Dismissed

The Divisional Manager v. Mohammad Shafi S/O. Sheikh Hussein

Karnataka HC20 Aug 2019MFA/20039/2013

Case brief

AI extract

What is this about?

Workmen’s compensation awards for injured drivers, cleaners and loaders were challenged by the insurer on disability assessment and wages. The Court dismissed all appeals, holding that the challenges concerned factual findings and raised no substantial question of law. It directed transmission of the deposited amount to the concerned Tribunal or Commissioner.

What did the court decide?

Transmission of the deposited amount to the concerned Tribunal or Commissioner directed.

The Divisional Manager Vs Mohammad Shafi S/O. Sheikh Hussein — Insurance | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF AUGUST, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MFA No.20040/2013 (WC)

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C/w

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MFA Nos.20041/2013, 20042/2013, 20043/2013 20044/2013, 20039/2013, 20036/2013, 20033/2013, 20034/2013, 20035/2013, 20037/2013 & 20038/2013.

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MFA No.20040/2013

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BETWEEN :

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THE DIVISIONAL MANAGER, M/S. NEW INDIA ASSURANCE CO. LTD., BELLARY. NOW REP. BY ITS ASSISTANT MANAGER, U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD., MTP HUB DIVISIONAL OFFICE, SHRINATH COMPLEX, NCM, HUBLI.

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…APPELLANT

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(BY SRI S.S.KOLIWAD, ADVOCATE)

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AND:

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SHRI SURESH S/O: KARIVEERAPPA AGE: 21 YEARS, OCC: EX-CLEANER, R/O: AMBEDKAR CIRCLE, BELLARY ROAD, HOSPETH, DIST: BELLARY.

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SHRI RAMAPPA S/O: D. TIMMAPPA AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: DAMMUR, TQ & DIST: BELLARY. ...RESPONDENTS (BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.163/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I, BELLARY, AWARDING COMPENSATION OF RS.1,68,369/- WITH INTEREST AT THE RATE OF 12% P.A.

MFA No.20041/2013

BETWEEN :

…APPELLANT

(BY SRI S.S.KOLIWAD, ADVOCATE)

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AND:

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SHRI LALUSAB S/O: SHEIKH SAB AGE: 24 YEARS, OCC: EX-HAMALI, R/O: HANCHAGUDI VILLAGE, TQ: HOSPETH, DIST: BELLARY.

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SHRI RAMAPPA S/O: D. TIMMAPPA AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: DAMMUR, TQ & DIST: BELLARY. ...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.164/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,32,131/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

MFA No.20042/2013

BETWEEN:

…APPELLANT

(BY SRI S.S.KOLIWAD, ADVOCATE)

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AND:

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SHRI KOLLARAPPA S/O: HONNUR SWAMY, AGE: 25 YEARS, OCC: EX-HAMALI, R/O: HANCHAGUDI VILLAGE, TQ: HOSPETH, DIST: BELLARY.

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SHRI RAMAPPA S/O: D. TIMMAPPA AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: DAMMUR, TQ & DIST: BELLARY.

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...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.165/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,40,558/- WITH INTEREST AT THE RATE OF 12% P.A.

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MFA No.20043/2013

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BETWEEN :

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THE DIVISIONAL MANAGER, M/S. NEW INDIA ASSURANCE CO. LTD., BELLARY. NOW REP. BY ITS ASSISTANT MANAGER, U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD.,

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MTP HUB DIVISIONAL OFFICE, SHRINATH COMPLEX, NCM, HUBLI.

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…APPELLANT

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(BY SRI S.S.KOLIWAD, ADVOCATE)

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AND:

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SHRI DADAPEER S/O: MOULASAB, AGE: 24 YEARS, OCC: EX-HAMALI, R/O: HANCHAGUDI VILLAGE, TQ: HOSPETH, DIST: BELLARY.

