w w w . L a w y e r S e r v i c e s . i n


Khadarpasha v/s Royal Sundaram Alliance Insurance Co. Ltd & Another

    M.F.A. Nos.1104 of 2011 c/w Nos.11 of 2011, 3206 of 2011 & 3207 of 2011 (WC)
    Decided On, 22 February 2022
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE P. KRISHNA BHAT
    For the Appellant: M.C. Umadevamma & O. Mahesh, Advocates. For the Respondents O. Mahesh, Chithappa, M.C. Umadevamma & Nandish Gowda, Advocates.


Judgment Text
(Prayer: M.F.A. No.1104 of 2011: This Miscellaneous First Appeal is filed under Section 30(1) of W.C. Act against S Judgment, dated 18.10.2010 passed in WC/NFC/CR-19/2004 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-2, Bangalore, Partly allowing the Claim Petition for Compensation and seeking enhancement of Compensation.

M.F.A. No.11 of 2011: This Miscellaneous First Appeal is filed under Section 30(1) of W.C. Act against the Judgment, dated 18.10.2010 passed in WC/NFC/CR-18/2004 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-2, Bangalore, Partly allowing the Claim Petition for Compensation and seeking enhancement of Compensation.

M.F.A. No.3206 of 2011: This Miscellaneous First Appeal is filed under Section 30(1) of W.C. Act against the Judgment, dated 18.10.2010 passed in WC/BNG-2/NGC/CR No.18/2004 of the Labour Officer and Commissioner for Workmen’s Compensation, Bangalore Sub-Division-2, Bangalore, awarding a Compensation of Rs. 1,36,653.

M.F.A. No.3207 of 2011: This Miscellaneous First Appeal is filed under Section 30(1) of W.C. Act against the Judgment, dated 18.10.2010 passed in WC/BNG-2/NFC/CR No.19/2004 of the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-2, Bangalore, awarding a Compensation of Rs. 60,809.)

1. The Appeals in M.F.A. No.1104 of 2011 & M.F.A. No.11 of 2011 are at the instance of Claimants seeking enhancement of the Compensation and the Appeals in M.F.A. No.3207 of 2011 & M.F.A. No.3206 of 2011 are at the instance of Insurance Company calling in question the liability imposed on them by the Common Judgment and Award, dated 18.10.2010 in WCA/NFC/CR-18/2004 & W.C.A./NFC/CR-19/2004 by the Workmen Compensation Commissioner, Labour Court, Bengaluru.

2. The Claim Petitions were filed by the two Claimants namely Narasimha Murthy and Khadarpasha with an allegation that both of them were working in tractor and trailer as loader and un-loader owned by Respondent No.2 Shivalingaiah and insured with the Appellant-Royal Sundaram Alliance Insurance Company Limited, Bengaluru. The further allegation is that on 22.1.2004 during midnight hours while they were proceeding in the Tractor and trailer as loader and un-loader, account of rash and negligent driving of vehicle, it met with an accident resulting in grievous injuries to both the Claimants, which caused loss in their earning capacity.

3. Respondent No.2 is the Owner of the insured Vehicle. He remained ex-parte before the learned Commissioner. The Appellant-Insurance Company contested the proceedings denying the material averments made in the Claim Petitions.

4. During inquiry, both the Claimants examined themselves and they also examined PW2-Dr. S.U. Shivaprakash, who is a qualified medical practitioner and they also examined one official from the taluk hospital at Gubbi. The FIR, Charge-sheet, wound Certificate, discharge summary and other relevant documents were produced and marked. Respondent-Insurance Company examined its Legal Officer by name P. Premanand as their Witness and Policy of insurance was marked.

5. After hearing learned Counsel on both sides and perusing the records, learned Commissioner allowed the Claim Petitions in part and awarded a Compensation of Rs. 1,36,653 to Claimant Narasimha Murthy and Rs. 60,809 to Claimant Khadarpasha with interest thereon at 7.5% from the date of Petition till the date of the award and from there onwards at 12% p.a. till the date of deposit.

6. Learned Counsel for the Respondent-Insurance Company Sri. O. Mahesh vehemently contended that since the Claimants were not residents within the jurisdiction of learned Commissioner, who passed the award, learned Commissioner did not have the territorial jurisdiction to proceed with the matter and pass the award and he should have in exercise of powers under Section 21 of Employees' Compensation Act, 1923 (hereinafter referred to as 'Act' for short) transferred the same to the Commissioner, who was having jurisdiction to try the matter arising from Tumakuru district. For this purpose, he contended that the accident has taken place in Tumakuru district and both the Claimants were residents of Tumakuru district. He, therefore, submitted that learned Commissioner ought to have dismissed the Claim Petition for want of jurisdiction and the Appeal is entitled to be allowed.

