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Karnataka High Court
The Oriental Insurance Company … vs Ramanna S/O Doddappa on 8 January, 2010
Author: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT
DHARWAD.

DATED THIS THE 8% DAY OF JANUARY 2010
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KL§l'.4E..fi.iR<_ ' 

Miscellaneous First Appeal No. I3:"59b1,,pf: 240

Between :

The Oriental Insurance
Company Ltd.,

Regional Office

44-45, Leo Shopping Com
Residency Road,
Banga1ore~56O 025, V

Its Administrative Q:fiic_er. f

pi'e_).:' _' 
(By Sri. Arunei 13é»s43;1;iig{:1-;ie'vrc§; .3: .g_ris:..he;3;ia, Adv.)

And :

.~ , Koiagailu

Ramanna  _

S/0. Doddappa .

Aged 26 years}, _
R/o. Sfzuhyavani Nagar';
Rcjad, A'

Beilaiy.

  d  
S','.Q Q ' 'V_eeré1bh~a4_draj:315a
Major,'  
Owner. of fiaiitor

'No. KA :7/5071,

ickshaw

 ' " - __ R/AOT Sathyairani Nagar,

'V V' V. :E3e11'ary:

... Respondents.

— Ravi.D. Hosamani for Lakshmikanth Reddy for R-1)

gay’ Sri. Veeresh.B. Patil for R-2)

… Appellant.

This Miscellaneous First Appeal is fiied u/s. 30(1) of WC.
Act against the order dated. 28/02/2004 passed in W,”C-._ No.
114/2002 on the file of the Labour Officer and Cornmissio_iier~i.for
Workmen’s Compensation, Sub D£vision–2, Bellary, part_ly _a1iqwed

and awarding compensation of R’s.1,10,208/~ with in.teresti.a’t–._1i7Z?o’
p.a. and directing the appellant herein to pay the same .within*3Q

days from the date of order.

This appeal coming on for hearingthis.dayi;:C.o-uft irnade
following: — ” » A

JU1)Gi\rll:i?«.v;1§j_1fV_
The insured is questioning thei.eoirreetness.aridlegality of the
order passed in WC. it Commissioner,
Workmen’s Comp’ensatioij~;.,’. Bellary

d:c1.2s/02/2004, ~ ‘

2. Thevifacts follows~

The rani«;’=oi” partli’es’i”a’s before the Commissioner for
Workmen4’sCompensation, are being referred in this appeai for the
of .¢§nv¢iii¢e ‘

Rarnanna workin as a driver of auto–rickshaW

V’vv:_AAi’llEv3learing No. E__{A-li”7A/6071 beionging to one Sri.S. Veeraiah had

the said :auto–ricl<shaw on 12/01/2002 and while returning

i""frorri't,he..viilage at about 4 p.m. to avoid collision with the Vehicle

coming from the opposite direction in front of the Engineering
college gate, Airport road, Bellary, took a left turn of the auto

rickshaw on account of which he lost control over the veh4iele'-.ai:d

turned turtle and fell down, as a result it was

sustained fracture of his left hand and other in_iuries:fan'd.: tooled'

treatment in a Private hospital.

4. On account of the injuries sustained, ia..claim.Ipeti’tion “was i

filed as referred to supra claiming”r«i.;a’. tota]i”corn§i§ensation of
Rs.-4,00,000/-. On service of’f1Q’£icei’ither-iiznéi-ii’respondentdnsured

fiied its statement of objections denyin’g’t}ie a}fer_inen_ts made in the

claim petitioijiiiniitotojgv ‘l’l’:ii¥,:4iiisdri:..i.:andlstiljstance of said objections
was that, cornplainti 13 days from the date of
accident, no _woLi1n’d g_certificia*tei’iiad been produced, Doctor, who
is;s;i1e«d_ certi’fi~c–a’te has not treated the claimant and

there. d’isahi’iity’*to the injured. Before the Commissioner for

l ifs’–iW,ori<rne1ifs'Cornpcnsation, the claimant got himself examined and

veuxaminedione Dr. Lakshmi Narayana and got marked Ex.A~»~1

'fto herespondent examined its Manager and got marked the

loolicy. During the pendency of the proceedings before

the Commissioner for Worls:men's Compensation, an application

came to be filed by the insured under Sec. 23 of the

Compensation Act r/ W. Rule 34 of the Karnataka

Compensation Rules seeking thereunder a direction" to fine 'insurer '