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SHRI RAMAPPA S/O: D. TIMMAPPA AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: DAMMUR, TQ & DIST: BELLARY. ...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.166/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,32,131/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

MFA No.20044/2013

BETWEEN :

AND:

SHRI LINGAPPA S/O: MARENNA, AGE: 25 YEARS, OCC: EX-HAMALI, R/O: HANCHAGUDI VILLAGE, TQ: HOSPETH, DIST: BELLARY.

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SHRI RAMAPPA S/O: D. TIMMAPPA AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: DAMMUR, TQ & DIST: BELLARY. ...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGEMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.167/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,63,983/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

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MFA No.20039/2013 BETWEEN :

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…APPELLANT

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(BY SRI S.S.KOLIWAD, ADVOCATE)

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AND:

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SHRI MOHAMMAD SHAFI S/O: SHEIKH HUSSEIN, AGE: 45 YEARS, OCC: EX-DRIVER, R/O: KANAVI HALLI,

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TQ: HARAPPANAHALLI, DIST: BELLARY.

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SHRI RAMAPPA S/O: D. TIMMAPPA AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: DAMMUR, TQ & DIST: BELLARY. ...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.162/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,71,350/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

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MFA No.20036/2013 BETWEEN :

…APPELLANT

AND:

SHRI HONNURSWAMY S/O: KATEBASAPPA, AGE: 25 YEARS, OCC: EX-LOADER, R/O: POTHLAKATA VILLAGE, TQ: HOSPETH, DIST: BELLARY.

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SHRI G. BHASKAR S/O: G. ANJANEYALU, AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: KAKAN MAJID, SHIVALING NAGAR, DIST: BELLARY.

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...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 HELD SUFFICIENT)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.154/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,84,524/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

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MFA No.20033/2013 BETWEEN :

…APPELLANT

AND:

SHRI VENKATESHALU S/O: B.P.VANNAPPA, AGE: 35 YEARS, OCC: EX-DRIVER, R/O: TORANAGALLU, TQ: SONDUR, DIST: BELLARY.

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SHRI G. BHASKAR, S/O: G. ANJANEYALU, AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: KAKAN MAJID, SHIVALING NAGAR, DIST: BELLARY.

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...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 HELD SUFFICIENT)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.151/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,95,696/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

MFA No.20034/2013

BETWEEN:

…APPELLANT (BY SRI S.S.KOLIWAD, ADVOCATE) AND: 1. SHRI FIZIL, S/O: ASADULLA, AGE: 35 YEARS, OCC: EX-CLEANER, R/O: M.M.HALLI, TQ: HOSPETH, DIST: BELLARY.

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SHRI G. BHASKAR, S/O: G. ANJANEYALU, AGE: NOT MENTIONED,OCC: NOT MENTIONED, R/O: KAKAN MAJID, SHIVALING NAGAR, DIST: BELLARY. ...RESPONDENTS (BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1; NOTICE TO R2 HELD SUFFICIENT)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.152/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,87,410/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

MFA No.20035/2013

BETWEEN :

…APPELLANT

AND:

SHRI T.PRAKASH S/O: T.HANUMANTAPPA, AGE: 23 YEARS, OCC: EX-LOADER, R/O: POTALAKATTA, TQ: HOSPETH, DIST: BELLARY.

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SHRI G. BHASKAR S/O: G. ANJANEYALU, AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: KAKAN MAJID, SHIVALING NAGAR, DIST: BELLARY.

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...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 SERVED)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.153/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,66,282/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

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MFA No.20037/2013

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BETWEEN : THE DIVISIONAL MANAGER, M/S. NEW INDIA ASSURANCE CO. LTD., BELLARY. NOW REP. BY ITS ASSISTANT MANAGER, U.M.RAIKAR, NEW INDIA ASSURANCE CO. LTD., MTP HUB DIVISIONAL OFFICE, SHRINATH COMPLEX, NCM, HUBLI. (BY SRI S.S.KOLIWAD, ADVOCATE)

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…APPELLANT

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AND:

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SHRI RAMESH S/O RUDRAPPA, AGE: 25 YEARS, OCC: EX-LOADER, R/O: POTHLAKATA VILLAGE, TQ: HOSPETH, DIST: BELLARY.

