Babu Vs Giriswamy M

THIS MFA IS FILED U/S 30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED:19.7.2013 PASSED IN WCA/Ka.aa.Da/Ka.NaPa/CR-40/2011 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, DAVANGERE DISTRICT, DAVANGERE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed under Section 30(1) of the Workmen's Compensation Act, (EC Act, 1923), challenging the award dated 19.09.2013 passed by the Labour Officer and Commissioner for Workmen's Compensation Act, Davanagere District, Davanagere (for short 'Labour Commissioner').

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The parties are referred to as per their ranking before Labour Commissioner.

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The brief facts of the case are that, the claimant was working as a driver under respondent No.1 and on his direction was driving the TATA SUMO bearing registration No.KA:23/MA-2 belonging to respondent No.1. While

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HC-KAR

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discharging his duty as driver the vehicle met with an accident on 01.05.2010 around 9.00 a.m on Huliyuru road near garden land of one Jayamma and in the said accident he sustained grievous injuries. A Criminal case was registered in the Hiriyur police station in Cr.No.185/2010 in respect of the said accident.

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The claimant further contended that he was earning Rs.4,000/- per month along with Rs.100/- per day as bata and he was aged about 34 years. He has suffered disability and cannot work. With these reasons, he prayed to award the compensation.

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The owner of the vehicle did not appear. The insurer of the said vehicle denied the contentions of the claim petition and further stated that claimant has not been suffering from any permanent disability and he is not entitled to claim the compensation.

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From the rival contentions of the parties, the

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Labour Commissioner framed the following issues:

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HC-KAR

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ªÁzÁA±ÀUÀ¼ÀÄ

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CfðzÁgÀ£ÀÄ MAzÀ£ÉÃ ¥ÀæwªÁ¢AiÀÄªÀgÀ ªÀiÁ°ÃPÀvÀézÀ mÁmÁ ¸ÀÄªÉÆÃ £ÀA.PÉJ-23/JAJ-2 zÀ°è ZÁ®PÀ£ÁV PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀÄªÁUÀ ¢£ÁAPÀ:1-5-2010 gÀAzÀÄ C¥ÀWÁvÀ ¸ÀA¨sÀ«¹gÀÄvÀÛzÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀ£ÉÃ?

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CfðzÁgÀ£ÀÄ MAzÀ£ÉÃ ¥ÀæwªÁ¢AiÀÄªÀgÀ ªÀiÁ°ÃPÀvÀézÀ mÁmÁ ¸ÀÄªÉÆ £ÀA.PÉJ-23/JAJ-2 zÀ°è ZÁ®PÀ£ÁV PÉ®¸À ¤ªÀðV¸ÀÄwÛgÀÄªÁUÀ C¥ÀWÁvÀ ¸ÀªÀÄAiÀÄzÀ°è MAzÀ£ÉÃ ¥ÀæwªÁ¢UÀ½AzÀ ¥ÀqÉAiÀÄÄwÛzÀÝ ªÀiÁ¹PÀ ªÉÃvÀ£À JµÀÄÖ JAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀ£ÀÄ? ºÁUÀÆ C¥ÀWÁvÀ ¸ÀªÀÄAiÀÄzÀ¯ÉÆè CfðzÁgÀ£À ªÀAiÀÄ¸ÉìµÀÄÖ ?

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CfðzÁgÀ£ÀÄ F C¥ÀWÁvÀzÀ°è ±Á±ÀévÀ CAUÀ£ÀÆå£ÀvÉ¬ÄAzÁV UÀ½PÉ ¸ÁªÀÄxÀåðzÀ°è DzÀ £ÀµÀÖ ¥ÀjºÁgÀPÉÌ CºÀð£ÀÄ? ªÀÄvÀÄÛ AiÀiÁjAzÀ?

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CfðzÁgÀ£ÀÄ JµÀÄÖ £ÀµÀÖ ¥ÀjºÁgÀPÉÌ CºÀð£ÀÄ? ªÀÄvÀÄÛ AiÀiÁjAzÀ? 5. DzÉÃ±À K£ÀÄ?

