Partly allowed

M/S.National Insurance Company Limited v. Sri S Lokesh S/O Sher Bahaddur

Karnataka HC25 Nov 2020MFA/7314/2010

Case brief

AI extract

What is this about?

This First Appeal challenged a Workmen's Compensation award of Rs. 1,56,175. The High Court found that contradicted medical records rendered the claim for permanent disability unproven. The court held injuries were simple, allowing only 30% of monthly wages.

What did the court decide?

Compensattion is modified to Rs. 1,000/-. Interest and remaining award are maintained.

M/S.National Insurance Company Limited Vs Sri S Lokesh S/O Sher Bahaddur — Karnataka HC (2020) — LawSathi Research

¶1

M.F.A.NO.7314/2010

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 25^TH DAY OF NOVEMBER 2020

¶5

BEFORE

¶6

THE HON’BLE MRS JUSTICE K.S.MUDAGAL

¶7

MISCELLANEOUS FIRST APPEAL NO.7314/2010(WC)

¶8

BETWEEN:

¶9

M/S. NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, DAVANAGERE, NOW REP. BY ITS REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX M.G. ROAD, BANGALORE – 560 001. REP. BY ITS ADMINISTRATIVE OFFICER … APPELLANT

¶10

(BY SRI.B.C.SHIVANNE GOWDA, ADVOCATE FOR SRI.A.M.VENKATESH, ADVOCATE)

¶11

AND:

¶12

SRI.S.LOKESH S/O SHER BAHADDUR AGED ABOUT 28 YEARS R/O. ANJANEYA LAYOUT DAVANAGERE

¶13

SRI.LOKESHAPPA S/O CHENNABASAPPA OWNER OF GOODS AUTO BEARING NO.KA-16/8202 R/O. DAVERAHOSAHALLI HOLALKERE TALUK … RESPONDENTS

¶14

(BY SRI B.M.SIDDAPPA, ADVOCATE FOR C/R1; NOTICE TO R2 IS HELD SUFFICIENT V/O DTD: 09.11.2012)

¶15

M.F.A.NO.7314/2010

¶16

¶17

THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 21.04.2010 PASSED IN WCA/KAANAPA/CR-277/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, DAVANGERE DISTRICT, DAVANGERE, AWARDING A COMPENSATION OF RS.1,56,175/-.

¶18

THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

¶19

J U D G M E N T

¶20

This appeal arises out of the award dated 21.04.2010 in WCA/KAANAPA/CR-277/2007 passed by the Commissioner for Workmen’s Compensation, Davanagere (‘the Commissioner’ for short). By the impugned award the Commissioner has awarded compensation of Rs.1,56,175/- to the first respondent payable by the petitioner.

¶21

Respondent No.1 was the claimant, respondent No.2 was respondent No.1 and the appellant was respondent No.2 in the proceedings before the Commissioner. For the purpose of convenience, the parties will be referred to henceforth with their ranks in the proceedings before the Commissioner.

¶22

M.F.A.NO.7314/2010

¶23

¶24

On 03.12.2006 at about 10.30 a.m. an

¶25

accident took place between luggage auto bearing No.KA-16 8202 and autorickshaw bearing No.KA-16 2536. Respondent No.1 was the registered owner and respondent No.2 was the insurer of goods auto No.KA-16/8202. Regarding the said incident on the basis of the complaint of one Sarojamma, Holalkere Police registered FIR in Crime No.294/2006 as per Ex.P5. On investigation, Police charge sheeted the claimant for the offences punishable under Sections 279 and 338 of IPC alleging that he drove the auto bearing No.KA-16 8202 in rash and negligent manner and caused the accident.

¶26

The claimant filed petition under Section 22 of the Workmen’s Compensation Act, 1923 before the Commissioner claiming that at the time of accident he was working under respondent No.1 as driver and accident arose out of and in the course of employment. He further claimed that he suffered permanent physical disability due to the injuries suffered in the accident, he

¶27

M.F.A.NO.7314/2010

¶28

¶29

was earning Rs.4,000/- per month as wages and Rs.100/- per day as Batta. He claimed compensation of Rs.5,00,000/- from the respondents.

