MFA 1:599/2005
C:/w MFA 3137/2006
IN THE HIGH COURT 0%’ KARNATAKA_….__ ‘
CIRCUIT BENCH AT DHARWAB k
DATED THiS THE 29TH EAY QR qANuAr<*Y- ;i::Qo'9{ 4- _ _: "
BEFORE .__
THE HC}N"BLE MR;JL:_S?1C'§-3,B.s,PArriL; 1.
m.1r.A.no.n59§g 3 <2:
m.F._4¢u’¢.32:7i3§oo5§’mc;
In M.F.A.No. 1 1i59§’;v:2_.e0s§’%’ ”
BETWEEN: ' ms. % A RepmscV:ntcd'br3fi.ts ' Adminisna3ive.Ofii¢a:r;A Sri Baiju-K.S., -- < S/0 Sukumaran K;-P;,". . Aged 30 yeafs; V' V ' Hulckiéfi £)istr;ct,.. _ ' '~ rgaluk' " ..... .. v §3e1gau1n._ _ ..APPELLAN'I' A M.Kha1mur, Adv.) ' % V AND; 'Mr. Iémndra = .S[;'; Mallagxpa Jamani, Aged 30 years, Ullagaddi-Khanapur Taiuk, Hukkeri Distxict, fielgaum.
2. NW; indiaA$Sura11cc Co. Ltd.,
Represtmtad by its
Divisional Manager,
MFA 11599,/2005
cjw MFA 33772005
Club Road,
Belgaum. ..RESPON9EN’}’S
(By Sri Basavaraj Kaxeddy, Adv. for R«~ 1;
Sri Sfirishaila, Adv. for R-2)
In M.F.A.No.37′?f20(}6
BETWEEN:
New imlia Assurance Co. Ltd., ‘
iiiivisional Dfiice, Ciub Roaé, ” ‘
Belgaum,
Represented by
Regional Ofice,
Unity Building Annexe,
P.Kalinga. Rao Road,
Bangalore – 560 027, H = *
By its Manager. ‘ ; . ” QAPPELLANT
{By Sn: ._ ~ 5
AND: _ _
” ;. re§$;anEd.g~av.%Ma12e§ppa—-J’amam,
V ~-«DVixzis.is;;:;~~E,
Belgamm, awamiing compensatiora of Rs.2,.'{(“i:,41_4ir?
disrecfing the appellant herein to pay _.t1:;c*V..vii:ter;c_st “atsf
Rs.3’?,436[ — out of the coz11pensatio11~amQun_t avV\7 a1fir::<iiV."
MFA 337/ 2095 is mad under. Sti'.-':ێti*C$I'.1'rV';""}{)'('.1):'.(l']'?VViv:(:E;fiLCt
against the judgment and awexfi dated '2s.1o,2.'99s' pas3ea% in,
KPK/SR-8:29€}5 on the of the Ianbom: "«(_)'ff§Cf?3§ amif
Commissioner for Workmezfs 'C9 1i3pcns3V.ijo_fi, .I'£§ubv;Division~§,
Bclgaum, awaxding campcnsgtiaig 'Qf R$."2,?1,451¢%/ « with
interest. . " ' H 'A
These: appeals are f()I: €:1{i.i1:n§iS;f3i0fl, this day 'she
Cmxrt delivered 11::-.s_*. fo}1oW~i–:;g.: V ' . '–
01. “by the employerdvlj S.P’t1I1j
Lloyd claimant Sri Ravinéra and the
New India fi$3i1i’an§:’$
‘~ .C0mAA1’iii$–:3i91}€r for Wor1m€:n’s Compensation,
~-awarded compensation in a sum of
the permanent disabflity suffered in an
accié’em{” gag: occurred on 18.05.2004. The injured claimant
Vv VA “. ,¢,v’AA1tAa Wsgozfasw aged abzmt 30 years was engaged by the appeliant,
– a;cp€>zifiing to him as a censtruction worker ((Goundi work). He
” .’i#é.s founfi ‘£9 baa earning Rs.3,’?’50/– per month. He sufihreé
fracture in his lei’: leg when the stone carried by a. vahicitz cm.
