IN THE HIGH coom' 014' KARNATAKA, BANGALO_R'.§'.__
DATED THIS THE 15m DAY op' sEPrEMBER_,;'_"2o!10 .,fi
PRESENT
THE HONBLE MRJUSTICE K,4L.ntA,NJUNAr:;§
THE HoN'BLE MR.
MFA.No.2*ro'i: of'
BETWEEN:
A.A.Circ1e, Shimoga, - «
Now represented.' by*_'i~tS" , V'
Regional Manager', 1}, H = V '- '
Umted Indl8;"IflSL-1I'A9i.jIilCe 'Co. Ltd-.,
Regional Office, _ -- .
Shankaranafayana
No.25, M.G.Roa_d, » ' .. '
Banga1ore~-560 00.1." ...APPELLAN'I'
United Indla Insuranejefio.,, Lt{i...,j -
(By Advocate)
_ S / oI'Me},iaboob Ali Khan,
r.Now aged; about 28 years,
2 .,,R,/at A.A'.CoIony,
"'.Nea.1*Railway Station,
szgimoga.
5*'
IQ
2. N azeer Khan,
S/o.Kha1andar Khan.
Now aged about 50 years,
R/ at A.A.Co}ony,
Near Railway Station,
Shimoga.
{By Sri.R.Gopal (Noe), S1'i.VijayakumataLr._13:i;PAati1i»E3~ri;Sa'nthosh'~,
S.Nagara1e, Sri.Madhukar S Deshparide.Adiroeate"for-R,V113
MFA filed U/s. 30(ft}.__ of sthetVi.:§VC-.._Act,d 'against the
Judgment and Award passed in
WCA.No.I2/2004 on. the efiieh. ifofy it Officer and
Commissioner for ¢ornj§é1q.5ation, Shimoga,
awarding compeiriséitionyh Wvith interest at 12%
p.a. from 25.1 deposit "Conipens'ation amount and
directing -.de1i)osit the same.
This iiaving and reserved and coming
on_._ for pronouncement. of Judgement this day,
delivered the following:
'idJUDGMENT
United India insurance Company Limited being
the award dated 8-12-2005 passed in
JP
WCA/CR-12/2004 by Commissioner for Worl;men's
Compensation, Shimoga, filed this appeal.
2. The brief facts of the case are as follows: __ V «
The first respondent filed a
Commissioner for Workmen.’s Con:.pensati’onI_:._,see;i:ing_t>
‘ compensation. He has contended uthat he Wasfiiroriéing as a
cleaner in a lorry bea,+:’1:g No.KA-20/163
belonging to the second after
unloading the returning to
Shimoga. While’ p.m., near Holehatti,
the lorry inan’ accident, while avoiding an
oncoming t§i§=. duestion dashed against a
roa.dside_.. after the accident, the claimant
shifted ..to«.,Me”cggon Hospital, Shirnoga for first aid and
therea1″t,er,.~’h’e’ V’éi’i;fas,I=.Vshifted to Victoria Hospital, Bangalore.
V7fl’he.Doctors of Victoria Hospital, in turn referred the claimant
Hospital. In View of Deepavali festival, doctors
l”4’V.’jw_e’re not ‘available in NIMHANS Hospital and the claimant
/5/J
was admitted to Abhaya Hospital where he had _.-taken
treatment. He contends that he was an in~patient for:
of 21 days and he has spent huge amount
treatment. The claimant contended :t’nathe ‘lwasl ah’ou’t
26 years as on the date of accident. ‘fh.e the=
was paying a salary of Rs.4,0G0l/ day it
as batta. He has contended that thellaccident, he
became permanently disabled ‘fo;f,compensation.
3. in pursuanyce. Commissioner for owner appeared on
the first date –_()fA not filed objections. The
Insurance denying the averments
made ‘claim and also contended that the said
lorry ‘iS!VlCQVC.1’_vc”d insurance, but it is for the claimant to
prove. sought for dismissal of the claim
petition.
4. On the basis of the pleadings of the parties, the
Commissioner for Workmen’s Compensation
necessary issues.
5. In order to prove their respectiife’
claimant examined himself as »P,W. reiiedaluponf
documents marked as Ex.P.1 to 1 llegcainined
two other witnesses and
Dr.Prashanth N.T. as Court
Commissioner. H the Insurance
Company, the Assiatégnt Cfficer was examined
as R.W.}. marked in”s2.irance policy as Ex.R. 1.
6. The evidence has deposed that While he
“ret1i1*–nin–gfr”oni Daifanagere to Shimoga, the accident has
occurred; avoid the oncoming Vehicle, the lorry in
against a roadside tree. The claimant
‘ “”su:stained grievous injuries in the accident and he has taken
C”«.:’tre’atn1er1t-din Abhaya Hospital at Bangalore. He has also
é~
deposed that he has undergone two operations. Due to the
accident, he has suffered permanent disability.