¶30

Respondent No.1-owner filed his written statement admitting the jural relationship, occurrence of the accident etc. However he claimed that the vehicle was insured with respondent No.2, therefore, respondent No.2 was liable to indemnify liability, if any.

¶31

Respondent No.2 contested the claim petition denying the jural relationship, occurrence of the accident, the injuries allegedly suffered by the claimant disability and its liability.

¶32

The claimant got himself examined as PW.1

¶33

and the doctor who issued disability certificate as PW.2 and the doctor who issued the wound certificate Ex.P1 and MLC extract under Ex.P8 as PW.3. On behalf of the second respondent its administrative Officer was examined as RW.1. The letter issued by PW.3 to the Investigating Officer of second respondent and the

¶34

M.F.A.NO.7314/2010

¶35

¶36

Insurance policy were marked as R2-1 and R2-2 respectively.

¶37

The Commissioner after hearing the parties by the impugned award held that the accident occurred during the course of employment and arose out of the employment. The Commissioner further held that in the accident the claimant has suffered 30% loss of earning capacity and awarded compensation of Rs.1,56,175/payable by the second respondent/Insurer. Aggrieved by the said award, the second respondent/Insurer preferred the above appeal.

¶38

This Court admitted the appeal to hear on the following substantial question of law:

¶39

“Whether the Commissioner for Workmen’s Compensation has committed a serious illegality by ignoring the material evidence available on record in regard to the very treatment availed by the claimant in the hospital, i.e., Primary Health Centre, Chikkajajur ?”

¶40

M.F.A.NO.7314/2010

¶41

¶42

Learned counsel for the appellant assails the award of the Commissioner on the following grounds:

¶43

i) Though the accident occurred on 03.12.2006 till 07.12.2006 the claimant had not gone to any hospital.

¶44

ii) Ex.P1 is issued on 02.01.2007 stating that the claimant was treated in the hospital on 07.12.2006.

¶45

iii) The very same doctor PW.3 issued Ex.R2-1 to the Insurance Company on 03.09.2009 stating that there are no records to show that claimant Lokesh, S/o Sher Bahaddur was treated in the Primary Health Centre, Chikkajajur and there is no such entry in the Medico Legal Case register of the said hospital. Therefore, it is clear that the claim petition and all medical records produced to secure the claim were fraudulent one.

¶46

iv) PW.3 himself admitted that he has issued both the documents Ex.P8 and R.2–1 and he failed to give explanation for such contradiction. But the Commissioner did not answer the contention of the second respondent regarding production of fraudulent medical records to support the claim of disability.

¶47

M.F.A.NO.7314/2010

¶48

¶49

Per contra, Sri B.M.Siddappa, learned

¶50

counsel for the claimant seeks to justify the award of the Commissioner on the following grounds:

¶51

i) There is no bar under the Workmen's Compensation Act for the medical practitioner examining and issuing the disability certificate.

¶52

ii) The claim of permanent disability was substantiated by the evidence of PWs.2 and 3 the doctors;

¶53

iii) There was no dispute about the occurrence of the accident;

¶54

The claimant claimed that he suffered

¶55

fractures of ankle, 2 ribs and right knee etc in the accident. He further claimed that initially he took treatment with the local doctor and then he was shifted to major private hospital in Chitradurga where X-rays were taken and he was treated for the fractures. The claimant did not state that from 03.12.2006 to 07.12.2006 from which local doctor he had taken treatment.

¶56

M.F.A.NO.7314/2010

¶57

¶58

Claimant claims to have visited Primary Health Centre for the first time on 07.12.2006 where he was allegedly treated by the doctor who was present in the Primary Health Centre and noted about the fractures suffered by him in MLC register as per Ex.P8.