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SHRI G. BHASKAR S/O: G. ANJANEYALU, AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: KAKAN MAJID, SHIVALING NAGAR, DIST: BELLARY.

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...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 HELD SUFFICIENT)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.155/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,63,983/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

MFA No.20038/2013

BETWEEN :

…APPELLANT

(BY SRI S.S.KOLIWAD, ADVOCATE)

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AND:

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SHRI MALLIKARJUN S/O: AYYANNA, AGE: 24 YEARS, OCC: EX-LOADER, R/O: POTHLAKATA VILLAGE, TQ: HOSPETH, DIST: BELLARY.

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SHRI G. BHASKAR, S/O: G. ANJANEYALU, AGE: NOT MENTIONED, OCC: NOT MENTIONED, R/O: KAKAN MAJID, SHIVALING NAGAR, DIST: BELLARY.

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...RESPONDENTS

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(BY SRI MANJUNATH G.PATIL, ADVOCATE FOR R1 NOTICE TO R2 HELD SUFFICIENT)

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THIS MFA FILED U/S.30 (1) OF W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2012, PASSED IN WC.NF.NO.156/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISON-I BELLARY, AWARDING COMPENSATION OF RS.1,65,163/- WITH INTEREST AT THE RATE OF 12% P.A., FROM SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA Nos.20040, 20041, 20042, 20043, 20044 and 20039 of 2013 are arising out of the award dated 02.11.2012 passed by the learned Labour Officer and Commissioner for Workmen Compensation-I, Bellary, District Bellary (for short ‘Commissioner’) in WCA NF.Nos.162, 163, 164, 165, 166 and 167 of 2009 and MFA Nos.20036, 20033, 20034, 20035, 20037 and 20038 of 2013 are arising out of the award dated 02.11.2012 passed by the learned Labour Officer and Commissioner for Workmen Compensation-I, Bellary, District Bellary (for short ‘Commissioner’) in WCA NF.Nos.151, 152, 153, 154, 155 and 156 of 2009. All these appeals are arising out of common award passed by the Commissioner in two batch of cases.

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These appeals have been filed by the

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Insurer assailing the award passed by the Commissioner in respect of determining the wages as well as assessing the loss of earning capacity of respondent No.1/claimant in all these appeals. Since all the appeals have involved same set of facts, they are taken up together for disposal.

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I have heard the learned counsel appearing for the appellant and also the learned counsel for claimants/respondents.

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For the convenience the ranks of the

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parties before the Commissioner is retained.

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The claimants/respondent No.1 in all the cases have filed the claim petitions under Section 3(10) of Workmen’s Compensation Act, 1923, (for short ‘the Act’) claiming

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compensation. The brief facts of the cases are that;

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On 14.06.2009, at about 2.35 p.m., when the claimant Mohd. Shafi in WCA No.162/2009, being the driver of the vehicle bearing registration No.MED-8085 and claimant in WCA No.151/2009 being the driver of the lorry bearing registration No.AP-A/3875, were driving their vehicles, both the vehicles met with an accident due to the head on collision. The claimant-Fizil in WCA No.152/2009 was the cleaner and claimantRamesh in WCA No.155/2009 was cleaner in the lorry bearing registration No.AP-02/V-3875, whereas claimant-Suresh in WCA No.163/2009, the claimants-Lalusab, Kollarappa, Dadapeer and Lingappa, were hamalis in lorry bearing registration No.MED-8085 and due to accident they sustained injuries during the course of employment under the common employer

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respondent No.1-Ramappa, who is owner of the

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vehicle bearing registration No.MED-8085 when they were proceeding with the loaded goods in order to unload the sugar. These claimants as well as the drivers and cleaners of both the vehicles have sustained injuries and they admitted to the Government Hospital, Itagi, for treatment and thereafter took treatment at private hospital and the recognized orthopedic surgeon assessed the disability and due to the injuries they lost the earning capacity and disabled. Hence they filed claim petitions stated supra.

