1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30"" DAY OF OCTOBER. 2009
B E F O R B
THE HON'BLE MR. JUSTICE B.SREENIVASE GQXNDA
Miscellaneous First Appeal No. 10602 of "
Miscellaneous First Appeal Nos. 108.03 R.
BETWEEN '
The Oriental Insurance Co.,
Represented by Regional Office," :4
No.44/45. Leo Shopping'C_Omple.X,°'--if %
Residency Road, . 1
Bangalore -- 56Ca'0_25.
By its duly Consfritutetd A;,:-'u5rrj.'eg{; as
APPELLANT
{COMMON}
(By C. Advocate]
'~ ,1 _ i:'S:jr.. S;.a.nga1lIV)'pa;" 'V
_ Aged-.2'5.years,
V' 0., st; Malakappa Haravi,
-A ' '-5R/o.'4-%-11''Cross, Magadi Main Road,
Ko~tfigje;)alya.
l Bangalore.
" ''~ Sri. Kumaraswamy.
' °'l\/Iajor.
S / 0. Sri. Shadaksharappa.
Owner of Lorry No.KA~02-A--9619
R/0 4"! Cross, Magadi Main Road,
Kottigepalya.
Bangalore. _ __
. RESPONDEEXITS; IN
M "FA No. lO6_02f'Q'8.a_4
Sir. Rajesh,
Aged 21 years,
S/o. Sri. Channabasapp, I M "
R/0_ 4:11 Cross, Magadi Main Read, " ' '
Kottigepalya, l. A' ' -.
Bangalore.
Sri. Kumaraswamy,
Major, _4 V
S / 0. Sri. Shadaksharappia; AA
Owner of Lorry No.KA--()2-A-9619;.
R/o 41:1 Cross, M'a'g'adi lVIaiI1_
Kottigepaljga,' '_ " I
Bangmo1je§I__j_ '» _:
. RESPONDENTS IN
MFA No.10603/08
Sir. P4ral<asI?I',~e_M __ _
Age.d24 'ye_arsA',-- _
S / o. L 'S_r'1;v Rarnanr1a7Hunas akatte,
' Rio 41:1 =c1fos's_ Magadi Main Road,
. _ Kottivgepalyav; -------- ~ *
A Bagngallore.
." -. S'ri."_"Kur;fiaraswamy,
Ma5'0"r_;~ '
' .S',/_Vo. 'Sri. Shadaksharappa,
'OWn.er of Lorry No.KA»O2~A»9619
AA R/ o 43* Cross, Magadi Main Road,
Kottigepalya.
Bangalore.
.. RESPONI)E1N'.1'S IN
MFA No.10804/08
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(By Sri. Prakash Salmani, Advocate appearing for
Sri. N. M. Handral, Adv. for R1 in all the appeals,
Notice to R2 dispensed in all the appeals)
These appeals are filed U/Sec. 30(1) "of:
against the Judgment dated 20.08.2008ll,_
WCA/NF/CR-289/2007, VVCA/NF/CR-290/2097 C' and
WCA/NF/CR--291/2007 respectively on . the' '-file of Lab.o1i1f L
Officer and Commissioner for :'Wo1*k::1e«n -:Co_m.peVnsatilon,
Davanagere District, Davanagere, aW'ardi"ng7-f a C
compensation of Rs. 1,45, 195/-- linterest'_;@A. "120/o';. "
These appeals are comiriéon forl'ord'ers, thisllday, the
Court, delivered the following. 7
challengingpplthe ofcompensation awarded by the
Labour-_ l'Qfficer~lf"Commissioner for Workmen's
Compensation, District, Davangere (for short
"V ' _ 'Co_mn1i_issione'r*')';' "
ltlf1_e'y;;"are arising out of a common judgment and
award the Commissioner, they are clubbed together and
llftaiietl for final disposal with the consent of learned
Coiinsel appearing for the parties.
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3. F or the sake of convenience parties are referred to as
they are referred to in the claim petitions the
Commissioner.
4. Brief facts of the case:
That on 22.07.2007: _4_When_T'the
working as driver and bearing
registration No. to the 1st
respondent herein the accident, as a
result, they they filed separate
claim Commissioner seeking
offthe lorry was placed ex parts
and he petitions. The Insurance
Comfippaily fileti statement of objections resisting the
» clan' m petitions__.
in support of their claim examined
~V theinsehfeslllas PW 1, PW 2 and PW 3 respectively and Dr.
