Shanta Ramagouda Patil vs Basavanni Siddappa Bambalawad

B. Manohar, J. - These appeals are filed by the claimant as well as the insurance company being aggrieved by the judgment and order dated 25-3-2010 made in WCA: NF. No. 51/ 2008 [assed by the Labour Officer and Commissioner for workmen''s Compensation, Sub-Division- 1, Belagavi (hereinafter referred to as ''WCC'' for short).

For the sake of convenience, the parties are referred to as per their ranking before the WCC.

Since both the appeals are filed challenging the very same judgment and order passed by the WCC dated 25-3-2010, they are heard together and disposed of by this common judgment.

The claimant filed the claim petition contending that on 18-9-2007, while she was working as a coolie in a tractor trailer bearing Reg. No. KA-29/T-0316,0317 and KA-23/T-2238 belonging to respondent No. 1, and unloading the fodder at the residence of respondent No. 1, she fell down from the tractor trailor sustained grievous injuries. Immediately thereafter, she was shifted to Dr. S. R. Kore''s Hospital at Sankeshwar and took treatment therein. At the time of the accident, she was aged about 33 years and getting wages of Rs. 2,400/- p.m. and Rs. 20/- per day as batta. In view of the injuries sustained in the accident, she could not do the work of coolie, which she was doing prior to the accident. The accident occurred during the course and out of employment. The insurance policy covers the risk of the tractor trailer. Hence, she sought for compensation of Rs. 4,50,000/-.

In response to the notice issued by the WCC, respondent No. 1 though served remained unrepresented. Respondent No. 2 filed written statement denying the entire averments made in the claim petition and also contended that, due to the negligence on the part of the claimant herself, she fell down and sustained injuries. The insurance policy did not cover the risk of a coolie working in a tractor trailer and there is no relationship of master and servant between the claimant and the owner of the tractor trailer. Hence, the insurance company is not liable to pay the compensation and sought for dismissal of the claim petition as against respondent No. 2.

On the basis of the pleadings of the parties, the WCC framed necessary issues. The claimant in order to prove her case examined herself as RW.1, the doctor who has issued the disability certificate examined as RW. 2 and got marked Exs. PI to P 7. On behalf of the respondents none of the witnesses are examined, however, insurance company produced insurance policy and got it marked as Ex. R-2-1.

On the basis of the oral and documentary evidence let in by the parties and taking into consideration the wound certificate, copy of the legal notice and other relevant records, the WCC held that the claimant has sustained injuries during the course and out of the employment and she is entitled for the compensation. With regard to the quantum of compensation, though the claimant claimed that she was getting wages of Rs. 2,400/- p.m. and Rs. 20/- per day as batta, no documents are produced in this regard. The claimant has sustained fracture of the distal radius of right wrist. The doctor who has issued disability certificate has held that, in view of malunion of distal radius of right wrist, she has difficulty to lift heavy objects. In view of that, the doctor has assessed the disability at 25% to the right wrist. At the time of accident, claimant was aged about 33 years. The WCC taking into consideration the income of the claimant at Rs. 2,400/- p.m. and taking 60% thereof, applying the relevant factor of 201.66 and permanent physical disability at 25% awarded the compensation of Rs. 72,597/- with interest at 7.5% p.a. from the date of petition till the date of the order and at the rate of 12% p.a. from the date of the order till the date of payment. Since the insurance policy covered the risk of the tractor trailer and one employee, liability is fastened on the insurance company to compensate the claimant.

The insurance company being aggrieved by the judgment and order fastening the liability to pay the compensation to the claimant filed an appeal in MFA No. 23787/2010 and the claimant being not satisfied with the interest awarded, filed an appeal in MFA No. 22934/ 2010.

I have carefully considered the arguments addressed by the learned counsel Sri. Sanjay S. Katageri appearing for the the claimant and Sri S. K. Kayakamath appearing for the insurance company and perused the oral and documentary evidence and other relevant records.

The records clearly disclose that the claimant was working as a coolie in a tractor trailer and sustained injuries during the course and out of the employment on 18-9-2007. In the accident, she sustained the fracture of distal radius of right wrist. The doctor who has treated the claimant stated that, in view of malunion, there is a disability of 25% towards functional disability. Learned counsel Sri S. K. Kayakamath appearing for the insurance company contended that assessment of disability to an extent of 25% for the fracture of distal radius of right wrist is on the higher side. The doctor, who has issued the disability certificate is not a treated doctor and hence, the assessment of disability is on the higher side. On the other hand, learned counsel Sri. Sanjay S. Katageri appearing for the claimant support the imugned judgment and order. He also contended that, while awarding compensation, the WCC awarded interest at the rate of 7.5% from the date of the claim petition till the date of passing of the order, which is contrary to the law laid down by the Hon''ble Apex Court in the case of ''Oriental Insurance Co. Ltd. v. Siby George and others'', reported in 2012 ACJ 2126 : AIR 2012 SC 3144. Hence, the claimant is , entitled for the interest after one month from the date of accident and sought for enhancement of compensation.

A perusal of the contentions raised by'' the appellant, I find that the disability of 25% taken by the WCC for the fracture of distal radius of right wrist is on the higher side. Apart from that, the disability certificate is not issued by the treated doctor and only for the purpose of certificate, the claimant approached Dr. S. R. Angadi and he has issued the disability certificate. In the cross-examination of the said doctor, he clearly admitted that only on the basis of the wound certificate and x-ray, he has stated that there is a disability with regard to lifting of heavy objects. Hence, the assessment of the disability to an extent of 25% is on the higher side. However, while awarding, interest the WCC has not taken into consideration the judgment of the Hon''ble Apex Court in the case of Siby George referred to supra. In the said judgment, the Hon''ble Apex Court clearly held that the claimant would be entitled for the interest at the rate of 12% p.a. from one month after the date of the accident. In the instant case, awarding interest at the rate of 7.5% p.a. from the date of claim petition is contrary to law. If the disability is taken at 15% and taking into consideration the interest after one month from the date of accident, the claimant will get very same compensation of Rs. 72,597/-. Hence, taking into consideration the facts of each case, I am not inclined to interfere with the impugned judgment and order passed by the WCC. Accordingly, the appeals filed by the claimant as well as the insurance company do not merit consideration and they stand dismissed.

The amount in deposit in MFA No. 23787/2010 shall be transferred to the Labour Officer and Commissioner for Workmen''s Compensation, Sub-Division-1, Belgaum for disbursement.

Parties to bear their own costs.