¶148

In response to the notice, owner of lorry appeared and admitted that the claimants are working under them as hamalis as well as drivers and cleaners. However, they contended that the vehicles are duly insured with the 2^nd respondent Insurance Company. The insurer also appeared and filed statement of objection in all the cases by denying the nature of injuries and the disability

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and also the expenses incurred by the claimants and prayed for dismissing the claim petitions.

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Based upon the rival pleadings, the Commissioner framed the following common

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issues in all the cases:

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CfðzÁgÀgÀÄ 1£ÉÃ ¥ÀæwªÁ¢UÀ¼À ¯ÁjÃAiÀÄ°è 1£ÉÃ CfðzÁgÀ£ÀÄ ZÁ®PÀ£ÁV, 2£ÉÃ CfðzÁgÀ£ÀÄ QèÃ£Àgï DV ªÀÄvÀÄÛ 3 jAzÀ 6 gÀ ªÀgÉV£À CfðzÁgÀgÀÄ ¯ÉÆÃqÀgïì DV PÁAiÉÄÝAiÀÄ°è ªÁåSÁå¤¹zÀAvÉ ‘PÁ«ÄðPÀ’ gÁVzÀÝgÉA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀÄªÀªÀgÉÃ? ºÁVzÀÝ°è 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ §½AiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛzÁÝUÀ, D PÉ®¸ÀzÀ PÁgÀt¢AzÀ C¥ÀWÁvÀ GAmÁ¬ÄvÀÄ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀÄªÀgÉÃ?

¶154

CfðzÁgÀgÀÄ vÀªÀÄUÉ C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è CfðUÀ¼À°è ºÉÃ½gÀÄªÀAvÉ ªÀAiÀÄ¸ÁìVvÀÄÛ ºÁUÀÆ 1£ÉÃ ¥ÀæwªÁ¢UÀ½AzÀ 1£ÉÃ CfðzÁgÀ£ÀÄ wAUÀ½UÉ gÀÆ. 5,500/- UÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß, 2£ÉÃ CfðzÁgÀ£ÀÄ wAUÀ½UÉ gÀÆ. 4500/- UÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß ªÀÄvÀÄÛ 3 jAzÀ 6 gÀ ªÀgÉV£À CfðzÁgÀgÀÄ vÀ¯Á ¢£ÀPÉÌ gÀÆ. 150/- UÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß ¥ÀqÉAiÀÄÄwÛzÀÝ£ÀgÉAzÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀÄªÀgÉÃ?

¶155

F C¥ÀWÁvÀzÀ PÁgÀt¢AzÀ vÀªÀÄUÉ UÁAiÀÄUÀ¼ÁzÀªÉAzÀÄ ºÁUÀÆ vÀªÀÄä zÀÄrªÉÄAiÀÄ ±ÀQÛAiÀÄ £ÀµÀÖzÀ ±ÉÃPÀqÁ ¥ÀæªÀiÁt JµÀÄÖ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀÄªÀgÉÃ?

¶156

¶157

ºÁVzÀÝ ¥ÀPÀëzÀ°è CfðzÁgÀgÀÄ AiÀiÁªÀ jÃwAiÀÄ ¥ÀjºÁgÀ EvÀgÉ G¥À±ÀªÀÄ£ÀUÀ½UÉ CºÀðgÀÄ? CfðzÁgÀgÀÄ ºÁUÉ ¥ÀqÉAiÀÄ®Ä CºÀðgÁzÀ ¥ÀjºÁgÀ ºÁUÀÆ EvÀgÀ G¥À±ÀªÀÄ£ÀUÀ¼À£ÀÄß ¥ÁªÀw¸À®Ä ¥ÀæwªÁ¢UÀ¼ÀÄ AiÀiÁªÀ AiÀiÁªÀ jÃwAiÀÄ°è ¨ÁzsÀågÀÄ:

¶158

F §UÉÎ DzÉÃ±ÀªÉÃ£ÀÄ?

