
2. Parties are referred to as they are referred to in
the claim petition before the Commissioner for Work.=nen’s
Compensation.
3. Brief facts of the case
On zowswos while the c1éimét[nti’ vs}as i’
cleaner of the lorry bearing registratio:1__ NoV,gfvi(:A§1’8′;’A?2598′ if
under its owner, the lorry acciderjit and he
sustained injuries. Ashtheret-.i:s ::no:’d.is._nu-te regarding the
injuries sustained_ thin the accident
occurrehdflinir out of employment, as
cleaneryving the registration No. KA– 16/A-2598
and the iiahtiiity offthe Insurance Co., the only substantial
. .”‘quest.ioh*of’i’law thatmaérises for consideration in this appeal
whe’thezj thfe._.Commissioner is justified in assessing the
it _ of cfairnant at Rs.3,000/– per month and
Tassessiiigh the loss of earning capacity at 60%.
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4. I have heard the learned Counsel appearing for
the parties and perused the judgment and award” of the
Commissioner.
5. Sri. Pradeep, learned Counsel__ga’r)pearingl’
Sri. Krishna Swamy, learned it
insurance Co. submits that _although- thecgclairnantg
sustaining injuries in the accident wasltreated in the Govt.
Hospital, he examined.4_._only–‘_;thieA Vllpirijvate doctor, and even
according to thesaid prixrate doctorfhe’ sustained 60%
disability to the and the Ciornniissioner is not justified
in taking -loss ‘”::ap’acity as 60% and awarding
compensation oft/~– and therefore, he prays for
, A al1ovw5inlgi’this ai)peal__and reducing the compensation.
contra, Sri. Mahesh R.Uppin, the learned
Counsel’ for the claimant submits that the
drawing salary of Rs.4,0{}0/~ per month
V’ ‘bata’ of Rs.50/– per day while working as
cleaner in the lorry and the salary taken by the
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Commissioner at Rs.3,000/– is on the lower side. He
submits, the claimant was initially treated in Govt.
Hospital, i.e. KJMS, Hubli and thereafter he has””‘tgaken
treatment in the CG. private hospital and
in the private hospital was examined rightiyggl
assessed the disability to :at__ if
Commissioner is justified in riassessing the did-ssyoil earning”,
capacity at 60% and awarding’vcornperisation. further
submits that Commiss_io–ner–fVl is in awarding
interest from thecdate of ginsteald’ from the date of
claim petitionfifr _ “ff.
The sustained compound fracture
of left .f_erriur}* Ifileiw.asA”working as a cleaner in a lorry. But
“his “eor1’t,ention was drawing Rs/1,000/- excluding
bata day is not established by examining
the the lorry or by producing documentary
3u””‘-..Vevidence…’Ito that effect. Considering that he was aged
19 years at the time of accident, nature of job as
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cleaner in the lorry and year of accident is of 2006, the
salary assessed by the Commissioner at Rs.3,000/- is
almost equivalent to one prescribed under the
Wages Act. However, in this appeal filed by
Co. I cannot disturb the said finding of
which is based on facts. C0rigsideririg4′–,,thle’ ..,flie C
claimant, nature of job, nature ofAinjuries”‘st1.stainledllby”.
him and the disability statedrby the the loss of
earning capacity asses–s_e}j_by tlj_ieiCiomniissioner at 60% is
on the higher side. V
–.At.ll”lV’i’r1i:s’i the learned Counsel
appearing'”<.__for_ submit that instead of
rematidirig the"'—imatter to the Commissioner on this
this Court can assess the percentage of
loss of capacity of the claimant on the basis of the
'.Vmateria}l*,:_ ayailable on record and award just and
A freiasonable compensation, considering the age of the
claimant, the nature of injuries sustained by him and the
%
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nature of job he was doing prior to the accident and the
loss of earning capacity of the claimant can be fixed at
40%. The question of law is answered accordingly.
9. With regard to interest, the matter iscovered
by the decision of the Supreme Court of
ORIENTAL INSURANCE co. LTD. VS. 1 A
ANOTHER reported in 2009 AiR1 scw’e7’1.g7,’aA.a¢¢orciingto ‘
which interest shall be payabie at 75% p.a.;”frcm_ the da.t;{:”e.
of claim petition till the date award t_’1′:2″/Vi} p.a. from
the date of award till tliietigrjat-;e oi’ ;iaynie’iit_.
tO.._ ” “appeal is allowed. The
judgment ‘passed by the Commissioner is
._VIno<igiiied_gAV'ari_d the«c1a.irnant is entitled for a compensation
with 71/2% p.a. interest from the date of
til} the date of award and 12% p.a. from the
"date of award till the date of deposit.
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