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The claimant on his behalf examined two witnesses as PWs-1 and 2 and marked Exs.1 to 12. The respondent - insurer examined one witness as RW1 and marked Exs.R1 to R13. After hearing both the parties, the Labour Commissioner answered issue Nos.1 and 2 in the 'affirmative' and issue Nos.3 and 4 in the 'Negative' and ultimately dismissed the claim petition on the ground that the claimant failed to prove the injuries mentioned in the

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HC-KAR

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schedule and he is suffering from permanent disability. Same is challenged in the present appeal.

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This appeal was admitted to consider the following substantial question of law:

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i. Whether the Court below is right in dismissing the claim petition solely on the ground that the name of the appellant was not mentioned in MLC record maintained in the hospital on 01.05.2010 either at Government Hospital, Hiriyur or at Apoorva Hospital, Davanagere?

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I have heard the arguments of learned counsel for the appellant and respondent No.2.

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The learned counsel for claimant submits that orders passed by the Labour Commissioner is not tenable and illegal. The said order was passed without proper application of mind. The order itself reveals that the findings given are inconsistent. In issue Nos.1 and 2, he considered that the claim petitioner sustained injuries in the

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HC-KAR

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vehicle accident that had taken place on 01.05.2010. He

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also held that during the course of employment, he sustained injuries. He also referred to evidence of PW-2 in the impugned order. He also mentioned that claimant has been suffering from permanent disability to an extent of 25%. But at the later part of its order, contrary to the earlier findings, he refused to award compensation only on the ground that claimant had not produced any records to show that he had taken treatment from 01.05.2010 in Government Hospital or any other hospital upto 03.05.2010. Only on that ground the claim petition was dismissed

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I have anxiously gone through the records. The claimant has produced medical records to prove his injury as well as examined PW2 to show that he has been suffering from permanent disability. The labour commissioner believed the evidence of PWs.1 and 2 and

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held that accident had taken place during the course of employment and it was also held that he was a employee of

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respondent No.1. But at later part of judgment, on untenable reasons held that there was no materials on record to show that claimant had taken treatment in government hospital at Hiriyuru and hence he was not entitled to claim the compensation.

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The order of the labour commissioner is inconsistent. The claimant had sustained injuries during the year 2013. Unfortunately, inspite of lapse of 12 years, he is unable to get the compensation. The Labour Commissioner ought to have considered the said point while discussing issue Nos.1 and 2. He accepted the case of the claimant that he met with an accident and sustained injuries, thereafter, only on the basis of non production of the records from 01.05.2010 to 03.05.2010, the Commissioner concluded that the claimant was not entitled to compensation.

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PW-2 in his evidence has stated that claimant is suffering from permanent disability to an extent of 24% and he had sustained fracture of tibia of right leg. If he has

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HC-KAR

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been suffering from the said disability, the labour commissioner could have considered the same. However, without justifiable reason, he rejected the same.

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Since the reasons assigned by the labour commissioner is not consistent with the materials placed on record, this Court cannot assess the compensation because under Section 30 of the Workmen Compensation Act, it cannot re-assess the evidence and give findings. It is a fit case to remand the matter to the labour court.

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Learned counsel for respondent - insurer submits that in view of the notification No.LD 159 LET 2013, Bangalore, dated 23.01.2014, the matter has to be sent to the Court of Senior Civil Judge, who is designated as the Commissioner under Workmen's Compensation Act, 1923 to consider this matter and decide on merits.

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For the aforesaid discussion, I pass the

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following:

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HC-KAR

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ORDER

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i. The appeal is allowed .

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ii. The impugned award passed by the labour commissioner dated 19.07.2013 is set aside.

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iii. The matter is remanded back to the Court of the Senior Civil Judge and Commissioner under the Employers Act, 1923 to consider afresh and pass suitable orders.

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iv. Both the parties are directed to appear before the Labour Court on 16.07.2025 without further notice from the concerned Court.

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Sd/- (UMESH M ADIGA) JUDGE

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AG

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List No.: 1 Sl No.: 1

Babu v. Giriswamy M

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Babu v. Giriswamy M

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