Iffco Tokio General Insurance Co. Ltd., Vs Shri. Devappa Raghunath Gouda @ Hanabar

SHRI. DEVAPPA RAGHUNATH GOUDA @ HANABAR, AGE: 29 YEARS, OCC: OPERATOR ON CRUSHING MACHINE, R/O: TINEGHAT-MARASANGAL, TAL: JOIDA, DIST: KARWAR, PINCODE-581186.

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…APPELLANT

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(BY SRI SANJAY S.KATAGERI, ADVOCATE)

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AND:

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THE POPULAR CRUSHER RESOURCES PVT. LTD., BY ITS DIRECTOR, CCB NO.110/1, CONGRESS ROAD, TILAKWADI BELAGAVI, PINCODE-590006.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH

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Location: HIGH COURT OF KARNATAKA

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IFFCO TOKIO GENERAL INSURANCE CO. LTD., IIND FLOOR, SHIKSHAKAR BHAVAN, COLLEGE ROAD, BELAGAVI, PINCODE-590001.

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…RESPONDENTS

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(BY SMT. GEETHA K.M., ADVOCATE FOR R1; SRI G.N. RAICHUR, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30 (1) OF THE EMPLOYEES COMPENSATION ACT, 1923, (AMENDED ACT, 2010) PRAYING TO, THE JUDGMENT AND AWARD DATED 07.10.2017, PASSED IN ECA.NO.217/2014, BY THE III ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION ACT, BELAGAVI, IN AWARDING THE COMPENSATION OF RS.4,73,000/- WITH INTEREST @ 12% PER ANNUM, BE KINDLY MODIFIED BY ENHANCING TO RS.12,00,000/-

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NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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WITH INTEREST @ 12% PER ANNUM AFTER ONE MONTH FROM THE DATE OF INCIDENT TILL THE DATE OF PAYMENT, BY HOLDING RESPONDENTS NO.1 AND 2 JOINTLY AND SEVERALLY LIABLE TO PAY THE COMPENSATION, BY ALLOWING THIS APPEAL, WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN M.F.A. NO.102036 OF 2018

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BETWEEN:

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IFFCO TOKIO GENERAL INSURANCE CO. LTD., II ND FLOOR, SHIKSHAKAR BHAVAN, COLLEGE ROAD, BELAGAVI-590001, (INSURED AT DAJIBANPETH) INSURER OF CRUSHING MACHINE OPERATOR POLICY NO.43043398 VALID FROM 06/11/2010 TO 05/02/2011) REPRESENTED BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI G.N. RAICHUR, ADVOCATE)

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AND:

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SHRI. DEVAPPA RAGHUNATH GOUDA @ HANABAR, AGE: 28 YEARS, OCC: OPERATOR ON CRUSHING MACHINE, R/O: TINEGHAT-MARASANGAL, TQ: JOIDA, DIST: KARWAR-581453.

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THE POPULAR CRUSHER RESOURCES PVT. LTD., BY ITS DIRECTOR CCB NO.110/1 CONGRESS ROAD, TILAKWADI, BELAGAVI-590001.

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…RESPONDENTS

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(BY SRI SANJAY S.KATAGERI, ADVOCATE FOR R1; SRI K. ANANDKUMAR, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30 (1) OF THE EMPLOYEES COMPENSATION ACT, 1923, PRAYING TO, MODIFYING THE JUDGMENT AND AWARD DATED 07.10.2017 BY EXONERATING THE APPELLANT FROM THE LIABILITY AND REDUCING THE COMPENSATION PASSED BY THE COURT OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR WORKMEN’S COMPENSATION, BELAGAVI IN ECA NO.217/2014 BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

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NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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Though these appeals are listed for hearing on

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interlocutory application, with consent of learned counsel for the parties, they are taken up for final disposal.

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MFA No.104034/2018 is filed by the claimant/injured under Section 30(1) of the Employees Compensation Act, 1923 (for short, ‘Act’), seeking enhancement of compensation, whereas the MFA No.102036/2018 is filed by the Insurance company questioning the liability saddled on it and also to adduce the quantum of compensation, by challenging the judgment and award dated 07.10.2017, passed in ECA No.217/2014, by the III Additional Senior Civil Judge and Commissioner for Employees’ Compensation Act, Belagavi (for short, ‘Commissioner’).

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Heard the arguments and perused the material placed before the Court.

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The occurrence of accident and injuries sustained by the claimant are not in dispute in this case.

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NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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In the present case, from the medical evidence on

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record it is proved that the claimant had suffered the following injury:

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“Amputation of Right Forearm below Elbow.”