¶159

To substantiate their contention, the

¶160

claimants examined themselves as PWs. 1 to 5 and got marked 26 documents in first batch of cases and got marked 25 documents in another batch of cases. The 1^st respondent-owner did not let in any evidence. However, the 2^nd respondent Insurer examined two witnesses – Sri. A. C. Murthy and Sri. Sandeep B. R. and got marked Ex.R1 – Insurance Policy.

¶161

After considering the evidence on record, the Commissioner allowed the petitions and awarded the compensation after assessing the disability and taking the income, relevant factor for the age of the claimants as under:

¶162

¶163

MFA	Year	ECA No.	Name	Occ	Income taken	Age	RF	Disability taken	Disability assessed by doctor	Award
20033	2013	151/09	Venktesh	Driver	4000	32	203.85	40%	45	1,95,696
20034	2013	152/09	Freezal	Cleaner	3600	25	216.91	40%	45	187410
20035	2013	153/09	T. Prakash	Loader	3600	23	219.95	35	40	166282
20036	2013	154/09	Honnurswami	Loader	3600	27	213.37	40	45	184524
20037	2013	155/09	Ramesh	Loader	3600	25	216.91	35	40	163983
20038	2013	156/09	Mallikarjun	Loader	3600	24	218.47	35	40	16563
20039	2013	162/09	Mohammed Shefi	Driver	3600	47	178.49	40	45	171350
20040	2013	163/09	Suresh	Cleaner	3600	21	222.71	35	40	168369
20041	2013	164/09	Laluprasad	Loader	3600	24	218.47	28	30	132131
20042	2013	165/09	Kolarappa	Loader	3600	25	216.91	30	35	140558
20043	2013	166/09	Dadapeer	Loader	3600	24	218.47	28	30	132131
20044	2013	167/09	Lingappa	Loader	3600	25	216.91	35	40	163983

¶164

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The Commissioner directed the Insurance

¶166

Company to pay the compensation as awarded on 02.11.2012. Assailing the award passed by the Commissioner in all these cases, the Insurer filed these appeals questioning the quantum of compensation and the assessment of the disability by the doctor who was examined by the claimants.

¶167

The counsel for the appellant - Insurer contended that, though the claimants have produced the wound certificates, but Dr.Rajesh, who issued the disability certificates has not at all treated the claimants in the hospital, but he has only assessed the disability and given exorbitant percentage of more than 40% to 48% and 30-35% without any basis. Though the insurer disputed the disabilities, but the Commissioner considered the same relying upon the evidence of the doctor and awarded the compensation taking into consideration the disability certificates produced by the claimants

¶168

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which is not correct. Though the disabilities are shown as 30-40% to the limb, but the doctor has not stated the disability compared to the whole body. Therefore, accepting the evidence of the doctor and awarding the compensation considering the disability stated by the doctor is not correct. Therefore, prayed for reducing the percentage the disability assessed by the Commissioner and reducing the quantum of compensation by allowing the appeals.

¶170

Per contra, learned counsel for the claimants strenuously argued that, there is no substantial question of law involved in these appeals and the reassessing the disabilities and the income of the claimants which was already considered by the Commissioner which amounts to question of fact and no question of law. Therefore, prayed for dismissing the appeals.

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In support of his arguments, the learned counsel for the respondent/claimants relied upon the judgment of the Hon’ble Apex Court reported in 2014 SAR (Civil) 781 in the case of B. Lakshmana Etc. Vs. Divisional Manager, New India Assurance Company Limited Etc. ., whereas the learned counsel for the appellant/Insurer relied upon the judgment of the Division Bench of this Court reported in 2004 ACJ 333 in the case of Shivalinga Shivanagowda Patil and another Vs. Erappa Basappa Bhavihal and the judgment of the High Court of Judicature at Hyderabad reported in 2016 ACJ 314 in the case of United India Insurance Co. Ltd., Vs. S. K. Razak and another. .

