N THE HTGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 15?" DAY OF SEPTEMBER, 2009, BEFORE: THE HON'BLE MR. JUSTICE V.G. SAB_HLA'H'Oi'T_'V:~O._I:if _ M.F.A.NO.9875 OF BETWEEN: National Insurance Company Limited, Baflgakore D.O., Through its Regional Office, No.144, Subharam Complex, -. _4 V I 1V£.G. Road, Bangalore -- 560.001 g _ AA Represented by its Assistant Mafnager_.,~.._ V Srnt. Chella Ashe}: Kumiarx» -- * V [By SRI3,_B.C. ADVOCATE} AND: A A Z 2 Sri. S_haranapp'a,. _ A Aged; 44 years,' .. _ ' _AS/o_,'Venkataraya;' ----- -« * V, V R,/a.1V.[a1aAra_ Village, YaTdagi1*i.oTaEuk,' O' "C3u1barga"D_ist1?i»c't. Respondent
(By Hamsaksheera Associates}
##5##’?
“:This MFA is filed u/S. 30(1) of the Workman
Compensation Act against the judgment dated: 28.05.2007
“‘”passed in WCA/NFC/CR No.26/2005 on the file of the
Labour Officer and Commissioner for Workmen
Compensation, Sub–Division–6, Bangalore, awardirigp a
Compensation of Rs.3,31,506/– with interest at the…rate3of
12% per annum till deposit. 2.
This MFA coming on for hearing, this day; it
delivered the following:
J U D G N_-grjiv ‘C ” C
This appeal by the Insarancep Cornpariy ‘under C’
Section 30 (1) of the werigtnenfe-eeefihpeneaueh ‘ie~iet..{ggx-teved
by the order passed and Workmen’s
Compensation ‘–VI, Bangalore
dated 28th ;~.tay_.t2oo71_v1ih1i;;rcA:_:\I::*c£.ea;_:is}2005, wherein the
applicatic-nu. _A’:li~!ed::*:;;by lrespoiyqdent herein seeking
compe}d’satio’nVduiider’ “Wo1’l:men’s Compensation Act
towards consequent disability sustained by
him..uthe accident that occurred on 15″” July 2003 has
8.ll_t;A)\7tF.E’3€1’VA.i’11,}.f)aI’t and compensation of Rs.3,31,506/– has
interest at 12% per annum, if the amount
V . is deposited within thirty days from the date of passing
A it ‘ – thee order’.
The respondent herein filed claim petition before
“the Workmen’s Compensation Commissioner, seeking
‘K\,§fi_’§,
compensation under the Workmen’s Compensation Act. It is
the contention of the respondent claimant befoyrelithe
Workmen’s Compensation Commissioner that wlii1e««he..__*:Was’
discharging his duties as a ‘chipper’ under the
of respondents 1 and 2, R.M.C. Pipezgpfellion he
sustained severe injuries which .led to” .(_:o’nsequ_entdisability.
He was treated in Hosmat has spent than
Rs.50,000/- towards V VQV’.C».\’t1ale and
treatment and since the disability
occurred in of is entitled to
Compensation Respondent No.3 is
the issued the Workman
Compensfliionl it
_ 3.. Res’povnd.ents”‘.lV«and 2 appeared and contested the
C 0. “–petition;–.”o:Appe11antVilnsurance Company also contested the
l.peotition_{“,_ThVeAia.Workmen’s Compensation Commissioner, by
ortieri dated May 2007 held that, the claimant sustained
“-.inju.ry consequent disability on account of the accident
V’t11.atCoecurred on 15”? July 2003 in the course of employment
0’ arid having regard to the evidence of the Medical Officer and
its;
other material on record held that, the claimant has
sustained 100% disability and loss of earning capacityas he
is unable to work as a ‘chipper’ and after app1yitn’g:”p:’thep
appropriate factor and multiplier, awarded com’pens.atiouni 1 V’
Rs.3,31,506/» with interest at 12%’ »-per .llif4.l_:thev_V
amount is not deposited within thirty fromA”t.Ifl_e
passing the order. Being bythe saidtv-orderipassed ” it
by the Labour Officer and the..VlWorKmen’s”‘Compensation
Commissioner. Sub dated 2831 May
2007, the Insurance this appeal.