to produce the required evidence of witnesses.f?as1,al-so" retfai_re.d it

documents, the said application carr'ie.__to ber_ejected."b;:{Aa'n Order

dtd. 21/ 02/ 2004 on consideration _rivall'claims advanced
before it. The Commissionerioiflworlrrtilenisfiompensation by his
Order dtd. 28/ O2 / 2OO4lV'ordered_v:for bifjvcompensation of
Rs. 1, 10,208/«« toget§_ieri'ip;;vQiVth is payable by the 2nd
respor1dent– avvard, which has been
assailed by It is seen from the
order sheet that be admitted and since by order
dtd. 28/ l02VOO4li4l;o\V7_verVC–ou'iit reicords had been called for and is
avai'lable file, thAe"m'a*tter is taken up for final hearing by the

consent" i.le–ar1;.e'd.;icounsel appearing for the parties. The

i iit"AA__appellantphas raisedtizthe following substantial question of law for

considered and answered in favour of the appellant. The

5 same 'reads. as follows-

Whether the appellant is liable to satisfy the

“‘a”u2ard made by the Commissioner for Workmen’s

Compensation, when the disabiemenzf suffered by the
claimant/ respondent No.1 was neither permanent nor

partial disabiement.

5. I have heard Srnt. Aruna Deshpande, ”

appearing for the appellant and Sri.
counsel appearing for Sri.Y. Laleshmilclanlthl Retl.d;rl:v”forll
respondent in this appeal. It is contelnlciied by the_le’af.t-ietlfcounsel
for appellant as folloWs– V ‘A l

(i) The accident in question 01/2002 and

the complaint hdstbeen and there is

no explanation the delay in filing

the comlplaiptAandyh_e:nC¢”on ground the bonafides of the
claimant cannot

{ii} The claimantllllhalclpplnot procluced the wound certificate and

the disability by a Doctor, who has

Aexan_1ined.:V’th.e claimant, subsequently is of no relevance.

7,_(i’i’i)= The Qoctor, issued the disability Certificate Ex.A–6 is

3″-‘««___ln.ot a O1ft_h’opedic Surgeon and as such he is incapable of

llcertlfylhg the disability. ‘3%””‘

{Vi}

. iiilfasir & zéiriother reported in 2009 AIR SCW 3717. I

It is contended that the Doctor, who has issued the disability

certificate has to speak about the disability of the infrared

and certify the proportionate loss of earning Capa_Qi_Ljy’.i(i):f V.
injured and it is based only on the said opinionas per:
clause-C of sub–section (i) of Section iofthie

quantum of compensation can be “asisessedr ‘and’

otherwise.

In support of the said eo-riptentiondiJudgrrient of
this Court in the case Patil and
others us. Erappqfifasappa reported in

ILR 2004 KARi”‘],’9:i:at paiifaa is..’prlessedminto service.

It is also Commissioner for Workrr1er1’s
Compensation has.”a_jwardeid’«.12% interest to be deposited

within one date of award for the period of

“a,fteri..thei,.A’lapse of orie”‘irionth from the date of accident and

law laid down by the Hon’bIe Supreme

Court in _theIp_case of Oriental Insurance Co. Ltd. :2. Mohd.

6. Per contra, Sri.Ravi.D. Hosarnani, learned counsel for the

respondent/claimant would contend that mere delay in filing’-.the

complaint is not fatal for making a claim for

compensation under the WC. Act. He would also subrnit jtb.at’ M

medical records of Karnataka Medical Colf_e”ge*had

which has been examined by the Cornmiissianer for __.Wor1:;rr;e’n_fs”i

Compensation and based on this reco:r”d~.V_andi.Val.so’ of
the x~ray taken on the date of accident’,-.the_dis.ability cdrtificate
viz., EX.A~6 has been issued and issued Ex.A–
6 has not only been éexaminediibyhiibut also been
cross-examined urged by the

appellant herein. withstood the cross”

examination and award of the Commissioner does
not call for: ir1’£/’?l’feri:?..1:V”(”:01V.’17§1”l’. reported in the matter of Sn’. Aieemuddin and Others vs.

The Divisional Manager, M/s New India Assurance Co., Ltd,

Gulbarga in ILR 2009 14.22 and accordingly submits that the

question of law formulated in this appeal is required;’*.tlov,:l::ev

answered against the appellant and in favour of the .

and accordingly the appeal be disrnissedh _ :-1a:.«1’n’g’ v”the»e.:

learned counsel appearing for the parties, it

extract the relevant portion of the .C. for of

convenience.

