Partly allowed

M/S. National Insurance Company Limited v. Sri Suhail @ Feer Pasha

Karnataka HC15 Jun 2021MFA/5005/2010

Case brief

AI extract

What is this about?

In two mutual filed appeals, the High Court revised compensation awarded for injuries sustained by an auto driver. The Court reduced the disability percentage from 50% to 25% and correspondingly lowered the compensation amount from Rs.2,44,620/- to Rs.1,22,310/-, partially allowing the insurer's appeal.

What did the court decide?

The impugned award is modified granting compensation of Rs.1,22,310/- with interest at 12% per annum instead of the earlier award of Rs.2,44,620/-.

M/S. National Insurance Company Limited Vs… — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.4124/2010 (WC) C/W. M.F.A.NO.5005/2010 (WC)

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IN MFA NO.4124/2010 (WC):

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BETWEEN:

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SUHAIL @ PEER PASHA S/O CHOTASAB @ MAHBOOB SHARIF AGED ABOUT 29 YEARS OCC-NIL, (DRIVER-AUTO) RES. 6^TH CROSS, MYSORE ROAD, BYATARAYANAPURA BENGALURU.

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… APPELLANT

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(BY MS. M.C.UMADEVAMMA, ADVOCATE)

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AND:

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1 . ALLABAKASH S/O SHOORULLAKHAN AGE:MAJOR, NO-1283, 6^TH CROSS, GANGONDANAHALLI BENGALURU.

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2 . THE MANAGER NATIONAL INSURANCE CO. LTD., LINGARAJU COMPLEX, BASAVANGUDI

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GANDIBAZAR MAIN ROAD, BENGALURU-560011

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… RESPONDENTS

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(BY SRI A.M.VENKATESH, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 08.12.2009 PASSED IN WCA/NFC/CR-20/2006 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUBDIVISION-2, BENGALURU, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.5005/2010 (WC):

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BETWEEN:

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M/S. NATIONAL INSURANCE COMPANY LIMITED BRANCH OFFICE, LINGARAJU COMPLEX, BASAVANAGUDI, GANDHI BAZAAR MAIN ROAD, BENGALURU, NOW REP. BY ITS REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX, M.G. ROAD, BENGALURU-560 001. REP. BY ITS ADMINISTRATIVE OFFICER

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… APPELLANT

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(BY SRI A.M.VENKATESH, ADVOCATE)

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AND:

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SUHAIL @ FEER PASHA S/O CHOTA SAAB @ MAHBOOB SHARIEF AGED ABOUT 25 YEARS R/O. 6^TH CROSS, MYSORE ROAD, BYATARAYANAPURA BENGALURU.

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2 . SRI ALLABAKSH S/O SHOORULLA KHAN NO-1283, 6^TH CROSS, GANGONDANAHALLI BENGALURU.

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… RESPONDENTS

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(R1 AND R2 ARE SERVED)

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THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 08.12.2009 PASSED IN WCA/NFC/C.NO.20/2006 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUBDIVISION-2, BENGALURU, AWARDING A COMPENSATION OF Rs.2,44,620/- WITH INTEREST @12% P.A.

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THESE MFAs’ COMING ON FOR HEARING THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These two appeals are filed by the claimant and also the Insurance Company challenging the judgment and award passed by the Commissioner for Workmen’s Compensation and Labour Officer DO-2, Bannerghatta Road, Bengaluru in No.WCA/B2/NFC/CR-20/2006 dated 08.12.2009.

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The factual matrix of the case is that the claimant

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was the driver of the auto rickshaw belonging to the first respondent and he met with an accident on 10.07.2006 at 11.00

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p.m. and sustained injuries and filed the claim petition before the Court seeking compensation.

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The claimant, in order substantiate his claim,

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examined himself as P.W.1 and got marked the documents as Exs.P1 to P8 and examined the Doctor as P.W.2 and got marked the documents as Ex.P2-1 to Ex.P2-3.

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Learned counsel for the second respondentInsurance Company would contend that the claimant was not having the driving license and also he took the vehicle for hire and he was not an employee of the first respondent. The counsel also would vehemently contend that the Tribunal has committed an error in taking the disability at 50% and the Doctor, who has been examined before the Commissioner has specifically deposed that there is disability of 50% to the particular limb. Under the circumstances, the Insurance Company is not liable to pay any compensation.