7. His second contention is that the Policy of Insurance issued covers the risk of only Driver of the vehicle and therefore the Insurance Company is not liable to pay Compensation awarded to the two Claimants herein and on that ground also, this Appeal is entitled to be allowed.

8. Per contra, learned Counsel for the Claimants submitted that the Claimants are residents of Bengaluru namely N.R. Colony and the Claim Petition was presented with the said address. She contended that no specific plea was taken in the Written Statement filed by the Respondent-Insurance Company to the effect that at the time of filing of the Claim Petitions, the Claimants were not residing in Bengaluru and therefore the learned Commissioner lacks territorial jurisdiction to entertain the Claim Petition.

9. Insofar as the liability is concerned, learned Counsel for the Claimants submitted that the Vehicle is a tractor trailer and that was insured by the Appellant-Insurance Company and the same is specifically admitted by RW1. She also submitted that RW1 has admitted during the cross-examination that the Policy issued in respect of offending Vehicle was a package Policy. Therefore, she submitted that the contention of the learned Counsel for the Appellant-Insurance Company is not liable to be accepted and the liability fastened on the Insurance Company to pay Compensation by the learned Commissioner is just and reasonable.

10. Her next contention is that the Claimant Narasimha Murthy had suffered fractures in both the legs and his foot was completely crushed and the evidence of qualified medical practitioner i.e. PW 2 shows that he is not even in a position to walk properly and he was crawling. She therefore submitted that the finding of the learned Commissioner that he had suffered functional disability to the extent of 35% is improper and learned Commissioner ought to have held that he is unfit to do any manual labour on account of disability suffered by him and therefore the functional disability should have been taken at 100%.

11. She further submitted that even with regard to Claimant Khadar Pasha, the functional disability taken at 15% is inadequate and on the lower side and it should also to be enhanced and consequently Compensation awarded in both the cases is required to be enhanced.

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

13. The first contention of the learned Counsel for the Insurance Company is that the learned Commissioner at Bengaluru lacks territorial jurisdiction to try the Claim Petitions and make the award, which is impugned herein. His submission is that since the accident had taken place within Tumakuru District and the medical records show that the Claimants when they approached hospital on 22.1.2004 had given their address as residing in Gubbi and Kortagere. It is evident that they were not residing in Bengaluru and therefore the learned Commissioner lacks territorial jurisdiction. He therefore contended that learned commissioner ought to have transferred the Claim Petitions to the learned Commissioner of Tumakuru district in exercise of powers under Section 21 of the Act and this having not been done so, is illegal and the Award passed is without jurisdiction.

14. A perusal of the records shows that the Claim Petitions were filed by the Claimants and they had given their address as residing in N.R. Colony, Bengaluru. In the Written Statement filed by the Insurance Company, there is no specific averment to the effect that the Claimants were not residing in the said address. It is no doubt true that the medical records show that at the time of accident, they were residing in Gubbi and Kortagere. However, Section 21 of the Act also permits the Claimants to approach the learned Commissioner within whose jurisdiction the Claimants are residing. The Employees' Compensation Act is a beneficial legislation. Since indisputably at the time of filing the Claim Petitions both the Claimants were residing in Bengaluru, it cannot be said that the learned Commissioner did not have territorial jurisdiction to entertain the proceeding and pass the award. I do not, therefore, find any substance in the contention of the learned Counsel for the Insurance Company that the learned Commissioner had no territorial jurisdiction to entertain the proceeding and pass the award. Accordingly, the said contention is rejected.

15. Insofar as the liability of the Insurance Company is concerned, the Insurance Company has examined its Legal Officer as RW1. In his affidavit filed in lieu of examination in chief, he has stated at Para No.5 of the Affidavit that:

“The vehicle registered and insured as tractor and trailer to be used for agriculture purpose only. The sitting capacity of the tractor and trailer as per RC and policy is only one i.e. Driver only. Therefore, no passengers are allowed to be carried in the said Vehicle. Therefore, the Petitioner was traveling in the said vehicle as unauthorized passenger, such risk not required to be covered under Section 147(1) of the Motor Vehicles Act.”

16. During the cross-examination of RW1, the Legal Officer of the Insurance Company has stated that the Policy of the Insurance is a comprehensive policy. He has further stated that this comprehensive Policy means own damage and Third Party liability. Further, he deposed as follows:

“I am working as Executive legal with the Respondent Company.

Question: Do you know for what purpose the vehicle was registered ?

Answer: I vehicle was registered for miscellaneous and special type.

