Partly allowed

Sri. Vishnu S/O Shivaji Rathod v. Sri. Mahadev S/O Bhimanna Hadimani Anr.

Karnataka HC17 Oct 2014MFA/30478/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka modified a compensation award. It held the Commissioner's 35% disability assessment exaggerated, capping it at 25%, reducing compensation to Rs. 1,30,146/- but allowing interest from the accident date.

What did the court decide?

Compensation reduced to Rs. 1,30,146/- with interest at 12% from the date of accident (05.02.2009).

Sri. Vishnu S/O Shivaji Rathod Vs Sri… — Contract and Commercial Disputes | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA

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GULBARGA BENCH

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DATED THIS THE 17^TH DAY OF OCTOBER 2014

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S. PACHHAPURE

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MFA NO. 30478 OF 2012 (WC)

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C/w

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MFA NO. 30593 OF 2012 (WC)

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MFA NO. 30478 OF 2012 (WC)

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BETWEEN:

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Sri Vishnu S/o Shivaji Rathod Age: 28 years, Occ: Ex-Driver, R/o: Bijjargi, Tq: & Dist: Bijapur.

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… Appellant

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[By Sri Bapugouda Siddappa, Advocate)

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AND:

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Sri Mahadev S/o Bhimanna Hadimani, Age: 48 years, Occ: Business (Owner of the Goods Vehicle No. KA-28/A-3163) R/o: Bijjargi, Tq: & Dist: Bijapur.

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The Branch Manager, The National Insurance Company Ltd., Behind Siddeshwar Temple,

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Ameer Talkies Road, Heralagi Building, Bijapur-586101.

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… Respondents

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(By Sri Sanjay M.Joshi, Advocate for R-2; R-1 served-unrepresented)

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This appeal is filed U/S 30(1) of W.C.Act against the judgment and award dated 08.12.2011 passed in WCA/SR No.164/2009 on the file of the Labour Officer and Commissioner for Workman Compensation, Sub Division-1 at Bijapur, allowing the claim petition and seeking for enhancement of compensation.

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MFA NO. 30593 OF 2012 (WC)

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BETWEEN:

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The Branch Manager, National Insurance Co. Ltd. Bijapur now represented by The Divisional Manager, National Insurance Co. Ltd. Gulbarga.

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… Appellant

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[By Sri Sanjay M. Joshi, Advocate)

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AND:

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Vishnu @ Vishnu Vardhan S/o Shivappa @ Shivaji Rathod, Age: 28 years, Occ: Driver R/o Bijjargi, Tq. & Dist. Bijapur.

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Mahadev S/o Bhimanna Hadimani, Age: 41 years, Occ: Business R/o: Bijjargi, Dist: Bijapur.

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(By Sri Bapugouda Siddappa, Advocate for R-1; Notice to R-2 dispensed with)

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These appeals coming for Orders this day, the Court delivered the following:

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JUDGMENT

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While, the applicant before the Commissioner, has filed an appeal for enhancement of compensation, the insurer has filed the other appeal challenging the quantum of compensation granted for the injuries sustained in the course of the employment.

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The facts reveal that on 05.02.2009 Sri

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Vishnu Rathod, the applicant before the Commissioner was driving the goods vehicle bearing registration No. KA-28/A-3163 and in an accident that occurred he

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suffered grievous injuries. There was permanent disablement and therefore, he approached the

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Commissioner for compensation.

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The applicant was examined himself and his

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doctor. In their evidence Ex.A-1 to A-8 were marked. The Commissioner connected the other claim petition and assessing the disability at 35% and wages at Rs.4,000/- per month has awarded the compensation of Rs.1,82,205/with interest at 12%. Seeking enhancement, the applicant has filed the aforesaid MFA No.30478/2012, whereas the insurer has filed MFA No.30593/2012.

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With the consent of both the counsel, the

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matters are taken up for final disposal.

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I have heard learned counsel for both

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parties. The substantial question of law arises for my consideration is:

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Whether the assessment of disability at 35% for the fracture of left femur of 1/3^rd is just and proper?

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On perusal of the documents, particularly Ex.A-5 reveals that the applicant has suffered commuted fracture of left femur. He was examined by the doctor who on assigning reasons has assessed permanent disability at 40% to 45% in the left lower limb. On appreciation of the evidence, the Commissioner has come to the conclusion that there is disability to an extent of 35%. It is relevant to note here that the doctor has not given the functional disability of the whole body. Taking into consideration the reasons that are assigned by the doctor and the fact that there is re-union of the bones, it appears that the doctor has exaggerated the percentage of disability. Taking into consideration the over all facts and circumstances, it is just and

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proper to access the disability at 25%.

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With the disability at 25% and wages of

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Rs.4,000/- per month, the applicant is entitled to Rs.4,000/- x 216.91 x 60/100 x 25% = Rs.1,30,146/-. Therefore, the Commissioner has awarded excessive compensation and it has to be reduced.

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So far as the payment of interest is

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concerned, it is to be from the date of the accident in view of the decision of Apex Court reported in (1976) 1 SCC 289, followed by later judgment of Apex Court reported in 2014(3) SCJ 274 (Saberabibi Yakubhai Shaikh and others Vs. National Insurance Co. Ltd and others). Hence I answer the substantial question of law in the negative and proceed to pass the following:

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ORDER

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The appeal in MFA 30478/2012 is dismissed. MFA 30593/2012 is allowed as part. The impugned judgment and award of the Commissioner is modified. The applicant Vishnu is entitled the compensation of Rs.1,30,146/- with interest at 12% per annum from the

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date of accident i.e., 05.02.2009 till its

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realisation.

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The applicant is permitted to withdraw the amount is deposit and excess if any shall be refunded

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to the insurer.

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Sd/JUDGE

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