MFA M599} 2005
C/W MFA 33′?’/2006
the Pu11e-Bangaicrem road Wham the work was b<:.1l.f1_li3'_»ltll:i_:):::.'aljq;::vV'u*t.11
on his leg. He was admitted to K.L.E. Hospital 'A V'
03. The claimant moved the
Compensation claiming compehaa-atio;:1V.l’ a’}’lie ;
himself am} the doctor. T132: iujuzies
suffered inflicted 25% llllléwever, the
Commisgioner upfin appVxf::({:’1’lat;ili§:1_ilb on record,
hath Oral and ” the ciaimaxzt had
sufibxrcd extent of 50%. The
income és.3,’?50/ ~–. Having regard
to his apglying the I’Cl€’V8Lt’1t factor,
c0mpe3;t_satic§i:ui1i a VsV=1ni’vof”Rlls.2,33,978/– along with interest at
* §éim—-~cfiect from the date of expiry of 39 days
fififii accident is awardcgi. Thus, a total sum of
:z;:3.aiI1 cantemion of the leammd Counsel for the
VA j2§p}»’fill:§éix:t»emp1oycr is that there was no relationship of
.l gxgiployer and employee and the Commissirmer committed an
error in recaxdirxg a finding in {hat regard. ii is next ccmtended
by him that the quantum of compensation awarded in a sum
of Rs.2,33,9?’8/- by taking 50% less of earning capacity is
%/.
MFA M599/’E005
C/W MFA 33?/2005
illegal. It is his further contention that the amceum: taken as
wages in a sum of Rs.3,?50/- per month is
from the evidence on record.
05. Cennected appeal hearing M.§5′;A;?£–o,3L?=_f?’/ u b
the insurance company. Apart
finding neconded by the ‘V V’ T’ the-‘
reiationship of employer and emylcyeeis ufisustaiizabie, the
insurance company has Commissioner was
in ermr in not fasimzing .fhefi’i’i1:su1*ance ccmpany
as the ::}j;jef}t¢.’.'”1’13e’.c:i»i5i11y to engineers both semir
skilled ,e6.xei&ed1y the claimant was engaged
as 9. cefisfluetioix werker {<'3bs.1ndi).
V' I3;ave"e–h eaxd'V fhe"1ea1'I:ed Counsel for the parties.
€17, questions that fall for consideration in
_ these" apgjealfiare,
AA (i}"" .. whether the findings recarded regarding the
relationship between Pun} Llyod Ltd, and
the efaimam' as employer and empfaryee is
iiiegcu' and unsupparfable fiom the emfience
on reward?
MFA 1§5§*9/T2005
C/W MFA 337’/2006
6
(ii) “wfeeiher the order passed by the
Commfssfoner fastening the liability on thef
insurance company w sustainable?
(iii) whether the 1033 0fear71§ng capacity fa§I};éfl”»é?,i –1-
50% is illegal?
()8. In so far as the miafionskip :0f . fizfizpiojréré’
amployee is concerned, {he Comazissiénéi upc»:1″c¢n4side1fa§;on”L.
of the evidancc on record has of the
order that the evidenc;;.”‘~z>f he has
disciosed the namgs of ths fact that it
was ‘i3 §11*$sfiu1*a.m”%cngaged by the employer
who mm’ in Belgaum for treatxnent having
not been étizallengizd Vthé:€§I.’L’was no reason to disbeiieve the
_ versicxfii u<)f~*:he The Commissionar has also held that
'«d:a;e7fags produced to ShOW that such an étmployee
was” £_s3tx the clate of accident. It is tso be noticed
V V’ _ her6″.*i:hat._if the claimant was not engaged as an tizmployec
” N ” the afJ’}:1;€:1}ant~Company, it coulci have certainfiy astabiisheci
‘saine by pmducing the wage register and tha muster mil.