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In this case, the Commissioner has awarded

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compensation under various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Towards loss of earning capacity due to disability.	3,93,246
2.	Towards medical expenses.	79,754
	Total:	4,73,000

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On 22.12.2010 at about 5.00 p.m., the claimant

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having sustained employment injuries, out of and in the course of employment while working as a machine operator on the crusher machine at Uchawade, Taluk Khanapur, District Belagavi under the employment of respondent No.1. It is held that the claimant had suffered amputation of right forearm below elbow. The Commissioner has awarded a compensation of Rs.4,73,000/- along with interest at the rate of 12% per annum from the date of petition till realization for the injuries sustained by him, by holding percentage of disability at 50% and considering the relevant factor according to the age of the

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NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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claimant. Therefore, the claimant being aggrieved by the lesser amount of compensation, has preferred the present appeal for enhancement of compensation, whereas the Insurance Company has preferred the appeal questioning its liability on the reason that the insurance policy is not a Workmen’s Insurance Policy, but it is a Statutory Policy and also for reducing the quantum of compensation awarded by the Commissioner.

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Upon hearing arguments, the following substantial questions of law that arises for consideration in the present appeals are:

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i) “Whether, under the facts and circumstances of the case, the Insurance Company is liable to pay compensation in view of nature of insurance policy?

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ii) Whether, under the facts and circumstances of the case, the quantum of compensation determined by the learned Commissioner is erroneous and the claimant is entitled for enhancement of compensation?”

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The above substantial questions of law are

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answered in the negative.

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6 - NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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In the present case, the accident occurred on 22.12.2010. The claimant was working as machine operator on the crusher machine under the employment of respondent No.1 and the machineries was insured with respondent No.2. Upon placing documentary evidence on record, it is held that the claimant had suffered employment injuries while working as a machine operator under the employment of respondent No.1. The Commissioner has committed an error in taking only Rs.6,000/- per month as wage and holding the percentage of permanent disability as 50%. On perusal of record, it is held that the claimant has suffered amputation of amputation of right forearm below elbow. The PW.2 doctor has stated that the claimant has suffered 70% of disability to his right upper limb due to the amputation of his 1/3^rd of the right forearm. But at the same time, the Commissioner has committed an error in taking disability at 50%. As per Schedule-III of the Karnataka Workmen’s Compensation Rules, 1966 (for short, ‘Rules’) and as per Schedule-I of the Act for the amputation from 20.32 cms from tip of acromion to less than 11.43 cms below tip of olecranon the disability is considered as 70%. Therefore, considering the nature of injuries sustained and the avocation

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NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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of the claimant and also as per Schedule- III of the Rules and Schedule-I of the Act, it is just and proper to take 70% as permanent disability and retain the relevant factor taken by the commissioner. As per section 4 of the Workmen’s Compensation Act, 60% of the monthly wages has to be considered and also as per Section 4(1)(a)(b) of the Act, the claimant is entitled to monthly wage of Rs.8,000/-. Hence, this Court re-assesses the compensation as under:

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Rs.7,34,059/- (Rs.8,000 x 60% x 70% x 218.47)

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The compensation of Rs.79,754/- awarded by the

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commissioner towards medical expenses is left intact as it is based on the actual medical bills.

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Therefore, the claimant is entitled for total compensation of Rs.8,13,813/- along with interest at the rate of 12% p.a. from the date of accident till realization, as against Rs.4,73,000/- awarded by the Commissioner.

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In the present case, the insurance policy is Workmen’s Compensation Policy. Therefore the sum assured is towards machine operator, drivers, helpers and helpers/coolies. The claimant is a machine operator, therefore, as per insurance

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NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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policy the risk is covered. Hence, the respondent No.2Insurance Company is liable to indemnify the owner and pay compensation to the claimant.

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In the result, I proceed to pass the following:

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ORDER

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i) MFA No.104034/2018 filed by the

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claimant stands allowed in part .

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ii) MFA No.102036/2018 filed by the Insurance Company stands dismissed.

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iii) The judgment and award dated 07.10.2017 passed in ECA No.217/2014 by the III Additional Senior Civil Judge and Commissioner for Employees’ Compensation Act, Belagavi, stands modified.

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iv) The claimant is entitled for total compensation of Rs.8,13,813/- along with interest at the rate of 12% p.a. from the date of accident till its realization, as against

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NC: 2025:KHC-D:2054 MFA No. 104034 of 2018 C/W MFA No. 102036 of 2018

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