‘7. The claimant was thoroughly cross–exarnin:ecif_i.by the
Insurer. In the cross-examination. the clairnant dephosedfthati
due to the accident that occurred he’fvvasf”~oop
seriously injured and he has treat1ne:ntV’Afbhaya
Hospital at Bangalore. been
produced in that regard. has treated
the claimant through Court
Commissioner. ‘,I)oc”to3fVs’i’~’:i_r:._ their} evidence have clearly
deposed that the clai:”riaritp>’ha:s*’-undergone serious injuries of
multiple facial”-ogignjugriesiff Maxillary fracture Lefort-III,
fifacture pl rnaridible parasyrnphysis, fracture of right
Zygom ‘invo.1ving..ithe _ Zygomatic arch.
The~..__fInsiure13’ ffiled additional objections on 18~8–2G05
“‘eionte’nding the vehicle was insured in favour of one
._ “Na1:osIiad».aj1d the insurance is still in existence. However, the
/£4
claimant claims under Nazeer Khan. Hence, he is not the
employee of Naushad and he cannot claim compensation..{V.,_
9. The Insurer in its objections has admitted
lorry is covered by insurance. However, “iti.s?aiso- contended«
that the policy has been issued to. Naushad._and pp
verified in whose name the R.C. has not
disputed the accident that at 8.30
pm. and the claimant ismvthg the second
respondent.
10. On the of the parties, the
Commissioner tor has held that the
accident tool; lvAO:2OO3 and in the accident the
claiirxanfhas-.”suffered’serious injuries. Further, the claimant
is second respondent and the accident
it the course of employment. The
further held that as on the date of the
the said lorry stands in the name of Nazeer Khan
29/
who is the second respondent in this appeal. The instirance
is stiil in subsistence, hence, the insurer is Iiabie”.tfo«..’_0p«ay
compensation. Taking into consideration the age”and:i6f)%y:’ofA
the salary drawn by the ciaimant, .the__4Cornniis’siener4_’_jhas ‘Au
awarded compensation of Rs.5,16,672/
and also awarded interest at th’e_V:vyi’ate of 1_2%_0po,a’;=.yrromi the”
date of the claim petition.
11. Being aggrieved by’… by the
Commissioner for the Insurer has
come up in this award passed by
the iaw. He has contended that
the claimant 3 injuries. However, the
has consideration 100% disability
awarded ‘conipensation, which is contrary to law. The
Doctors_«.whov.Vhad: treated the ciaimant have deposed in their
_V7.e\(id.ence ‘that… the disability is oniy 50% whereas the
«1.'{io1nj:n.issioner has taken 100% disabiiity, which is contrary to
sought for setting aside the same. Further, the
/5~
Insurer has also contended that the interest awarded at 12%
p.a. by the Commissioner is contrary to the judgmen.tV_:7trhe
I-¥on’b1e Supreme Court.
£2. %Sri.Vi}ayakumar A.Pati1, learned
the respondent-claimant contended thatvthe
for Workmen’s Compensation ‘thehievidence
on record and taking inré’~~..c0n;sider’ation*-the and the
saiary drawn by the iavifarded.i-icornpensation,
which does not cail this—-€iourt.
13. We }i’iai%ef the arguments
addressed tor the parties, perused the
award pVassedd”~ hthexu Ciommissioner for Workmen’s
ci§5nip¢n$§é;itmr and documentary evidence of the
parti.es.__. 2: it ” V’
It isnot .in:’.:di.spute that the claimant was Working as a
in lorry bearing registration No.KA-20/163
the second respondent. While returning from
é~
Davanagere, the said lorry met with an accident on Shimoga~
Honnali road. The claimant has contended that the of
the vehicle was paying him a salary of
Rs.50/- per day as batta. Though the owner ._
the Commissioner, he has not filed=__
claim petition. Immediately after-the
was shifted to Mecggon Hospital aid and
thereafter, he was shifted From there, he
was shifted to NIMI-EAVNS, ‘there were no
Doctors available. he was admitted
to Abhaya summary issued by
the Abhaya was admitted on
26102003 1-.2003. He has undergone
operatiens.V 1I?’o!C:;tors who had treated the claimant
claimant has suffered following injuries:
1’. m’°.__ ‘A ‘facial injuries;
[ii)l'”‘— E¥._/Lvlvlaxillary fracture Lefort~III;
.. (iii) ‘Fracture of mandible right parasymphysis; and
fiv
(iv) fracture of right Zygoma involving the Zygomatic
arch.
The Doctors have further opined that in vi_ew~ above
injuries, the claimant is likely to:=__v
Further, he is disabled to do the__.work._o’f a c1:eaiie1goi9
manual work due to the injuiieis’-,:suffered The
Doctors have also opined«–_..that._ hje undergo future
operations to remove. the iinplanted in the
facial operation.
15. Thoughf» the whole body
disability of the functional disability is
100%. Adniittehdlyaviie’.isAAan’illiterate Working as a cleaner of
the unable to do any other work than the
clea’n._ei’_or’ fcoo-1ie.lh’ view of the accident, he is not fit to do
majiual Hence, he suffered functional disability at
.. i ‘A ‘i’a}<i11_g-§h:'into consideration the functional disability, age
drawn by the claimant, the Commissioner for
E3
Workinerrs Compensation is confirmed. However, the
claimant is entitled to interest at the rate of 7.5%
the date of claim petition till the date of award
of 12% p.a. from the date of award til;1idepoisit'," it '4 it
The amount in deposit before this
be transferred to the Comrriis'siorier'."fo1_9_: Workmerrs
Compensation, forthwith. V
sari
judge