7. Section 3, which is an.enab&l.ing–proV’is_ion fora workman

to claim compensation reads as follows.;_

3.:._#vEmploye.r’s for hconipensation — (1) l_’f
personalhinjuryl workman by accident
arising out lofuand of his employment, his
employer _shall Vllialéle to pay compensation in

‘l V’ “a.cco’;=dan;ce with the proaisions of this Chapter:

;réro.ia:igéii ,:-hat the employer shall not be so liable-
l’ _h{a) of any injury which does not result
z the total or partial disablement of the

Vuusorlcman for a period exceeding (three) days;
” in respect of any [injury, not resulting in death
V’ (or permanent total disablement) caused by]

an accident which is directly attributable to -~

(gt

{i} the workman having been at the time

thereof under the influence of drink

drugs, or y __g __

(ii) the wilful disobedience of the worknugn re,

an order expressly given, __or to a”

expressly framed, fore

securing the safety of workmen, or y’ A A

(iii) the wilful removal–,or~,_disregard.’by
workman of any safety guard’ orilother
device which_”‘i~..he been
provided for the
sc1fei3rb’3J’j_luorkiiiari.:/it A’ *t t _–
Section 4 (1) to) as follo.uis–‘-.

4, :.Amoun’tIo_f co}*npens€’,tion —-

(c) Wherel ligperinanentu in the case of an injury
partial disablement ‘resu_ltl’~~– specified in Part II of Schedule

frométghe irijury __ L such percentage of the

compensation which could
have been payable in the case
of permanent total
disablement as is specified
therein as being the

percentage of the loss of
earning capacity caused by
that injury; and

{ii} in the case of an injury not
specified in Schedule I, such
percentage of the
compensation payable in the
case of permanent total

(fg,./

11

Charge sheet at E:-<.A–2. It is stated in the deposition of the

claimant that immediately on the occurrence of accident_rvhe"-was

shifted to l\/[CH hospital at Bellary and as such he _

complaint before the jurisdictional police. ll"cross~–_.i

examination there is no suggestion made to,thegsa.id'

regarding delay in filing the cornpla'i.nt. ll1't_ has
evidence that, on being admitted to it treated as
Medico legal case and imrrie.di*a_te;l_y i'..,info'rn'iationi from the
Hospital Authorities, the policeA..ha_vey jyease as is found
from the cross»exaIirii4n§:A2'tlonfoef 30/12/2003.
Hence, the for appellant that the
delay in be cannot be accepted and

accordingly the said hereby rejected.

9. Ree-.eclontention_.:No. ‘2 :– It is contended that wound

ceirti_f1(:a:te., been produced itself goes to show that

claimanti”had” ‘suffered any injury and the injuries now

propounded byvihiizil in the disability certificate are concocted and is

to beconsidered for being brushed aside for the reason

i”<:.that._lthe"'Miedico Register Extract has been produced by the

elairn-ant before the Commissioner of Workmen's Compensation

Q9,"

12

and the nature of injuries found at the time of admissions is noted

in the said register, the same being an attested copy i.e., attested

by the Medical Superintendent, Medical College Hospital”,

cannot be said to be concocted as is canvassed’ it-ii1’Efifi” ii

Commissioner for Workrnen’s Corripens-ation. p
accepting the same. Though a feeble atteiniptighas
the learned counsel for appellant
which is said to be one of the find”ai..pla_cie in the
said exhibit, viz., Ex.P~»5, i.ei,ii”l’.iledico_vgiQegal*iiReigi*ster Extract, by
itself cannot be a ground. to there was no

fracture for the obvious at the.._4–tirfne of “admission it would

not be possib:leiiitoi_i having occurred by
physical €X:’31I’i)i_i”1’i«jr~/;v.&1i;l(‘)VI1.’ on the detailed clinical
examination that doctcrrsiiwould be able to assess as to whether
tlriefirie’-.areiiiinjuries like clotting of the blood or the

fractiu§e”‘ifi_ai1.}f,”-viih»ich_can be noticed. A perusal of the said exhibit

A-Slit see.n,l:ii.i,l*ie Doctor has opined that the fore–arm of left

..i_ih.and.there is a ‘swelling and requires to be x–rayed and it is this in

thekclairnant contends where fracture has occurred.

i” i.E’m__otheri;aspect which requires to be considered for rejecting the

I3

contention of appellant in this regard is the X–ray film produced at

E3X.A–7, which was taken on the same day of the accident. T.h”is.gX–

ray also having been scrutinized and analysed by the 3

issued the Disability Certificate, has spoken about

having occurred. Hence, the contention of’n_on–p.ro.duction5of

Wound certificate is fatal to the claim petition islliablee.

rejected and accordingly it is r6jected.i”–vs.:

10- wWRe____a.,m..___’°°ntenti°n N0-‘ 377 it thatiiiDocto1’, Who

issued the Disability Certificate not treated the

claimant and as is tS~__ub;n–i..tted. llt’hjat,_.Dijsability Certificate

cannot be ar:cepLeldtiandifit i’s.i_reiquired”‘to be rejected. On re-
appreciation the Doctor, it is found that the
author of ‘EX.Pti-€}«_Vl3€ili1igI Lakshminarayana, has been
e;<arnined_':*t1siE_t;.Vv'.2i.ia'nd___hev has stated in his evidence about

clinically 'and..phy'sic'al.ly examining the claimant before issue of the

Certifiicate–…i' iHeii."_Spe'ciifically states that, on 21/11/2003 he has

ill_exarninedil'Sri;*f§aniianna S/o. Doddappa, aged about 25 years for

.edisai'o'i1ity assessment. He also states that said person

ii'–.:_iipresented hirnself for being physically examined and after having

14

examined the said person, found on such examination certain
disability, which by his own words reads as under-

On examination today his other external
were healed up, the operation site showed the
healthy scar of 10 cms in size with wasting’*~of:l~the~l:: <
muscles around the region due to
mass is reduced by 3 cms due to which inouexiientS ii
of supination, pronation, latera3ii_ro.tatiori'ahd'Vhooh
are reduced which are essential'f_o'r' _manlagirig' 'lAu:t:-Q,
thusimpeded ofhisprofesfiion. 'V

11. it has come on recordiiths_a’t,iithle has not only

physically and clinically’ ‘exarriine§:1_:;tl1Q¢’«,glaima::ti; but has also

verified the earlieri’i’reeords,ioféiclaimant”pertaining to the earlier
period and oni’«perusi1ig.’ol’.a1l–~._thes’e materials, has issued the
disability certivficateif lilence, tvheiciontention of learned counsel for

ap_pell*ant .l:1€’l_”Cby~. rej ected”. “” ” ‘V
l2,,i’Re-e.or.texV1fio_n No. 4 82′. 5 :— It is contended by learned

counsel as per sub~–clause(2) of clause (0) of sub-

section (1).i”of ‘Section (4) of Workmen’s Compensation Act, the

{D.hoCtorV»wEaIo<_isslied the physical disability certificate ought to have

.

correlated the injury to the incapacity of the injured to carry on the

same profession and this aspect having not been spoken to by'”..th(i’

Doctor, the Commissioner was in error in awarding compens’a.ti*on’..

under the heading– Loss of income. Accordingly, it isiconteridiedii’ ii

that the award of the Commissioner for W-orkmen’s Co41’npensat_i:onii7..

be rejected. In this regard, the eiecis-_ion of

Shivanagouda Pan”! and others vs. Basappa.il3lhai)iil?taia and
others, referred to supra is pressed intyo——se’i*viceyAas aliso..th¢,.i~elevant
provision of the Act. Sectioniliflr the amount oi
compensation payableunder is subject to

the other provision-s’».of* injury. in. Question is a non-

scheduled that the injury has
resulted in permanent and there cannot be any
dispute thatany compensation in so far as the
cyoncernediiioif ‘sub clause (2) of clause (C) of the section
1 the said injury.

13 N-ow what is required to be examined in the instant case

its whether iitlweingredients of clause 2 are satisfied for the claimant

;toiqua1iiyih4imself to make a claim to award under this clause, the

— ‘
“7

compensation. Subwclause {2) speaks about the compensation

payable in the case of permanent total disablernent as”-_is

proportionate to the loss of earning capacity, requi;:esi’»to’3

assessed by the qualified Medical Practitioner. In the ir:.s_:tavrj1ti.casei’,

in order to establish that there has beeriiiia”‘permaneiitpartiiali’

disability on account of the injuries sustairiediiri. the a_ecid.ent;

claimant has produced Ex.A–6. Thie-éijraetents Certit’icate
reads as follows-

This is to certifgi’ that’ learngaizna S/o.
Doddappa aged about yearsl ifdriver by

profession came”toifor«_PE- assessrnenteonsequent to

RTA he iiwasitreated initially at
VIMS and tater .e Mit:al””;Doctor and was further

managed rne till date.

. epresentedivto rrie with swollen, tender Left
i i’m9rea’rin X revealed # of both the bones of
its mid shaft region upon advise
underwent fiijos’tr.hetic Implantation for both the bones.

it _ He is”und__erphysiotherapy even now.
_ Oneécamination today his other external injuries
r~iwerei”‘–healed up, the operation site showed the e/o
scar of 10 cms in size with wasting of the

muscles around the region due to which the muscle

17

mass is reduced by 3 cms due to which the movements
of supination, pronation, lateral rotation and hook grip
are reduced which are essential for managing Auto,VVt~~.!_i’t._
thus impeded of his profession. i, _ if _ H

Considering the above facts, on venfyirtggii’ 3
documents produced, on physical examination ‘
considering his occupation, I am of the i
is of 35% with resultant decreasev”i_n:”.h.is earnings if 3

capacity.