4. {have __le_a’rned_* appearing for the
appellant. it appearing for the appellant
submitted’ that the appellant insurance
Company had i_ss’ued the Worlnnan Compensation Policy and
iiablez to reimburse the owners regarding the
._coi_np’ens’a,tion«._ ‘awarded in View of the Workman
Co’inpensati’o§.1’ll:Policy issued, is not disputed. However, the
W,learned_ Aicounsel submitted that, the quantum of
“‘liVt_L0.r1Fip’ensation awarded by the Workmen’s Compensation
Commissioner is highly excessive as even according to the
\;:~wi>
evidence of the Medical Officer from Bowring Hospital, who
has been examined before the Workrnen’s Comper.1sa.ti0..n
Commissioner, the disability of the affected _
to the whole body is 10% and there irfiateriaiiié
whatsoever to take the disability 1C?_0’§’t/pl if
Workmen’s Compensation Commissioner and t1:1e’VVorkm_§§:n’s _ ” ;
Compensation Commissioner has not takeninto “account the
provisions of the Wori;_ri’iyen’sA_ ,Cor;1_p»ensation Act under
Section 4 {1} (C) (:1) and Partfil jtgind the finding
of the that the
claimant and loss of earning
capacity; CCCC if and the sarne is not
based onihe and the material on record
would .show4″‘t11at’fracture” has healed and the respondent
‘C if “‘c1airnant,’was Atreatedifitiiosmat Hospital and expenses of the
reimbursed by the employer. Learned
connsel a}.soi’sufbmitted that according to the evidence of the
“owner, ” workman was given light work after the injury
treatment and discharge from the Hospital.
3.
A.»-“‘>
“v5″1./
5. After careful consideration of the contentions of the
learned counsel for the appellant, the questions of
arise for determination in this appeal are:
I] Whether the quantummof <
awarded by the Workniefts
Commissioner in the
disability as 100%, is "p_e'n.gerse;"~
unsustainable in law ?
H] What order ”
Consideringfthpe .,c’onte_ntic_>.ns of ‘the learned counsel
appearing__Vfor~ 7Va_ppellantt”vta1id_:iscreltinizing the material on _
recordftl ansu}ef.”;ii_e”‘Vpoint-1\l_o;1.’ in the affirmative and point
No. as per. the final ‘or’der;.for the following reasons.
4; Queestion’=l\_los.l’ [I] and [II] are Considered together since
ti1ey\are”‘interconnected and to avoid repetition.
V that the claimant sustained injury arising
0ut”‘andV___in course of employment on 155″ July 2003, is
disptited. The liability of the Insurance Company to
the award passed against the owner is also not
he disputed as the policy covers the compensation payable
7
under the Workn1en’s Compensation Act. The material on
record would show that the claimant injured was treated in
the Hosmat Hospital. However, no doctor from the said
Hospital who gave treatment to the claimant has.l_l’bee.n
examined. However, Dr. H.S. Manjunath who is.«vvorkifig__as._c _
Orthopedic Surgeon in Bovvring Hospital hasbeen: if
and according to the evidence of thel’»saicl”dc’ctor,l there’
union of the fracture and according to there d.isabl;litv ;
of 30% to the affected limb, and is tendernessvjover the
left ankle, one scar over left a:.nlt1e..and~cplanter flexion of
the left ankle isgreduced tdisability of the
whole .it’vi(‘ould–hlevdifficu1t for the claimant
to continue the The facts elicited in the cross
examinationlllof “Officer clearly shows that he has
~’ v ,./;;6VC:1′. Crefe~rred_ to theldocumerits pertaining to the treatment
given’tofthe-‘V%’elaimant at Hosmat Hospital where he was
treated after, he sustained injury during the course of
l’i.employ1o:V1e’i1t and he has clearly admitted that he has not
“‘l:referr’e-d to the Wound Certificate issued by the Hosmat
Hospital and he has only examined the claimant for the
\:?’~a,>’?-
purpose of assessing the disability on the date he has
appeared before him and as per the complaint and the injuiy
which the claimant was complaining. The reason. assigfned..
