The National Insurance Company Ltd. vs Kallappa Siddappa Poojari and Others

B. Manohar, J.—The appellant-Insurance Company filed this appeal challenging the judgment and order dated 22-11-2006 made

WCA/SR-92/2006 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Belagavi (hereinafter referred to as ''the

WCC'').

The first respondent herein filed the claim petition before WCC contending that he was working as a hamali in a Tractor and Trailer bearing

registration No. KA-24/T-1359-1360 belonging to the second respondent. On 16-2-2005 as per the instructions of the owner of the vehicle, after

loading fertilizers at Mugalihala village while proceeding in the said vehicle, due to the rash and negligent driving of the tractor and trailer by its

driver, the vehicle met with an accident. The claimant fell down from the said Tractor and Trailer and sustained grievous injuries. He had taken

treatment in Dr. R.B. Koppa Shantha Nursing Home, Gokak. At the time of accident he was aged about 30 years and getting salary of Rs.

4,000/- p.m. The accident occurred during the course and out of employment and hence sought for compensation.

In pursuance of the notice issued by the WCC, the owner of the vehicle filed statement of objections, contending that the claimant was working

as a hamali with him and he met with an accident on 16-2-2005 during the course of employment. He further contended the vehicle is covered by

the insurance and the insurer is liable to compensate the claimant. Hence sought for dismissal of the claim petition as against the owner of the

vehicle.

The Insurance Company filed statement of objections contending that the claimant was not working as hamali in the said Tractor and Trailer and

he was travelling as an unauthorized passenger in the Tractor and Trailer along with some other passengers. No document is produced to show

that there is relationship of master and servant between the claimant and the owner of the vehicle. Further the Tractor and Trailer is being used for

some other purpose. Hence, the insurer is not liable to compensate the claimant and sought for dismissal of the claim petition.

On the basis of the pleadings of the parties, the WCC framed necessary issues. The claimant in order to prove his case examined himself as

P.W.1 and the doctor as P.W.2 and got marked document Ex. P1 to Ex. P7. The Administrative Officer of the Insurance Company examined

himself as R.W. 1 and insurance policy of the vehicle was marked as Ex. R-2(1).

The WCC after considering the oral and documentary evidence and taking into consideration MVI report, copy of the FIR and spot

panchanama, held that the claimant sustained injuries in the road traffic accident occurred on 16-2-2005 and at the time of accident, he was

working as a hamali in the lorry in question. Since the accident occurred during the course and out of employment, the claimant is entitled for

compensation. With regard to quantum of compensation is concerned, in the accident the claimant sustained fracture of fragment of left clavicle

bone tenderness in the middle shaft and injury to the left joint and tenderness to the left knee. The doctor who treated the claimant had assessed

the disability to an extent of 25% towards the left shoulder and 35% towards the left leg. In view of the mal-union, he found difficult to walk. At the

time of accident, the claimant was aged about 30 years. Though the claimant claimed in the claim petition that he was getting salary of Rs. 4,000/-

p.m., no document was produced in this regard. The WCC taking into consideration the minimum income of Rs. 2,500/- p.m., taking into

consideration 60% thereof, applying the relevant factor of 207.98 and also taking into consideration the disability to an extent of 75% awarded,

Rs. 2,33,977/- with interest at the rate of 12% from one month after passing of the order.

The appellant-Insurance Company being aggrieved by the quantum of compensation awarded by the WCC filed this appeal mainly contending

that though the doctor assessed the disability to an extent of 60%, the WCC has taken 75% and awarded exorbitant compensation which is

contrary to law and hence sought for setting aside the same.

On the other hand, Sri. S.G. Kadadakatte, learned counsel appearing for the claimant contended that though the doctor assessed the disability

at 60% the WCC assessed functional disability to an extent of 75% and awarded compensation and it is in accordance with law. Further, the

interest awarded from 30 days after passing the order is contrary to law laid by the Hon''ble Supreme Court and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the impugned judgment and order, oral

and documentary evidence and other relevant records.

The records clearly disclose that the claimant sustained injuries in the road traffic accident occurred on 16-2-2005 during the course and out of

employment. The owner of the vehicle admitted that the claimant was working as a hamali in the Tractor and Trailer belonged to him. The WCC,

taking into consideration the oral and documentary evidence and the Police records held that the claimant has sustained injuries during the course

of employment. I find no infirmity in the said finding.

With regard to quantum of compensation is concerned, the doctor who treated the claimant has assessed the disability to an extent of 25% to

the right shoulder and 35% to the left hand. In the accident, the claimant has sustained fracture of fragment of left clavicle bone and injury to left

knee joint. In view of the mal-union of fractured clavicle bone, the claimant cannot work as a hamali and in view of the injury to the left knee joint,

it is difficult for him to walk. The doctor assessed physical permanent disability to an extent of 35% to the left knee joint and 25% towards left

hand. While awarding compensation, the WCC has taken the disability to an extent of 75% which is contrary to law. Doctor is the expert in the

field and he has to assess the disability of the injured person. In the instant case, though the doctor assessed the disability to an extent of 60% in

respect of right shoulder and left leg, the WCC taking the functional disability over and above the assessment made by the doctor is contrary to

law. The Commissioner is not expertise in assessing the disability. The WCC ought to have taken the physical permanent disability only to an

extent of 60%. If the disability is taken as 60%, the claimant is entitled to compensation of Rs. 1,87,182/- as against 2,33,977/-. However, the

rate of interest awarded by the WCC is contrary to the law laid down by the Hon''ble Supreme Court in the case of The Oriental Insurance

Company Ltd. Vs. Siby George and Others, (2012) ACJ 2126 : AIR 2012 SC 3144 : (2012) 134 FLR 1064 : (2012) 7 JT 301 : (2013) LabIC

350 : (2012) 3 LLJ 609 : (2012) LLR 897 : (2012) 4 PLR 598 : (2012) 4 RCR(Civil) 617 : (2012) 7 SCALE 86 : (2012) 12 SCC 540 : (2012)

4 TAC 5 : (2012) AIRSCW 4384 : (2012) 5 Supreme 254 . In view of the authoritative pronouncement of law by the Hon''ble Supreme Court,

the claimant is entitled for interest from one month after the accident. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The claimant is entitled for compensation of Rs. 1,87,182/- as against Rs. 2,33,977/- awarded by WCC. However,

the claimant is entitled to interest at the rate of 12% p.m. from one month after the accident.

The amount in deposit be transferred to the WCC, Belagavi along with accrued interest.