Question: What is the meaning of miscellaneous and special type ?

Answer: It is other than the agriculture and farmer purpose can be used for commercial purpose.

The person who has be hit by the insured Vehicle is called the 3rd party. It is not true to say that the Ex. R1-1 and Ex. R1-2 is fake document. I know that the Petitioner Khadarpasha and Narasimha Murthy were traveling in the alleged vehicle as unauthorized occupants in the vehicle. I have not contacted the Owner of the vehicle to ascertain that the Petitioners were traveling as unauthorized occupants.”

Thus, RW1 says the tractor trailer could be used for commercial purpose also and policy covered the risk when used for such purpose.

17. The Claimants have clearly stated that they were engaged by Respondent No.2 i.e. the Owner Sri. Shivalingaiah as coolie, who used to work for the purpose of loading and unloading. In the cross-examination of these Witnesses, the said version has not been shaken. Learned Commissioner has recorded a finding that Employer-Employee relationship is established and the said finding of fact is based on evidence. I am not inclined to interfere with it.

18. Since it is established that the Claimants were working as loader and un-loader at the time of accident, the Insurance Company is liable to pay Compensation for the bodily injuries suffered by the Claimants and consequently for the loss of earning capacity is suffered by them. The said aspect is covered by two decisions of this Court namely (i) National Insurance Company Ltd. v. Prakash and others, 2005 (4) KCCR 2325 (ii) National Insurance Company Limited v. Sri Maruthi and others,ILR 2011 KAR 4139 (Division Bench). In that view of the matter, the Insurance Company cannot disclaim liability to pay Compensation awarded under the Act.

19. Insofar as the injuries suffered by the Claimant Narasimha Murthy is concerned, he was inpatient from 21.1.2004 to 31.5.2004 in Victoria hospital and he was taken to Nimhans hospital also for treatment. The entire case sheet from the Victoria hospital has been produced and they are on record. They show that the Claimant Narasimha Murthy had suffered extensive fractures in both the legs including the metatarsal bone etc. He was surgically operated on couple of occasion and case sheet includes diagrammatic representation of the affected parts of both lower limbs of claimant Narasimha Murthy with the implant inserted and the surgery done. PW2 Dr. U. Shivaprakash has also given evidence in detail about residual incapacity suffered by Claimant Narasimha Murthy. In view of the injuries suffered in the accident, he is not in a position to move properly. The doctor has explained that he has to crawl and could not walk properly. He also stated that there is shortening of left leg by 2.5 cms and wasting of left leg by 1 cms. Even if there is slight exaggeration in the evidence of the qualified medical practitioner, it is evident from the kind of fractures in both legs and also the foot of the Claimant Narasimha Murthy that he is not in a position to do any manual labour. Therefore, his functional disability is 100%. In that view of the matter, the Compensation awarded towards loss of earning capacity is required to be recomputed as follows:

216.91x1800 = Rs. 3,90,438

The same shall carry interest at 12% p.a. w.e.f. 30 days from the date of accident till the date of deposit.

20. Insofar as the Claimant Kadarpasha is concerned, he had suffered fracture of left humerus.

The qualified medical practitioner has assessed his loss of earning capacity at 15%. However, no hospital case sheets are produced. He was in

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patient for 4 days but there is nothing to show that any implant was inserted while undergoing treatment for his left humerus. The qualified medical practitioner has not stated as to the degree of restriction in the movement of left arm with specificity. He has no doubt stated that there is malunion of the left humerus. It is difficult to comprehend that the simple fracture of humerus would lead to malunion of the fracture unless there is some medical negligence in treating the patient or the patient did not co-operate in the treatment. 21. I am of the view that the whole body disability assessed by the doctor at 15% is on the higher side. Accordingly, I reduce it to 5%. Therefore, the loss in the earning capacity insofar as the Claimant Kadarpasha is concerned is required to be recalculated as follows: 225.22 x 1800 x 5/100 = Rs. 20,269.80 The said Compensation shall carry interest at 12% p.a. w.e.f. 30 days from the date of accident till the date of payment. 22. Accordingly, I proceed to pass the following: ORDER: The Appeal in M.F.A. No.11 of 2011 filed by the Claimant Narasimha Murthy is allowed in part to the above extent. The Appeal in M.F.A. No.3206 of 2011 filed by the Appellant-Insurance Company is dismissed. The Appeal in MFA No.3207 of 2011 filed by the Appellant-Insurance Company is allowed in part insofar as quantum of Compensation is concerned. The Appeal in M.F.A. No.1104 of 2011 filed by the Claimant Kadarpasha is dismissed.
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