Partly allowed

The Divisional Manager v. Shri. Shafi S/O Ibrahim Sab

Karnataka HC14 Jul 2022MFA/22420/2010

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed the insurance company's appeal against an award granting compensation to a hamali injured during employment. The claimant's appeal was allowed in part to modify the interest calculation, ensuring it runs from the date of the accident with 12% per annum, rather than from the award date.

What did the court decide?

Insurance appeal dismissed; claimant's appeal allowed in part to modify interest period from date of accident; amount to be deposited with Civil Court.

The Divisional Manager Vs Shri. Shafi S/O Ibrahim Sab — Karnataka HC (2022) — LawSathi Research

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14TH DAY OF JULY, 2022

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BEFORE THE HON'BLE MR JUSTICE P.KRISHNA BHAT

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MISC. FIRST APPEAL NO. 22420 OF 2010 (WC)

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C/W

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MISC. FIRST APPEAL NO. 22807 OF 2010 (WC)

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IN MFA NO.22420/2010

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BETWEEN:

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. HOSPETH. NOW REP. BY ITS DIVISIONAL MANAGER R.BHASKAR, UNITED INIDA INSURANCE CO.LTD., DIVISIONAL OFFICE, YELAMANCHALI COMPLEX, STATION ROAD, HOSPETH.

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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. SHAFI S/O IBRAHIM SAB AGE: 35 YEARS, OCC: EX-HAMAL, R/O HULAGI VILLAGE TAL/DIST. KOPPAL.

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Digitally signed by SUJATA SUBHASH PAMMAR Location: HIGH COURT OF KARNATAKA, DHARWAD

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SHRI. K.M. MARULSIDDAYYA S/O BASAYYA AGE: MAJOR, OCC: OWNER OF TT UNIT NO. KA-35T-2970 and 2969R/O NEAR KALESHWAR TEMPLE HOSPETH, DIST. BELLARY.

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…RESPONDENTS

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(BY SMT. SOUBHAGYA S. VAKKUND, ADVOCATE FOR

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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SRI Y. LAKSHMIKANT REDDY, ADVOCATE FOR R1, R2 SERVED)

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MFA FILED U/S.30(1) OF WORKMEN'S COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND ORDER DATED:2304-2010 PASSED IN WCA.NO.43/2005, ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER FOR WORKMEN'S COMPENSATION, KOPPAL DISTRICT, KOPPAL, AWARDING THE COMPENSATION OF RS.1,31,027/- WITH INTEREST AT THE RATE OF 12% P.A., FROM THE DATE OF ORDER TILL ITS DEPOSIT.

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IN MFA NO.22807/2010

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BETWEEN:

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SRI M SHAFI S/O LATE IBRAIM SAB AGE: 35 YEARS, OCC: EX-HAMALI, R/O: HULIGI VILLAGE, TQ and DIST: KOPPAL.

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…APPELLANT

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(BY SRI. MANJUNATHA G. PATIL, ADVOCATE)

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AND:

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SRI K. M. MARULASIDDAIAH S/O LATE BASAIAH AGE: MAJOR, OWNER OF THE TRACTOR- TRAILAR, REG. NO. KA-35-T-2970 AND 2969, R/O: NEAR KALESWARA TEMPLE, HOSPET, BELLARY DIST.

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THE MANAGER

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M/S. UNITED INDIA INSURANCE CO. LTD., HOSPET BRANCH, BELLARY DIST.

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…RESPONDENTS (BY SRI S. S. KOLIWAD, ADVOCATE FOR R2, R1 SERVED)

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MFA FILED U/SEC.30(1) OF WC ACT, AGAINST THE JUDGMENT AND ORDER DATED: 23-04-2010 PASSED IN WCA.NO.43/2005 ON THE FILE OF THE LABOUR OFFICER AND

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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COMMISSIOENR FOR WORKMEN'S COMPENSATION, KOPPAL DISTRICT KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCMENT OF COMPENSATION.

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

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JUDGMENT

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These appeals are at the instance of the Insurance Company and the claimant calling in question the legality and validity of the award dated 23.04.2010 in WCA No.43/2005 by the learned Labour Officer and Commissioner for Workmen’s Compensation, Koppal (for short ‘the Commissioner’) .

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2. The claim petition proceeded on the allegation that the claimant Shafi was working as a Coolie (Hamali) in Tractor-Trailer bearing registration No.KA-35/T/2970 and 2969 belonging to respondent No.1-K.M. Marulasiddayya and insured with the appellant-Insurance Company. On 17.02.2004 at about 4.00 p.m., when the claimant was proceeding in the said Tractor-Trailer as

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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Hamali as per the instructions of insured-owner, on account of rash and negligent driving of the said TractorTrailer near Kasanakandi Sima, the vehicle capsized, on account of the same, the clamant suffered fracture of the femur bone etc.