by the Workmen’s- Compensation Commissioner”forAa.tai§i1ig”‘_”e if
the disability as 100% contrary tom the of-lfthe-.p
Medical Officer, is clearly perverse arbitrary’;
Workmen’s Compensation Comfnissioner__ proc-eed.»s”‘oii”: the ‘ C
basis that the claimant.’ has pAAsteo–*A1:th_.:¥iitis and
having regard to the evidence of has assessed
the disability avs_j1’oo_%. arrivi_ngV-atfthe said finding,
the Workmeri’s’v C’0mrInssioner has not at all
taken into proeisions of Section 4 (1) C) (ii)
which re’quii*es that i;n,:ass:es«si’ng the loss of earning capacity
for the purposese of s’u.h’#’clause (ii), that is non schedule
‘C if athequalifie’d””Medical Practitioner shall have due
_1’egai’d to;ithefpiercentages of loss of earning capacity in
relation tolinjuries specified in the Schedule I and the
V._Workmen:7s Compensation Commissioner has also not taken
“it “into account the injury and loss of earning capacity as tabled
Part«IE of Schedule I of the Work;men’s Compensation Act
R
“X $2../>8
w
pertaining to the partial permanent disability. Therefore, the
said finding of the Workmen’s Compensation Commissioner
that the claimant has suffered 100% disabilityaindl .
earning capacity, is arbitrary and capriciou’s”‘as’jitl”is”not “‘
based upon the material on record andycarinot. be sust:§iinec?r_’
and liable to be set aside. However;’haV’i.ng
fact that the Workmens Compenligalfionpp Cornrnissiorier apart
from stating that he disability of
100% of loss of eamingy..capacih’ly basis of the
evidence of the provisions of
Section 4 (ll as referred to above
nor to the claimant regarding
the treatment Hosmat Hospital wherein the
clairnant wasltreated” afterlthe injury sustained in the course
A employment norltol the facts elicited in the cross
Medical Officer, Dr.H.S. Manjunath.
l’ . Whereffore, it would be appropriate that the matter
is remitted to the Workmen’s Compensation Commissioner
fresh orders after affording opportunity to the
l0
claimant to adduce additional evidence, if he is so advised
and thereafter pass fresh orders in accordance with lav.’r}r»c
This Court by interim order dated 23″”
directed the claimant to withdraw 30% of_1th.e’:amount*<l
deposited by the appellant insurance::ACoIi':panyi_.:
regard to the fact that the matter isfvnow being', ?l'er1iitte1::lfQ"'tof'*
the Workmen's Compensationiyv Comriiissioiielsgi is
unnecessary to pass thelrecovery of the
amount that is permitted the claimant.
However. the permitted to be withdrawn subject to the result of
the thelVdlWlork:nen’s Compensation
Commissioner. l” pass the following order:–
_ The appeal isiallfocwedf in part. The order passed by the
C –Labo1ir Bfficer and Workmen’s Compensation Commissioner,
Bangalore in WCA:NFC:CR:26/2005 dated
28″5?_4’lhMa}r.–‘L5;t}OV;’? in so far as it relates to awarding of
“i..Comper;sation of Rs.3,31,506/- and interest thereon is set
and the matter is remitted to the Workmen’s
Compensation Commissioner for passing fresh orders in
K ‘:4
‘ k; ..>
Q-,
I1
accordance with law, after affording opportunity to the
parties, in the light of the observations made in the body of
the judgment.
The balance 70% in deposit by the appellgaiiatv *
refunded to the appellant as this Co.u1’th.as the, ‘A u
30% of the amount which is perlnizttedbhto
the claimant shall not be recdvétefid atA’t1’1i_B ~5t§é’¢ * L’
be subject to the final forder ‘passeti by the
Workmerrs Compensatidn *Commiss.iofiei’.._ ”
BMV*