Thé appeI1ant–Compaay being a construction company
” V engaging severa} workers, it caught to have maintained, in the
normal course of its businegs, the details of employfies who
%_.
_ A_Q13ine_€ii~t1§.r;1;t the C
MFA H599/200$
C/W MFA 337/2806
were engaged by it. Failure to produce the same p1’C}Vi£i6S room
for an adverse inference against the empioyer. The
Commissioner was right and justified in };1o1<ii11g\:1;e
version of the ciaimant regarding the 1ie1ationsh2'§}:"0f
and employee desexves to be be1ieved;.»AwFo'r x
has to be helci that the finding I°eeof:1ec1'_'_by'V
holding that the claimant Wasijefaztglingi L'
for his work as a cons11uctio11___j§ércn;'ker «dCS€If{7CS to be
accepted. The CommisSio.i1er'–wa:S 'v2fI'l'(3t: in recording
such a finding in 'me ab$€fiCC::OfV i)I'()d1iC€d by the
employeritoivtheeV5<;o11fifei1§f' of wage register or other
such 2
09. the. of disability, the doctor has
* wet’ had sufiemd 25% disabiiizy in the 1.211
Valegi oiniaccouiiixofthe fiacmre, whereas the Commissioner has
aecesised of earning capacity at 50%. The approach
Ua;:1opte«:i thyhv ‘the Commissioner in this regaiti, as rightly
AV ” jengieadea by the learned Counsel for the appeliants in both
M Cases is not based on any acceptable evidence.
“‘}f’}:ierefoI’e, the matter requires I’6~COIlSi(iCI’afiOI1 by the
Commissioner on this aspect. But the fact remains that the
1
MFA 11599/12005
C/W MFA 3377/2096
9
the matter. He has persuaded himself to fasten the iiab-iiity on
the insurance cempany without examining this ._:in
detail.
13. in a connected matter
Where the same question arose arid T resecct’ (if s
policy where szimiiar expressioxi slat ‘sea .
engineers was used, this Court *t11e ortier passes
by the Commissioner V ‘ An=,m::§12vde£¥.ii matter for fresh
consideration. In that vvieaxhz iafi “even this finding
which is zecofiied fiflgi’-aciimmi. V. Vreéguires to he set aside
and __ to-i I¥2*C0flSid6I’ the matter after
pmvidhighfresh §p}wei~ii:n.ii3<.ti5"sn the parties.
V. &_ 12. Kin: as"'the___I}=.-zyment of interest is concerned, as per
~ judgment the Apex Court in the case of National
Limited Vs. atuaasir Ahmad 65 Another
V L rei»}<ii*tedv'–:V:i:§1';§;tR 2007 sc 1203, interest is payable in case of
injuries from the date of award. The question
'Whether it is the liability of the emyioyer to pay the interest or
insurance company Will be liable to reimburse the same is
V to he detexmined by the Commissioner after providing fair
eppominity to both the parties. No Opinion is expressed an
by
MFA 12599/2005
C/W MFA 33'?/2006
10
this aspect in these appeals, So flar as the compensatipn new
orciemd is be paid by this _§udgment, the claima,t:t.”:~.V§ftfl._vbe
entitled to receive interest at 129/: from the tlateitét’ ¢rd_;ér_
passed by the Commissicne: via, batfact’ * .
iii} the: dtposit is made.
13. In the result and for thtsfifozegohihng, V
a11(}W€:{i in part. The matter is -fiat iiiéfiix-..cv;n-isideration
to the Commissicner. iéx to withdraw a
sum of R$.1,1?,{){}Cg[ « fmtti’ deposited before
this deposit shall be invested
in fixeé andt the 011181″ of the Commissioner.
14. ” 4_§’:}”l1e. Comfiiifisibnetf is directed to dispose of the claim as
V§éx;’r¢t:1itit$’ttsE3fA’a.s possible, at any rate within a period of fovur
A tlate of receipt f a copy of thia judgment.
Sd/-
Tmlge
.’ K351′