Allowed

Shri.Rudragouda S/O Goudappa Marigoudar v. the Managing Director

Karnataka HC4 Aug 2022MFA/100299/2018

Case brief

AI extract

What is this about?

This judgment appeals challenged the quantum of employee compensation where the court found error in disability assessment. It held the insurer pays principal only while the employer pays interest, and increased compensation.

What did the court decide?

Compensation enhanced to Rs. 1,86,001/- with interest; insurer to pay principal, respondent-2 to pay interest.

Shri.Rudragouda S/O Goudappa Marigoudar Vs the Managing… — Property and Title | Karnataka HC (2022)

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 04TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 101678 OF 2017 (WC-)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 100299 OF 2018 IN M.F.A.No.101678/2017

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BETWEEN:

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THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., 1ST FLOOR, APMC YARD, PB NO.24, SAUNDATTI, THROUGH ITS DIVISIONAL OFFICE, DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., RAMDEV GALLI, BELAGAVI, NOW REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, NATIONAL INSURANCE CO. LTD., ARIHANT PLAZA, KESHWAPUR, HUBBALLI-580023.

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…APPELLANT

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(BY SRI. SURESH S GUNDI, ADVOCATE)

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Digitally signed by J MAMATHA J Location: MAMATHA Dharwad Date: 2022.08.11 10:05:19 +0530

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AND:

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SHRI. RUDRAGOUDA GOUDAPPA MARIGOUDAR AGE: 30 YEARS, OCC: EMPLOYEES (NOW NIL), R/O: PATTIHAL, TQ: BAILHONGAL, DIST: BELAGAVI-591102.

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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THE MANAGING DIRECTOR SHREE SOMESHWAR SAHAKARI SAKKARE KARAKHANE, SIDDASAMUDRA (BELAWADI), TQ: BAILHONGAL-591102.

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SHRI.BASAPPA SOMAPPA BALEKUNDARAGI AGE: MAJOR, OCC: CONTRACTOR, R/O: HOOLIKATTI, TQ: BAILHONGAL, DIST: BELAGAVI-591102.

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…RESPONDENTS

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(BY SRI. HANAMANT R LATUR, ADV. FOR R1, SHRI GANGADHAR J.M., ADV. FOR R2, R3 SERVED)

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THIS MFA IS FILED U/S.30(1) OF THE EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:16.01.2017, PASSED IN E.C.A.NO. 15/2014, ON THE FILE OF THE SENIOR CIVIL JUDGE AND COMMISSIONER UNDER EMPLOYEES COMPENSATION ACT, BAILHONGAL, AWARDING THE COMPENSATION OF RS. 1,16,251/-, ALONG WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN M.F.A.No.100299/2018

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BETWEEN

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. SHRI.RUDRAGOUDA S/O GOUDAPPA MARIGOUDAR AGE:31 YEARS, OCC:EMPLOYEE, NOW NIL, R/O:PATTIHAL PIN:591104 TQ:BAILHONGAL DIST:BELAGAVI

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...APPELLANT

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(BY SHRI HANAMANT R.LATUR, ADV.)

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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AND

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1 . THE MANAGING DIRECTOR SHREE SOMESHWAR SAHAKARI SAKKARE KARAKHANE SIDDASAMUDRA (BELAWADI), TQ:BAILHONGAL PIN:591104.

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2 . SHRI BASAPPA S/O SOMAPPA BALEKUNDARAGI AGE:50 YEARS, OCC:CONTRACTOR R/O:HOOLIKATTI PIN:591126 TQ:BAILHONGAL DIST:BELAGAVI

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3 . THE BRANCH MANAGER NATIONAL INSURANCE CO ., LTD 1ST FLOOR, APMC YARD, PB NO-24, SAUNDATTI THROUGH ITS DIVISIONAL OFFICE, DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD RAMADEV GALLI, BELAGAVI PIN:590001 DIST:BELAGAVI

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… RESPONDENTS

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(BY SHRI PRAVEEN TARIKAR AND SHRI GANGADHAR J.M., ADV FOR R1, SHRI SURESH S.GUNDI, ADV. FOR R3, R2 SERVED)

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THIS MFA IS FILED U/S.30(1) OF THE EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:16.01.2017, PASSED IN ECA.NO.15/2014, ON THE FILE

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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OF THE SENIOR CIVIL JUDGE AND COMMISSIONER UNDER EMPLOYEES COMPENSATION ACT, BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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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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Though these matters are listed for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.

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These two appeals are filed by the Insurance Company as well as the injured claimant questioning the quantum of compensation awarded in E.C.A.No.15/2014 dated 16.01.2017 on the file of the Senior Civil Judge and Commissioner for Employees Compensation Act, Bailhongal.

