Partly allowed

The Divisional Manager v. Venkateshan Karanan

Karnataka HC4 Jul 2023MFA/5500/2012

Case brief

AI extract

What is this about?

Appeal against compensation award under the Workmen's Compensation Act. Court upheld employment relationship despite hospital record stating 'coolie'. Adjusted disability percentage from 47% to 16% based on doctor's evidence and recalculated compensation to Rs.72,791.

What did the court decide?

Insurance appellant's appeal partly allowed; compensation re-assessed at Rs.72,791; claimant's appeal for enhancement dismissed.

The Divisional Manager Vs Venkateshan Karanan — Service and Employment | Karnataka HC (2023)

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.5500 OF 2012 C/W MISCELLANEOUS FIRST APPEAL NO.5117 OF 2014 (WC)

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IN MFA No.5500/2012

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BETWEEN:

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED., NO.89/1, II FLOOR, II CROSS, SAMPIGE ROAD, MALLESWARAM, BANGALORE – 560 003. BY REGIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., KRISHI BHAVAN, 5^TH & 6^TH FLOOR, NRUPATHUNGA ROAD, HUDSON CIRCLE, BANGALORE -560 001, BY IT’S MANAGER. …APPELLANT

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(BY SRI. O. MAHESH, ADVOCATE THROUGH VIDEO CONFERENCE)

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AND:

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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VENKATESH KARANAN @ KANNAN, MAJOR, S/O. LATE DHARMAN, NO.282, TAXI GARDEN, DR. T. C. M. ROYAN ROAD, NEAR MURUGAN TEMPLE, BANGALORE – 560 021.

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ROSHAN SAMEER, MAJOR, NO.40/1, “B” STREET, GOPALAPURA, MAGADI ROAD, BANGALORE – 560 023.

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…RESPONDENTS

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(BY SRI. SURESH M. LATUR ADVOCATE FOR R1; V/O DATED 14.08.13, SERVICE H/S IN R/O R2)

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THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 21.2.2012 PASSED IN WCA/ FC/ CR. NO. 17/2011 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUBDIVISION-6, BANGALORE, AWARDING A COMPENSATION OF RS.2,10,823/- WITH INTEREST AT 12% P.A.

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IN MFA NO.5117/2014

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BETWEEN:

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SRI. VENKATESH KARNAN @ KANNAN, S/O. SRI. LATE DHARMAN, NO.282, TAXI GARDEN, DR.TCM ROYAN ROAD, NEAR MURUGAN TEMPLE ROAD, BANGALORE - 560 033.

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…APPELLANT

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(BY SRI. SURESH M. LATUR, ADVOCATE)

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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AND:

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SRI. ROSHAN SAMEER NO.40/1, ‘B’ STREET, GOPALAPURA, MAGADI ROAD, BANGALORE - 560 023

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THE DIVISIONAL MANAGER THE UNITED INDIA INSURANCE CO.LTD NO.89/1, 2^ND FLOOR, 11^TH CROSS, SAMPIGE ROAD, MALLESHWARAM, BENGALURU – 560 003

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…RESPONDENTS

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(BY SRI. JANARADHAN REDDY ADVOCATE FOR R2; R1- NOTICE D/W V/O DATED 14.02.2018)

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THIS MFA FILED U/S 30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED21.2.2012 PASSED IN WCA/FC/CR-17/2011 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-6, BANGALORE-29, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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MFA.No.5500/2012 is filed by the Insurance

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Company challenging the judgment and award dated 21.02.2012 passed in WCA/FC/CR.No.17/2011 by the

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Labour Officer and Commissioner for Workmen’s

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4 - NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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Compensation, Sub-division-6, Bangalore, that the claimant was not driver and there is no employer and employee relationship. Further alternatively the quantum of compensation awarded by the learned Commissioner is on the higher side and also higher percentage of disability is held by the learned Commissioner.

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MFA.No.5117/2014 is filed by the claimant challenging the aforesaid judgment and award for seeking enhancement of compensation.

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The factum of accident is not in dispute.

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Heard the arguments from both sides and

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perused the records.

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Learned counsel for the Insurance

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Company submitted that the claimant is a coolie by profession as it is reflected in the case sheet of the Victoria Hospital. Therefore, the claimant was not working as a driver under the employment of respondent No.1-owner of

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5 - NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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autorickshaw. Therefore, the claim petition is not maintainable under the Employee’s Compensation Act, 1923. Alternatively, it is contended that the doctor has stated that the claimant had suffered 15 to 16% of physical disability towards whole body, but the learned Commissioner has considered it as 47%, which is on the higher side. Therefore, prays to reduce the quantum of compensation.

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On the other hand, learned counsel for the claimant submitted that the claimant was working as a driver in the autorickshaw bearing Reg.No.KA-24-1972 under the employment of respondent No.1-owner and it is also reflected in the complaint lodged before the police and also the claimant has produced his driving licence. Therefore, submitted that it is proved that the claimant was working as a driver in the autorickshaw. Further submitted that the claimant had suffered fracture of left leg tibia and fibula bone in the accident and it is amounting to 100% of functional disability affecting loss of

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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earning capacity. Therefore, prays to hold 100% of functional disability. Hence, prays for enhancement of compensation.