R. Ullal as PW 4. They have produced as many
' l5 documents, which are marked as EX. P 1 to P 15.
The Insurance Company except cross examining the
claimants and their witnesses and producing the
insurance policy as Ex R 2 [1] did not any
independent evidence.
6. T he Commissioner after :c'onsidering;. orai Va-ifidif A'
documentary evidence of the
judgment has held that thet:ciaim.ants_ 'haired"established'
that they sustainedirijuriesllllinvt-I'the-accident"occurred in
the course of and out they are entitled
to seek Commissioner
taking into cov:';s.i_deratio'11__the age of the claimants, nature
of theirjob, ith'e"wa'gpes by them, the disability stated
byythe doctofand' assessing the loss of earning capacity at
35% and applying the relevant factor as per
the impugned award has awarded a
cornpe'nsation of Rs.i,45,i95/--, Rs.1,20,960/- and
it nRs:.1',3Vé,568/-- with interest at 12% p.a. after 80 days
the date of award. Aggrieved by the quantum of
compensation awarded by the Commissioner the
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insurance Company is in appeal seeking reduction of
compensation.
7. As there is no dispute regarding injuries Sustained
by the claimants in the accident occurred in of
and out of employment and the liability of
Company the only substantial quiestion'l--.of lthatslarisesi 1'.
for consideration in these appeal is:
Whether the Commiss~iconer" «. is justified in
assessing the wages otfmthejclairrrantsat"Rs.4,000/-
pm. in the case"of dyri-Vper,'a.ndlpRs;i3,000/-- in the case
hamalies and assessiniglthe_-loss'~of'_.earning capacity
at 30%, 30°/o a1'1d*35% ._respec.tively and awarding
comperisation with inter'est-at..l_2% p.a. after 30 days
from.the.4_da,tte of .award?_" .
8. _ Sri nR.._RaVivsha"nkar, learned Counsel appearing
V' . fo1§._t.he:..y'Insurance'Company submits except the self serving
claimants that they were drawing wages
of and Rs.4,000/~ respectively excluding batta
ofpRs.5.{l)/-- per day they have not established the same
if Vei'th:er by examining the owner of the lorry or by producing
" ~-any documentary evidence to that effect. Therefore the
fig
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Commissioner is not justified in assessing their wages at
Rs.4,000/~ p.m. and Rs.3,000/-- pm. respectively. He
further submits that the accident was at
Davangere and they were provided first aiddratv '_
and continued further tre'a'tnient".4A T
Dr. Umanath R. U11a1, PW :2
treated the claimants the
stating that the claimants 40% and
45% respectively and not justified in
assessing the of".earriing'=eapacit}? of the claimants at
30%, He fairly submits that
interestprnay be per the judgment of the Apex.
Court in the" Case A'oi"{5r°iental Insurance Co. Ltd., vs
ariti""Another reported in 2009 AIR SCW
for allowing the appeals by reducing
theipcomperi-sation.
Per Contra Sri Prakash Salmani for Sri N.M.
ifiaudral, learned Counsel appearing for the claimants
submits that the Claimants by working as driver and
V5'
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Harnalies in the lorry belonging to the 2" respondent
herein before the Commissioner was earning Rs__._5,000/-
pm. and Rs.4,000/- respectively and thejr'efe--r;é'--.,,' the
Commissioner is not justified in assessingjtheir:'wages at
Rs.4,000/-- p.m. and Rs.3,000 pm, lfle lfiirrfirripéf subinits§«
that PW 4, though is not
issued the disability
claimants and therefore the'tior;irrii.sgsioner"isgustified in
assessing the loss of 300/0, 30% and
35°/0 respectivlelyf.' Hie that the interest
awardedby;theit'Caminis-sioneris contrary to the judgment
of thel'Supre1ne'«.Cro1j.'1*t_lin.the case of Oriental Insurance
co._Ltd.,"vs V_'IiIaIz\cii.i'-.1i\fc1.sir and Another reported in 2009
"3.7i7l"and"therei'ore he prays for dismissal of the
...i_»
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10:2 Tvhehre is no dispute between the parties that the
it claimants While working as driver and Hamalies in the
lorry belonging to the 2%” respondent herein sustained
injuries in the accident occurred on 22.07.2007 in the
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course of and out of employment. The claimants have
stated that by Working as driver and Hanialies ._lorry
belonging to the 21″ respondent they were.–ealrnli1f1g’ more
than Rs.5,OOO/W p.In. excludingloatta ot”‘}<s;i5yol/4 per
in the case of driver and Rs.4,OE)AO/';'f_'i
of Rs.5O per day in the case of
lorry was placed ex parte lcorltest the claim
petitions. The not adduced any
contra €VlClE?.11Q:{:3Q of wages. The
Commissizbhtgfy age of the claimants.