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3. Both the respondents entered appearance

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through their respective counsel before the learned Commissioner and resisted the claim petition by filing their separate statement of objections. The insured-owner in his statement of objections denied the employer and employee relationship and claimant suffering injury in the course of employment. Insurance Company in its statement of objections denied the material averments in made the claim petition.

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4. During enquiry, the claimant examined himself

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as PW1 and examined Co-workers as PW2 and PW3 and qualified Medical Practitioner as PW4. Exs.P1 to Ex.P13

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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were marked. Insurance Company examined one of its officials as RW1and Policy of Insurance was also marked.

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5. After hearing the learned counsel on both sides and perusing the records, the learned Commissioner allowed the claim petition in part awarding a compensation of Rs.1,31,027/- with interest at the rate of 12% per annum with effect from one month from the date of the award.

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6. Learned counsel for the appellant-Insurance Company contended before me that finding of the learned Commissioner that there was employer-employee relationship is based on no evidence and he submitted that the claimant was a fare-paying passenger on the TractorTrailer. He further submitted that the learned Commissioner has assessed loss of earning capacity at higher percentage and therefore, the award passed is liable to be set aside.

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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7. Learned counsel appearing for the claimant contended that the learned Commissioner has recorded finding of employer and employee relationship between the owner of the offending vehicle and the claimant by relying on the evidence placed before him and therefore, the same cannot be set aside. She further submitted that based on the evidence placed before learned Commissioner higher compensation ought to have been awarded having regard to the extent of physical disability suffered by the claimant. She also submitted that the interest awarded is also not in accordance with the mandate of Employees’ Compensation Act, 1923. Accordingly, the appeal is entitled to be allowed.

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8. I have given my anxious consideration to the submissions made on both sides and I have perused the records.

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9. The case of the claimant is that he was working as a Hamali in the Tractor-Trailer bearing registration

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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No.KA-35/T/2970 and 2969 and while he was proceeding on the same on 17.02.2004 at about 4.00 p.m., as per the instruction of the insured-owner, the vehicle met with an accident and he suffered serious injuries. It is no doubt true that owner-insured had filed statement of objections to the effect that the claimant was not working as a coolie under him. However, the claimant has not only examined himself in support of his case but he has also examined two other witnesses as PW2 and PW3 who were working as coolie with him on the same Tractor-Trailer who have supported the case of the claimant before the learned Commissioner. Further, the claimant has also produced FIR and complaint as per ExP1 and there is clear mention in the complaint before police which was lodged on the same day of the accident i.e. 17.02.2004 that the claimant was proceeding on Tractor-Trailer as a coolie in the same. After entire appreciation of the evidence, the learned Commissioner has recorded a finding that the employer

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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and employee relationship is proved in this case and since the same is supported by evidence, I am not inclined to interfere with the same.

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10. The claimant has examined himself as PW1 and also examined a qualified Medical Practitioner as PW4-Dr. Vishwaprasad, who is an Orthopedic Surgeon. After appreciating the evidence placed before him, learned Commissioner has come to a conclusion that the claimant has suffered fracture of right femur bone which had mal-united and there was loss in the earning capacity to the extent of 35%. The said finding is based on evidence placed on record and therefore I affirm the said finding. In view of the same, I do not find any illegality in the award of compensation by the learned Commissioner.

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11. Further in view of the specific provision in the Employees’ ompensation Act, 1923, the learned Commissioner ought to have awarded interest on the award amount at the rate of 12% per annum with effect

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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from one month form the date of the accident. Since the same has not been done by the learned Commissioner, award is required to be modified. Accordingly, award amount shall carry interest at the rate of 12% per annum with effect from one month from the date of accident till the date of deposit.

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12. I do not find any good ground to make any enhancement in the award made by the learned Commissioner having regard to the evidence available on record. Accordingly, the case of the claimant to the said extent is rejected.

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13. In the result, appeal filed by the Insurance Company is dismissed. Appeal filed by the claimant is allowed in part in terms as above.

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14. The amount in deposit shall be transmitted to the Court of jurisdictional leaned Senior Civil Judge along with records. The differential amount shall be deposited

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10 -

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MFA No. 22420 of 2010 C/W MFA No. 22807 of 2010

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before the learned Court below within six weeks from today.

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Sd/JUDGE

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SSP

The Divisional Manager v. Shri. Shafi S/O Ibrahim Sab

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Shri. Shafi S/O Ibrahim Sab

Case brief

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What did the court decide?

What the court decided

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