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The factual matrix of the case of the claimant before the Commissioner for Employees Compensation (for short ‘the Commissioner’) is that one Shri Basappa Somappa Balekundaragi (respondent No.2 before the Commissioner) is a Contractor and the claimant was working under him in the factory of Shree Someshwar Sahakari Sakkare Karakhane,

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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Siddasamudra (Belawadi) (respondent No.1 before the Commissioner). The National Insurance Co., Ltd., is the insurer of the of the Contractor. It is his further case that on 12.12.2008 at about 6.30 a.m., in that capacity when the injured/claimant as per the direction of respondent No.2 was removing the bio gas bye-product from the plant, while discharging his duty as labour, his right leg got struck into the machine due to which the claimant suffered fracture injuries to his right leg, CLW over medial side upper 1/3^rd , abrasion middle 1/3^rd leg, abrasion lower 1/3^rd leg bleeding deformity + swelling + crepitus + ROM painful. Immediately he was shifted to Dr.Mahantshetti Hospital, Bailhongal for treatment wherein his right leg was operated by inserting steel rod. He was treated as an in patient for 14 days and spent a sum of Rs.1,00,000/towards medical expenses. It was the claim of the injured before the Commissioner that prior to the accident, he was hale and healthy and earning salary of Rs.100/- per day and Rs.20/as batta and maintaining his family. Due to the accident, the injured/appellant has become physically and permanently

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MFA No. 101678 of 2017 C/W MFA No. 100299 of 2018

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disabled. Hence, the claimant filed claim petition before the Commissioner seeking for compensation.

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In support of his claim, the claimant got examined himself as PW-1 and the doctor as PW-2 and also got marked documents Ex.P.1 to Ex.P.11. On the other hand, respondents examined one witness as RW-1 and got marked documents Ex.R.1 to Ex.R.5. The Commissioner after assessing both oral and documentary evidence allowed the claim petition awarding compensation of Rs.1,16,251/- with interest at the rate of 12% p.a. Being aggrieved by the judgment and award, the claimant and the Insurance Company have filed the present appeals.

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Learned counsel appearing for the Insurance Company contends that the Commissioner has suo moto condoned the delay of 52 days in filing the claim petition and the claim petition is filed after a lapse of 2 years from the date of the alleged incident and that the Commissioner is not justified in coming to the conclusion that the Insurance Company is liable to pay interest as per Section 4-A of the Employees’ Compensation Act (for short ‘the Act’), as against

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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the policy conditions. The Commissioner committed an error in considering 30% disability ignoring the fact that PW2 doctor has not assessed the loss of earning capacity and even though the Contractor has stated that he was paying Rs.90/- per day, the Commissioner committed an error in considering the income of Rs.100/- per day and hence it requires interference.

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Learned counsel for the injured claimant/appellant contends that though the doctor assessed the disability to the extent of 40%, the Commissioner committed error in taking disability only at 30% and also taking income of Rs.3,000/- per month but has not taken into account Rs.20/- batta. The Commissioner has not imposed penalty on the employer because of not paying the compensation immediately after the accident which is against Section 4-A(iii) of the Act. Hence, the judgment and award requires interference.

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Having heard the learned counsel appearing for the parties and also on perusal of the material available on record, the points that arise for consideration of this Court are:

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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i) Whether the Commissioner has committed an error in fastening the liability on the Insurance Company to pay the interest instead of ordering the same against respondent No.3 (Contractor)?

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ii) Whether the Commissioner has committed any error in taking disability to the extent of 30%?

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iii) Whether the Tribunal has committed any error in taking the income of the injured claimant at Rs.100/- per day?

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iv) Whether the Commissioner has committed an error in not awarding just and reasonable compensation as contended by the claimant?

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v) What order?

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Reg:Point Nos.2 to 4:

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On perusal of the records, the fact that the claimant sustained injuries during the course of the employment is not in dispute so also with regard to the fractures sustained by him to his right leg. PW-2, the doctor in his evidence has stated that

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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he assessed the disability at 40% taking into consideration the X-ray and the mal united fracture of tibia and fibula at junction of U-1/3^rd and M-1/3^rd with interlocking nail and screws in situ. The doctor was also subjected to cross-examination and in the cross-examination, he has stated that he conducted the surgery to right leg and also treated him conservatively. Hence, from the cross-examination, it is clear that he was subjected to surgery and interlocking nail and screws in situ. PW-2 in his evidence states that for three times he has taken X-ray of affected limb. He also admits in the cross-examination that he verified earlier document maintained by him and examined the claimant physically. He further admits in Ex.P.9, there is no mention of case sheet and that in disability certificate he has not shown the mathematical calculations and also not drawn the sketch. Hence, from the above material, it is clear that he had sustained the fracture to tibia and fibula and the same is at two junctions one is upper 1/3^rd and middle 1/3^rd with interlocking nail and screws in situ. It is also seen from the evidence of the doctor that both the fractures are mal united and nothing is disputed in the cross-examination of PW-2 with

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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regard to the mal union. Having taken note of two fractures which are mal-united, the doctor has assessed the disability at 40%.

