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The Divisional Manager, The New India Assurance Company Limited, Represented by Its Deputy Manager, Bangalore v/s Muddurangayya & Another

    MFA No. 23418 of 2009 (WC)

    Decided On, 02 July 2021

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE P. KRISHNA BHAT

    For the Appellant: M.K. Soudagar, Advocate. For the Respondents: R1, Lokesh Malavalli, Advocate.



Judgment Text

(Prayer: This MFA is filed under Section 30 of the Workmen's Compensation Act, 1923 praying to set aside the judgment and award dated 25.08.2009 in WCA/NF No.67/2008 passed by the Learned Labour Officer and Commissioner for Workmen's Compensation, Haveri District, Haveri by allowing this appeal.)

1. This is an insurer's appeal calling in question the validity of the award dated 25.08.2009 in WCA/NF No.67/2008 passed by the learned Labour Officer and Commissioner for Workmen's Compensation, Haveri District, Haveri (for short "the Commissioner").

2. Brief facts are that the claimant Muddu Rangayya was working as driver in lorry bearing registration No.KA-05/D- 3988 owned by respondent No.1-Prasad S T and insured with the appellant herein. On 30.03.2008, while the claimant was driving the said lorry on P.B. road, near MICO Factory, Ranebennur, he lost control over the lorry and it fell into a ditch resulting in grievous injuries to the claimant.

3. In the claim proceedings, respondent No.1-the owner of the vehicle in question entered appearance and filed his written statement admitting employer-employee relationship between him and the claimant and also that the accident resulting in injuries to the claimant took place in the course of and arising out of the employment. The appellant filed its separate written statement denying the material averments made in the claim petition.

4. During the enquiry, claimant examined himself as PW1 and examined a qualified medical practitioner as PW2 and Ex.P1 to Ex.P10 were marked. The appellant examined one of its officials as RW1 and policy of insurance was marked as Ex.R2(1).

5. Upon consideration of the materials produced and the evidence let in, learned Commissioner answered the points for consideration arising in the case in favour of the claimant and against the appellant herein and awarded a sum of Rs.2,03,328/- as compensation with interest thereon at 12% per annum.

6. It is urged on behalf of the appellant-insurance company that the finding of the learned Commissioner on the employer-employee relationship is based on no evidence and therefore, it is liable to be set aside. It is also contended that the claimant was not holding valid and effective driving licence to drive the vehicle in question and the appellant is not liable to reimburse the compensation amount. It is further contended that the loss in the earning capacity of the claimant fixed at 50% is unjustified and the award of Rs.2,03,328/- made by the learned Commissioner is excessive.

7. I have given my anxious consideration to the above submissions and I have perused the records.

8. Claimant has specifically pleaded that he was working as driver in lorry bearing registration No.KA-05/D-3988 owned by respondent No.1-Prasad ST and insured with the appellant. Respondent No.1-the owner of the vehicle in question, in his written statement, has admitted the above fact very clearly. The complaint-Ex.P1 also shows that at the time of the accident, claimant was working as driver of the lorry in question. The charge-sheet also shows the claimant as accused. Claimant has also in his evidence stated that he was working as driver under respondent No.1 in the lorry bearing registration No.KA- 05/D-3988 and the accident resulting in the injuries had taken place in the course of and arising out of the employment. In that view of the matter, the finding of fact recorded by the learned Commissioner on these aspects are fully supported by the evidence placed before him and therefore, they are not liable to be interfered with.

9. It is contended that the loss in the earning capacity assessed by the learned Commissioner at 50% is exorbitant, especially since he had suffered 55% of permanent disability in respect of his right lower limb. The wound certificate, Ex.P2, issued by Senior Specialist, General Hospital, Ranebennur shows that there was fracture of shaft of femur at middle 1/3rd of right thigh. The X-rays were also taken in the said hospital. PW2, the qualified medical practitioner, had examined the claimant and noticed various restriction in the movement of his right lower limb on account of fracture suffered by him. He had made his assessment that the claimant had suffered 55% total permanent physical disability and loss of physical function with respect to the right lower limb. Learned Commissioner upon consideration of the relevant factors like the claimant being a driver of heavy goods vehicle, the fracture site being middle 1/3rd of the right thigh, the extent of disability suffered by him on account of the restricted movement in the said limb and the overall effect of the same on his working efficiency as a driver of the heavy goods vehicle, has fixed the loss in the earning capacity at 50%. I do not find any illegality or arbitrariness in the assessment regarding loss of earning capacity made by the learned Commissioner and therefore, it is not required to be interfered with in an appeal under Section 30(1) of the Employee's Compensation Act, 1923.

10. In regard to the contention put forth on behalf of the appellant that claimant was not having valid and effective driving licence is concerned, Ex.P10-the original driving licence has been produced, which is part of Trial Court records. Learned Commissioner on consideration of the same, has come to the conclusion that the claimant was having valid and effective driving licence to drive the lorry in question. In that view of the matter, I do not find any merit in this appeal and it is liable to be dismissed. However, the learned Commissioner has committed an error in awarding interest on the compensation amount only w.e.f. 30 days from the date of the award. The same is liable to b

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e rectified by awarding interest w.e.f. 30 days from the date of the accident. Hence, the following: ORDER The above appeal is dismissed. However, the appellant is liable to pay interest on the award amount w.e.f. 30 days from the date of the accident till the date of realisation. The amount in deposit, if any, before the registry, shall be transmitted to the jurisdictional Court of the learned Senior Civil Judge along with the records, forthwith. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
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