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In the present case, it is the averment made by the claimant that he was working as a driver in the autorickshaw under the employment of respondent No.1owner of the autorickshaw. Due to the accident occurred while he was driving the autorickshaw, the autorickshaw was capsized and sustained injuries to the left leg. Considering the documentary evidence placed before the learned Commissioner that in the complaint lodged by the claimant at the very initial point of time as the complaint cannot be said to be belated on the same day soon after the accident, the claimant stated that he was working as a driver in the autorickshaw under the employment of respondent No.1-owner of autorickshaw. Further more, the claimant has produced the driving licence to say that he was holding driving licence to drive LMV. At the same time

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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upon considering the case sheet of the Victoria Hospital, in

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which, the profession of the claimant is shown as coolie.

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Upon considering these two evidences on record, after the accident when the claimant was admitted in the hospital, there may be chances of writing different version as stated by the informant to the hospital. Always it cannot be expected to state the exact profession in the case sheet in the hospital who records when the injured is admitted in the hospital who belongs to lower strata in the society. Therefore, just because, in the discharge summary, it is stated as coolie only, but whereas at the very initial point of time while filing complaint before the police, the claimant has stated that he was working as a coolie, more over, the driving licence is produced, which shows that the claimant was holding driving licence to drive LMV.

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8. Therefore, considering the evidence on record

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on all its preponderance of probabilities, it is proved that

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8 - NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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the claimant was working as a driver under the employment of respondent No.1-owner of the autorickshaw. Therefore, the Tribunal is correct in giving finding that the claimant had sustained injuries while working as driver out of and in the course of employment. Therefore, the learned Commissioner is correct in answering this issue.

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The Tribunal has held that the claimant had suffered 47% of permanent physical disability. The doctorP.W.2 had stated in the evidence that the claimant had suffered fractured to left leg tibia and fibula bone and suffered disability of 47% towards left leg and 15 to 16% towards whole body. The claimant is a driver by profession and had suffered fracture of left leg tibia and fibula bone. Therefore, certainly it cannot be said that the claimant had suffered 100% of permanent total disability affecting his profession under the Employee’s Compensation Act.

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There are two types of disabilities, one is, permanent total disability and another one is, permanent

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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partial disability. But certainly, the present case is that the claimant had not sustained permanent total disability. The doctor had stated that the claimant had suffered 15 to 16% of physical disability towards whole body. Therefore, the claimant’s case is to be categorized as permanent partial disability, but the fracture of tibia and fibula bone certainly not having percentage of permanent partial disability as 47%. In this regard, learned Commissioner exaggeratedly held the percentage of disability. Therefore, considering the nature of injuries sustained and disability suffered, it is just and proper to take 16% as permanent partial disability as per Section 4(1)(c)(ii) of Employee’s Compensation Act, 1923. As per the date of birth shown in the driving licence, the age of the claimant is 38 years and 4 months as on the date of the accident. The learned Commissioner has taken the relevant factor according to the age of claimant as 39 years. Therefore, even though, the claimant has crossed 38 years, but his age was 38 years and 4 months. Therefore, the relevant factor would be taken according to the age of the claimant as 38 years

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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as the claimant has not completed 39 years. Therefore, for the age of 38 years, the relevant factor is 189.56. The income at Rs.4,000/- taken by the learned Commissioner is found to be just and proper. Therefore, compensation under the head loss of earning capacity due to disability is re-assessed and quantified as follows:

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Rs.4,000/- x 60% x 189.56 x 16%=Rs.72,791/-

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Accordingly, compensation of Rs.72,791/- is awarded under the head loss of earning capacity due to disability along with interest at the rate of 12% per annum from the date of accident till realization. Hence, the appeal filed by the Insurance Company is liable to be allowed-inpart. The appeal filed by the claimant is liable to be dismissed. Accordingly, I proceed to pass the following

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ORDER

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i. MFA.No.5500/2012 filed by the Insurance Company is allowed-in-part .

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ii. MFA.No.5117/2014 filed by the claimant is dismissed .

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NC: 2023:KHC:23643 MFA No. 5500 of 2012 C/W MFA No. 5117 of 2014

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iii. The impugned judgment and award dated 21.02.2012 passed in WCA/FC/CR.No.17/2011 by the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-6, Bangalore, is modified to the extent that the claimant is entitled to compensation of Rs.72,791/- under the head loss of earning capacity due to disability along with interest at the rate of 12% per annum from the date of accident till realization.

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iv. No order as to costs.

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v. Excess amount, if any, deposited the same shall be refunded to the Insurance Company after transmitting the same to the Tribunal/learned Commissioner.

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vi. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.

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Sd/JUDGE

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List No.: 2 Sl No.: 3

The Divisional Manager v. Venkateshan Karanan

Case brief

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The Divisional Manager v. Venkateshan Karanan

Case brief

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