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Heard the arguments of the learned counsel for the parties and perused the award passed by the Commissioner.

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On perusal of the records, it shows that the occurring of the accident on 14.06.2009 at

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about 2.30 pm due to the head on collision between both the lorries bearing registration Nos.MED8085 and AP02/V-3875 is not in dispute. It is also not in dispute that all the claimants were traveling in the said lorries as drivers, cleaners and hamalies at the time of accident and due to the accident, they suffered injuries. They have been shifted to the Government hospital at Itagi and were treated as inpatients and they have been examined by Dr.Rajesh and he issued the disability certificates based upon the wound certificates as well as the evidence adduced by the claimants as PWs. 1 to 6 in both the batch of cases. Though the doctor opined that the percentage of disability of the claimants in case Nos. 151, 152, 153, 154, 155 and 156 of 2009 as 45%, 45%, 40%, 45%, 40% and 45% as per the disability certificates at Exs.P11, P14, P17, P20, P22 and P25 respectively, and in case Nos.162, 163, 164, 165, 166 and 167 of 2009 as 45%, 40%, 30%, 35%, 30% and 40% as per the disability certificates

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Exs. P7, P14, P17, P20, P23 and P26 respectively, after assessing the evidence of the claimants as well as the doctor, the Commissioner reduced the disability as per the table supra and by taking the income of the drivers at Rs.4,000/- per month, income of the cleaners and Hamalis at Rs.3,600/per month and by considering the relevant factor as per the age of the claimants, awarded the compensation as supra.

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The Hon’ble Apex Court in the case of B. Lakshmana (supra) at paras 11 and 12 held as under:

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“11. In the instant case, the Workmen’s Compensation Commissioner has already returned a finding of fact with regard to the accident, the injury suffered by the appellants and the extent of loss of earning capacity of the appellants as a result of the accident. The said finding is based on the evidence duly proved before the Commissioner. There is no material irregularity or perversity in the appraisal

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of evidence. There is no case that the evidence was inadmissible. In such circumstances, the appellate court should not have entertained the appeal as there is no substantial question of law.

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12. Under the scheme of the Act, the Workmen’s Compensation Commissioner is the final authority on questions of fact and the first appellate court is the final authority on the question of law. In the instant case, there is no question of law much less a substantial question of law arising for consideration under Section 30 of the Act for the High Court. The High Court has simply ventured to reappreciate the evidence and record a different finding, which is not within its jurisdiction under Section 30 of the Act, in the absence of any material irregularity or perversity.”

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The Hon’ble Apex Court also held, under Section 30 of the Act no appeal shall lie against any order unless substantial question of law is involved in the appeal.

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In another judgment relied upon by the learned counsel for the appellant – Insurer, the High Court of Judicature at Hyderabad (supra) held that the opinion of the doctor about the injuries sustained by the workman and their effect on his earning capacity has a high persuasive evidentiary value and the Commissioner cannot accept every such opinion as gospel. The Commissioner has to carefully examine the nature of the injuries and evaluate the opinion of the doctor. If the opinion of the doctor looks so absurd having regard to the nature of injuries even to a layman, such opinion is liable to be rejected, albeit, by assigning sound reasons. In the said case, the doctor has assessed the disability at 45%, whereas the Commissioner calculated 100% of disability for earning capacity which was reduced to 50% by the High Court. The assessment made by the Commissioner is against the evidence on record, which involved substantial question of law. But here in these appeals, the

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Commissioner assessed the disability less than the disability assessed by the doctor. Therefore, the said judgment will not come to the aid of the Insurer.