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Per contra, learned counsel appearing for the

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appellant in M.F.A.No.4124/2010 would vehemently contend that

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the Tribunal has taken note of the evidence of P.W.2, the Doctor and it is not in dispute that he was working as a Driver and has suffered type-II compound fracture both bones of left leg with ipsilateral medial malleolar fracture undisplaced fracture and the fracture was stabilized with external factors. The Doctor has also deposed that there was a malunion and hence, the Commissioner has rightly taken the disability at 50%, since he could not continue the work as driver on account of the injury sustained by him. Hence, it does not require any interference of this Court.

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Having heard the arguments of respective counsel and also on perusal of the material available before the Court,

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the points that would arise for consideration of this Court are:

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(i) Whether the Commissioner was justified in assessing 50% disability to a particular limb of the claimant?

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(ii) Whether the Commissioner has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?

(iii) What order?

Point No.(i)

Having heard the learned counsel for both the parties and also on perusal of the records, though the counsel appearing for the second respondent-Insurance Company would vehemently contend that there is an admission in the crossexamination of P.W.1 that he took the vehicle for hire purpose and he was not an employee of the first respondent, however, on perusal of the entire evidence, no such admission is elicited. No doubt, in the cross-examination, suggestions are made to P.W.1 and the said suggestions are specifically denied. However, counsel would vehemently contend in the documents at Exs.P1 and P2, the owner of the vehicle has alleged that he had given the vehicle for hire and he is not an employee and in order to prove the said fact, though the learned counsel appearing for the second respondent-Insurance Company relies upon Exs.P1 and P2, the same has not been proved by examining the witnesses. Under the circumstances, the

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contention of the Insurance Company cannot be accepted. Hence, I answer point No.(i) as ‘partly affirmative’

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Point No.(ii)

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Having considered the material available on record with regard to the nature of injury sustained by the claimant, it is not in dispute that the Doctor, who has been examined before the Commissioner in his evidence has deposed disability to the particular limb at 50%, no doubt, in the affidavit has mentioned with regard to the malunion of the fracture. Having considered the said fact into consideration, no material is placed before the Court to come to a conclusion that he has suffered the disability to an extent of 50% to the particular limb. Considering the injuries sustained by the claimant i.e., tibia and fibula and also malunion, the disability assessed by the Commissioner to an extent of 50% is erroneous. As already pointed out, there was a malunion of the fracture and the Court can take the disability at 25% as against 50%. Hence, the Commissioner has committed an error in taking the disability at 50% and it requires interference of this Court.

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There is no dispute with regard to the income taken by the Commissioner. However, the compensation has to be reassessed taking into consideration the disability at 25% and after having considered the material on record, his income and relevant factors, the compensation comes to Rs.1,22,310/(4,000x60/100=2,400x203.85x25/100). Hence, the impugned judgment and award passed by the Commissioner requires to be interfered with. Hence, I answer point No.(ii) as ‘negative’.

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Point No.(iii)

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In view of the discussions made above, I proceed to pass the following:

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ORDER

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(i) The appeal filed by the claimant in M.F.A.No.4124/2010 is dismissed. The appeal filed by the Insurance Company in M.F.A.No.5005/2020 is partly allowed.

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(ii) The judgment and award passed by the Commissioner for Workmen’s Compensation and Labour Officer DO-2, Bannerghatta Road, Bengaluru in No.WCA/B2/NFC/CR-20/2006 dated 08.12.2009 is modified granting compensation of Rs.1,22,310/- as

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against Rs.2,44,620/- with interest at 12% per annum.

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(iii) The excess amount, if any deposited by the Insurance Company is ordered to be refunded to the Insurance Company.

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Sd/JUDGE

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M/S. National Insurance Company Limited v. Sri Suhail @ Feer Pasha

Case brief

What is this about?

What did the court decide?

M/S. National Insurance Company Limited v. Sri Suhail @ Feer Pasha

Case brief

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What did the court decide?

What the court decided

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