14. The relevant portion” of thel”s’aiti’oVp’inion of'”ti’1e’V4Doctor,

which was based on both clinical’ examination of

claimant is as follows-_

were healed.iiuppgthei,operation jsite showed the e/o
healthy scar of with wasting of the
muscles aroli’é«’fi1iq’v,réfiioniiidue to which the muscle
mass._§isiVreduced’ cms due to which the movements
aVof.siipinantion,pronation, lateral rotation and hook grip
are are essential for managing Auto,

that s ‘impeded-. of: his profession.

“15. Bas.eti«;_on this observation made at the time of physical

7e’Xa_rn£inatiVo”r1~., of the claimant, the Doctor has come to the

‘dc-onicllosiion that permanent partial disablement was to the extent of

4

18

35% with resuitant decrease in his earning capacity. it is__._this

aspect which has been enunciated by their Lordships

Shivaiinga Pati1’s case supra, wherein it is held in Heactnotie

the following effect-

(D) WORKMEIWS COMPENSAFFION e /icizb A1′ ”

(AMENDMENT ACT’ op” 1 984) — vc}o1APT£;–.«z~2_ iI~– sceH:3:oLE’ Z

1 AND IV »» SECTION 19 — Detennhiination “of the it
earning capacity —-~ Has to be byt_.reife.rei’zce to’t’he.V_worik
which the workmen was A;b”e:ffor–ri1in5gVla’t.__the’~time of the
accident or by reference to his other
work after he has L HELD —-~
Determination’_oj’f.”,Vthe”io_ss has to be
with reference the workman
was capable thehhfirnve of the accident
resultingivitn such not withreference to the
work whic’h..thetAworIerrtar: berfonning at the time of
accident._ Howeoer, .thisӎsVsizbject to the condition that
thegcase the iworlgman establishes by acceptable
_thiat.iafter the inquiry not only he is not able to

‘ he was performing before the

accident not able to do any other work, the

. loss ofeainingihicapacity could be assessed on the basis

it ” ” 1 it” — pfsuch evidence. »—‘*””

19

16. In View of this medical evidence available on record, I am

of the considered opinion that workman has produced acceptable

evidence that he is not able to do the work which he

hitherto and thus resulting in the loss of earning capacity

based on the said evidence. In view of the”sarr1c., ‘the conte.1_ition?ofifi

learned counsel for the appellant is herebyiii’eje’cted. T

17. In so far as re–contentioniilfilo. it is
contended by the learned forapp’e1_l_ant=that tlieiiaward of
interest at the rate of 12.80/o after the
date of accident is down in Oriental

Insurance Company.;:casereferijedto isupra and accordingly

submits that the -.pend’e:.1te:’lite”iritere’st at 7.5% is liable to be paid
to claimant. The’al_earne’d appearing for respondent does
notvpcrossppsswords on-. issue with the learned counsel for

appellant and thisextent the appeal requires to be allowed.

18,i.Tliei.award’p:ini so far as grant of interest to the extent of

ii7_l2.E>’?/o is to 7.5% as held by their Lordships in the case of

, Oriental insurance Company case referred to supra, which would

.i_t’i.lli”vthe’iexpiry of 30 days after passing of the awards and

there-afterwards the rate

20

of interest as awarded by the

Commissioner i.e., 12% is affirmed. In View of the abovefthe

following order is passed:

(17

(ii)

(iii)

(iv)

(v)

ORDER

The appeal is allowed in part.

The substantial questionof Iaw__ jirantedfgereire’. Vt
above is answered againsttlfte appeIlant1aVnd._:inV

favour of the 15′ respondent.

The award Citd. O2/2C{.O-f} by the
Labour Officer and ACOsfT_¢mzs;sVictne’r’foVr-~:..Workmen’s
Compensation,:’Su.7éA¢ditrision’~r;oT};_’~. in W.C.
No. ‘..or;T1;,~ to the extent of

irltcrest exjfitarined herein’ ‘above.

Parties are direVCte’Civ«to’t’bec.~r their respective costs.

The aniount msdépésiztt’ before this Court shall be

.. rtirantsmitteei ” to “thee Labour Oflicer/ Commissioner

V.Vwforfiii/t5F3977″len’s Compensation, Sub–Division-JL

V V

I, A


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