nature" accident assessed the
wagesloflltlhe and Rs..'3,000/–
p.m,_Thel4ls'ai_d .firiding""of the Commissioner is based on
a11d'thereHis"'no substantial question of law involved
and' V"tJJ_'g.:io not propose to interfere with the said
finding.~of_ vfaclts of the Commissioner.
1 or. Umanath R. Ulla}, PW 4 has stated that the
claimants have sustained disability of 40%, 40% and 45%
respectively but he has not stated the disability caused to
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$0
the whole body and the loss of earning capacity on
account of the injury sustained by the Claimants in the
accident. In the absence of the same it is not;p:¥ope:' for
the Commissioner to assess the loss of earrzifigvccapacity at
30%, 30% and 35% respectively,"
12. In MFA 10602/08 the
tibia and fibula bone midd1e’v’third_Vof He was
working as a lorry the said
fracture it cannot ‘continue his job
with the with which he was
doingflv’ However considering the
nature of of loss of earning capacity at
30$?/£_%.é’«’l’V3y.the Coriirhissioner is on the higher side. It is just
,A p1;;0p€l’:’tO assess the loss of earning capacity at 20%.
1rf{sox.” ‘éV”.Corri:i5ensation would work to Rs.96,’796.8O
[Rs4;’2,4§VQO./: x 201.66 x 20%) as against Rs.1,45,195/-
V’ » axivardeid by the Commissioner.
$
H
13. The Claimant in MFA 10603/08 has sustained
fracture of the tibia bone lower third and fracture__.of lower
and radius end bone. Considering the same ass_esVs_’me’nut of
loss of earning capacity at 30% by the Comrnissiorier
the higher side. It is just and p1*’op’er.t’o”_.jas_sess’._the-tloss off
earning Capacity at 18%. If
work out to Rs.”/2,576/~ (R’~°$l1″;8OO”/4″?$é zgmgii 18%) as
against Rs. 1 ,20,960/ awarded’ Commissioner.
14. The claimant has sustained
fracture oft.-S§11aftj:i’Qo-f’ middle th-irid tofifight femur bone fixed
with interloeiiingitripaiiijtconsidering the same assessment
of loss ofearnirig that 35% by the Commissioner is
onxthe higher’ is just and proper to assess the loss
»’ of .eva1’niiA1g.oap_acity at 20%. If so, the compensation would
war]:r3u£’.:o’ji§sd;79,182/W [Rs1,800/~« x 219.95 x 20%) as
again.st,Rs.x:1,85,568/– awarded by the Commissioner.
With regard to interest the learned Counsei fairly
submit it may be modified as per the judgment of the Apex
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Court in the case of Oriental Insurance Co. Ltd., vs
Mohd. Nasir and Another reported in 2009 SCW
3717 wherein it is held that the interest has to axafarded
at 71/2% p.a. from the date of claim petitionjtillv
award and 12% pa from the date’ of ‘award. of
payment.
Question of law is answei=ed as abov.e_;; A d
16. Hence, I pass t1’eieV.fo11osiiii1″rgi: ._
*oReeRgf%
._ — are aliowed in part and the
d’ 4′ ‘award of the Commissioner is
a”:n:odifi*ed’;»_ ‘ ‘A
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claimants are entitled to a total
eonipensation of Rs.96,”/96.80, Rsf/2,576/–
Rs.79,182/– with interest at 71/2% p.a.
from the date of claim petition till the date of
award and 12% pa. from the date of award till
the date of payment and no order as to cost.
$3