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Likewise, in another judgment reported

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in 2004 ACJ 333 in the case of Shivalinga Shivanagowda Patil and another Vs. Erappa Basappa Bhavihala, the full Bench of this Court held as under:

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“ Workmen’s Compensation Act, 1923, section 4 (1) (b) read with section 2 (1) (1)- Permanent total disablement-Compensation-Determination of loss of earning capacity-Whether determination of loss of earning capacity of a workman has to be with reference to ‘all the work’ which he was capable of performing at the time of accident and not with reference to the work which he was performing at that timeHeld: yes; however, in case the workman establishes by acceptable evidence that after the injury not only he is not able to do the work which he was performing before the accident but he is not able to do any other work, the loss of earning capacity could be assessed on the basis of such evidence.

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Workmen’s Compensation Act, 1923, section 4 (1) (c) (ii)- Compensation – Determination of loss of earning capacity- Whether the commissioner can assess loss of earning capacity without the assistance of assessment made by qualified medical practitioner or in disregard of the assessment made by him-Held: no’; but if the assessment made by qualified medical practitioner is disputed by any of the parties, the Commissioner may accept the assessment made by another qualified medical practitioner. Workmen’s Compensation Act, 1923, section 4 (1) (c) (i) read with Schedule I, Part II and section 4 (1) (b)- Compensation-Determination of loss of earning capacity-Workman sustained injury specified in Part II of Schedule I but he adduced independent and acceptable evidence to establish that his injury results in permanent total disablement and not permanent partial disablement-Whether the Commissioner has power to determine the amount of Compensation awardable under section 4(1) (b) treating the injury as permanent total disablement-Held: yes.”

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Even in the said case, this Court held the fact cannot be interfered into by the High Court. Therefore, this judgment also not come to the aid of the insurer.

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Based upon the assessment made by the

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Commissioner, the Insurer preferred the appeals which are wholly based upon the question of fact and no substantial question of law is involved. The

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Hon’ble Apex Court clearly held that, under the Workmen’s Compensation Act, the Commissioner is

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the final authority on question of fact and the first Appellate Court is the final authority on the question of law. There is no question of law, much less a substantial question of law arising for consideration under Section 30 of the Act for the High Court. The High Court cannot simply venture to re-appreciate the evidence on record and record different findings which were not recorded by the

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Commissioner and set aside the judgment of the Commissioner in the said appeal.

¶202

Admittedly, these appeals are challenged by the Insurer only based upon the disability assessed by the Commissioner based upon the evidence of the doctor. Even in the decision relied upon by the Insurer, the Insurer had filed an application for referring the claimants to the some other penal doctor for reassessing of the disability which was rejected by the Workmen’s Compensation Commissioner, which was not challenged by the Insurer. But in the instant cases, except denial suggestion of the evidence of the doctor, nothing has been elicited in the cross-examination to disbelieve the evidence of the doctor. Merely the doctor has not treated the claimants in the first instance, that itself is not a ground to reject his evidence. Even otherwise, the Insurer has not filed any application before the Commissioner for referring the claimants to any other penal doctor for

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reassessment of the disability. The doctor issued the disability certificates based upon the wound certificates. In all the wound certificates also it is clearly mentioned that the claimants have sustained fracture injuries. Based upon the wound certificates and X-ray reports the doctor assessed the disability and given the disability certificates. Even In spite of giving disability certificates by the doctor, the Commissioner by basing upon the evidence reduced the disability of 5% and 2% respectively and also the income is also reduced from the claim made by the claimants.

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Therefore, the award passed by the Commissioner in assessing the disabilities is nothing but question of fact and not the question of law much less no substantial question of law is involved in these appeals so as to interfere with the award passed by the Commissioner.

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in view of the judgment passed by the

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Hon’ble Apex Court in Lakshmana’ case (supra), since there is no substantial question of law is involved the appeals filed by the Insurance Company to admit these appeals. Hence appeals deserve to be dismissed.

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Accordingly the appeals are dismissed. The amount in deposit be transmitted to the concerned Tribunal/Commissioner as the case may be.

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JUDGE

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msr/gab

The Divisional Manager v. Mohammad Shafi S/O. Sheikh Hussein

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The Divisional Manager v. Mohammad Shafi S/O. Sheikh Hussein

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