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9. The Hon’ble Apex Court in GOLLA RAJANNA AND

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OTHERS VS. DIVISIONAL MANAGER AND ANOTHER

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reported in 2017 (1) SCC 45 has held in paragraph 10 held that the Commissioner having regard to the evidence had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the Insurance Company that the finding is based on no evidence at all or that it is perverse. Under Section 4 (1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified Medical Practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified Medical Practitioner, as defined under the Act. Hence, held that the Commissioner has passed the order based on the certificate of disability issued by the doctor which has been duly proved before the Commissioner. It is also observed in paragraph 11 that under the Scheme of the Act, the Commissioner is the last authority

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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on facts. The Parliament has though it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. It is also observed that unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.

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Having considered the principles laid down in the judgment referred to supra and also considering the evidence available on record, when the doctor who has treated the injured gives the evidence that the fractures are mal united and interlocking nail and screws in situ and assessed the disability at 40%, the Insurance Company cannot dispute the same as it is purely a question of fact as held by the Hon’ble Apex Court. But, the Commissioner reduced the disability to 30% without assigning any reasons with regard to the earning capacity. The claim before the Commissioner is under the Employees Compensation Act and the injuries sustained by the

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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claimant/appellant are not schedule injuries. Apart from that the Commissioner has taken the income of Rs.1,800/- p.m. i.e., 60% out of Rs.3,000/- while calculating the disability/loss of earning applying the relevant factor of 215.28. When the expert’s evidence is available before the Court i.e., the evidence of the PW-2 who found mal union fracture of fibula and tibia of upper 1/3^rd and middle 1/3^rd , the Court ought not to have reduced the disability to 30% when the doctor has assessed the permanent disability of the injured appellant at 40%. When such being the case, as contended by the learned counsel for the injured appellant the Commissioner has committed an error in taking disability at 30% in spite of the evidence of the doctor who has opined 40% permanent disability, there is a force. Hence, the same requires interference of this Court..

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The other contention of the insurance company is that no application was filed for condonation of delay and the Commissioner has mentioned the same. On perusal of the records, it is seen that an application is filed under Section 5 of the Limitation Act, which is available on page No.28 of the trial

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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Court records and hence it appears that the factual error is committed by the Commissioner in mentioning the same and the same cannot be a ground that petition is not maintainable without making any separate application for condonation of delay.

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The other contention is that income was taken at Rs.100/- per day in spite of Contractor stating that he was earning Rs.90/- per day, but the contractor has not stepped into the witness box to prove that he was paying salary of Rs.90/- only. But the Commissioner has taken the income at Rs.100/- per day and during the year 2008 also as per the statute the income would be Rs.4,000/- and Court has to take note of the statute but the claimant in his evidence categorically says that he was getting Rs.100/- + Rs.20/- as batta and he claims his income as Rs.3,600/- and hence the Tribunal ought to have considered the income as Rs.3,600/and the same is also not done and the Tribunal has only taken income of Rs.3,000/-. Hence, it has to be reassessed by applying relevant factor. Hence, the compensation is reassessed as under:

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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Rs.3,600 x 60% = Rs.2,160 x 215.28 x 40% = Rs.1,86,001/-.

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Reg:Point No.1:

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The other contention of the insurance company is that it is not liable to pay interest portion and the contract is explicit, wherein there is no contract with regard to payment of interest. Hence, counsel brought to note of this Court Ex.R.5, wherein a specific averment is made that insurance company is not extended to include any interest. In support of the said contention, he relied upon the judgment of the Hon’ble Apex Court reported in CDJ 2006 SC 365 in the case of New India

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Assurance Company Limited vs. Harshadbhai Amrutbhai

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Modhiya and Another and this Court also referring to the very same judgement in MFA No.22224/2013 disposed of on 01.06.2017 in a similar facts and circumstances made it clear that insurance company shall liable to pay only to the extent of compensation and interest will have to be paid by respondent No.2 employer, which the claimant shall be entitled to recover by filing execution. In the case on hand also, when Ex.R.5 discloses interest is not included in the insurance and in view of

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MFA No. 101678 of 2017

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C/W MFA No. 100299 of 2018

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the judgement referred supra, insurance company is not liable to pay interest as contended.

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Accordingly, the points are answered and following order is passed:

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ORDER

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Appeals are allowed.

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In modification of the impugned judgment and award passed by the Tribunal, the claimant is entitled for a sum of Rs.1,86,001/with interest at 12% p.a. as against Rs.1,16,250/- awarded by the Commissioner in the impugned judgment and award.

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Insurance company is liable to pay only compensation amount and respondent No.2 in ECA No.15/2014 is directed to pay the interest after one month of accident till deposit.

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Amount in deposit, if any, is ordered to be transferred to the concerned Tribunal forthwith.

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