¶59

Neither the author of Ex.P8 was examined nor the original MLC register was summoned. Ex.P8 was purportedly issued by Dr.Kiran Kumar. The very same witness admittedly issued Ex.R.2-1 where he states that there is no entry in the MLC register about the claimant taking any treatment. He has even certified the said fact. That itself goes to show that Ex.P8 was concocted.

¶60

The other evidence adduced to prove the injuries and disability was that of PW.3 Dr.Nagabhushan. He claims to have examined the claimant on 11.07.2008 i.e., two years after the accident. In the affidavit evidence he stated that the claimant was treated in PHC for the injuries suffered in the accident and thereafter he was under his treatment.

¶61

M.F.A.NO.7314/2010

¶62

¶63

No record was produced to show that claimant was treated under him, though his evidence in that regard was seriously challenged by the second respondent. PW3 claims that on 11.07.2008, he took the X-ray of the claimant and he found that the claimant had suffered fracture of left bio-malleolit bone, mal united fracture of 5^th and 6^th rib of left rib cage and thus he has suffered 35% permanent physical disability.

¶64

When there were no basic documents with

¶65

regard to the claimant taking treatment in Primary Health Centre and record in the MLC register about the injury suffered by the claimant, it goes hard to accept that the alleged fractures found by PW.2 were connected to the alleged accident. Neither in the FIR nor in the charge sheet produced by the claimant, it was stated that he had suffered grievous injuries.

¶66

Despite such material contradictions in evidence and proof of manipulation of documents, the Commissioner without any discussion on those documents and the admissions of PWs.1 to 3 in their

¶67

M.F.A.NO.7314/2010

¶68

¶69

deposition jumps to the conclusion that the claimant suffered 30% loss of earning capacity. Commissioner says that, since the doctor said that the claimant has suffered 35% physical disability, he decides that the claimant has suffered 30% loss of earning capacity. The Commissioner committed serious illegality in ignoring the material evidence available on record regarding the alleged treatment of the claimant in the Primary Health Centre, Chikkajajur. The substantial question of law is answered accordingly.

¶70

Then the next question is what should have been the compensation payable to the claimant. As already pointed out the occurrence of the accident and the claimant being the driver of the offending vehicle was admitted. Therefore, the evidence of claimant that he had suffered some injuries in the accident cannot be rejected. He has failed to establish that he has suffered grievous injuries leading to permanent physical disability. It has to be taken that he has suffered simple injuries.

¶71

M.F.A.NO.7314/2010

¶72

¶73

In such event, he is entitled to the compensation as per Section 4(1)(d) of the Workmen’s Compensation Act, 1923 i.e., sum equivalent to 30% of monthly wages in case of simple injuries. According to the claimant himself, he was earning Rs.4,000/- per month as wages. Therefore, the claimant is entitled to compensation of Rs.1,000/-. Accordingly, the appeal is partly allowed.

¶74

The impugned award passed by the Commissioner is modified granting compensation of Rs.1,000/- to the claimant. Rest of the award regarding interest is maintained.

¶75

The amount in deposit, if any shall be transmitted to the jurisdictional Workmen’s Compensation Commissioner/ Civil Judge, Davanagere.

¶76

The Commissioner shall disburse the amount awarded to the claimant. The remaining amount shall be refunded to the Insurer.

¶77

Sd/JUDGE

¶78

akc

M/S.National Insurance Company Limited v. Sri S Lokesh S/O Sher Bahaddur

Case brief

What is this about?

What did the court decide?

M/S.National Insurance Company Limited v. Sri S Lokesh S/O Sher Bahaddur

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri T Kumar Vs Sri K Chennakeshavulu

Hanumanthegowda Vs State of Karnataka

The Manager Vs Puttarangamma @ Rangamma

The Oriental Insurance Co. Ltd. Vs Mohd Nazeer S/O Mohd Sab

Harish Ramakrishna Naik Vs Sri. Rajashekhar H.B.

Bajaj Allianz General Insurance Company Ltd. Vs P S Manjunath