The Divisional Manager, Oriental Insurance Co. Ltd. Rep. by Regional Manager Vs. Ramanjappa, Driver - Court Judgment

SooperKanoon Citationsooperkanoon.com/843631
SubjectLabour and Industrial
CourtKarnataka High Court
Decided OnOct-09-2009
Case NumberMiscellaneous First Appeal No. 8751 of 2008
JudgeB. Sreenivase Gowda, J.
ActsWorkmen's Compensation Act - Sections 4
AppellantThe Divisional Manager, Oriental Insurance Co. Ltd. Rep. by Regional Manager
RespondentRamanjappa, Driver
Appellant AdvocateC. Shankar Reddy, Adv.
Respondent AdvocateM. Vinaya Keerthy, Adv.
Cases ReferredOriental Insurance Co. Ltd. v. Mohd. Nasir and Anr.
Excerpt:
- indian evidence act, 1872.section 3: [c.k. thakker & d.k. jain, jj] interested witnesses - court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground to the interest of such witnesses in the prosecution. the relationship per se does not affect the credibility of a witness. merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterised as an interested witness. the term interested postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.section 3: interested witnesses - a close relative cannot be characterised as an interested witness - he is a natural witness. his evidence, however, must be scrutinised carefully. if on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the sole testimony of such witness. close relationship of witness with the deceased or victim is no ground to reject the evidence. on the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.indian penal code, 1890.section 302: murder- dispute over possession of flat -assault on deceased by accused pw-1 and pw-2 are eye-witnesses to incident - pw-2, the sole independent witness did not support the prosecution version, in so much as he did not claim to have seen occurrence - he stated that he had come soon after the assault -moreover, many inconsistencies in evidence of pw-1 and pw-2 - no member of crowd which had gathered had been examined - presence of pw-1 doubted - held, case under section 302 ipc is not made out. conviction was set aside. indian penal code, 1890. section 456: house breaking by night fir lodged by pw1 and he had not mentioned that accused no.4 and 5 broke open their flat and occupied it - no reason assigned for such omission - moreover, pw4 father of pw1 did not even whisper about forcible occupation of their flat by accused nos. 4 and 5 held, omission to mention the fact regarding the occupation of flat by accused nos. 4 and 5 in fir held to be very important circumstances, fatal to prosecution case. conviction under section 456 not warranted. b. sreenivase gowda, j.1. this appeal is by the insurance company challenging the quantum of compensation awarded by the commissioner for workmen's compensation, davangere (for short 'the commissioner').2. for the sake of convenience parties are referred to as they are referred to in the claim petition before the commissioner.3. brief facts of the case:that on 14.07.2006 when the claimant was working as driver of the lorry bearing registration no. ka-04/b-4181 belonging to the 1st respondent, the lorry met with an accident, as a result, he sustained injuries. he made an application before the commissioner seeking compensation.4. the insurance company filed its statement of objections resisting the claim.5. the claimant in support of his claim examined himself as pw 1 and the doctor as pw 2. he has produced as many as 13 documents, which are marked as ex. p1 to p13.6. the insurance company did not lead any independent evidence except producing the insurance policy ex. r1(2).7. the commissioner after considering the oral and documentary evidence of the parties by the impugned judgment has held that the claimant has established that be sustained injuries in the accident occurred in the course of and out of employment and he is entitled for compensation, thereafter the commissioner taking into consideration the age of the claimant, nature of his job, the wages drawn by him, the disability stated by the doctor and assessing the loss of earning capacity at 40% and applying the relevant factor as per his age by the impugned award has awarded a compensation of rs. 2,03,318/- with interest at 12% p.a. after 30 days from the date of award. aggrieved by the quantum of compensation awarded by the commissioner the insurance company is in appeal seeking reduction of compensation.8. as there is no dispute regarding the injury sustained by the claimant in the accident occurred in the course of and out of employment and the liability of the insurance company the only substantial question of law that arises for consideration in this appeal is:whether the commissioner is justified in assessing the salary of the claimant at rs. 4,000/- p.m. and assessing the loss of earning capacity at 40% and awarding interest at 12% p.a. after 30 days from the date of award9. sri c. shankar reddy, learned counsel appearing for the insurance company contended that pw 2 the doctor who issued disability certificate has stated that the claimant has sustained 35% to 45% disability to the limit but has not stated what is the percentage of loss of earning capacity on account of the injury sustained by the claimant in the accident and therefore the commissioner is not justified in assessing the disability at 40% and awarding compensation and therefore he prays for allowing the appeal and reducing the compensation.10. per contra sri vinayakeerthi, learned counsel appearing for the claimant contended that the claimant by working as driver in the lorry belonging to the 1st respondent before the commissioner was earning rs. 6,000/- p.m. and therefore the commissioner is not justified in assessing his salary at rs. 4,000/- p.m. he further contended that pw 2, though is not the treating the doctor has issued the disability certificate only after examining die claimant and therefore the commissioner is justified to assessing the loss of earning capacity at 40%. he further submits that the interest awarded by the commissioner is contrary to the judgment of the supreme court in the case of oriental insurance co. ltd. v. mohd. nasir and anr. reported in 2009 air scw 3717 and therefore he prays for dismissal of the appeal.11. as there is no dispute between the parties that the claimant was working as driver in the lorry belonging to the 1st respondent before the commissioner.11(a) even though the claimant has established that he was drawing tiie salary of rs. 6,000/- p.m. but as per the explanation ii to proviso of section 4 of the workmen's compensation act the commissioner cannot take more than rs. 4,000/- p.m. arid therefore the salary taken at rs. 4,000/- is just and proper. however it is based on the material available on record and there is no substantial question of law involved inviting interference by this court.12. the claimant has sustained the fracture of upper end of tibia and fibula and lacerated wound. pw 2 the doctor issued the disability certificate only after examining the claimant and perusing the medical records stating that the claimant has sustained 35% to 45% disability to the limb. as per the provision of the w.c. act the doctor is required to state what is the percentage of loss of earning capacity on account of the injury sustained by the claimant in the accident. at this juncture, learned counsel appearing for the parties submit that instead of remanding the matter on this technical ground request this court to assess the loss of earning capacity on the material available on record and award just and reasonable compensation. considering the age of the claimant, nature of his job, the salary drawn by him, the disability stated by the doctor and perusing the wound certificate it is just and proper to assess the loss of earning capacity at 30%. that being so, the compensation would work out to rs. 1,52,488.80 (rs. 2400 x 211.79 x 30%) as against rs. 2,03,318/- awarded by the commissioner.13. with regard to rate of interest the learned counsel fairly submit it may be modified as per the judgment of the apex court in the case of oriental insurance co. ltd. v. mohd. nasir and anr. reported in 2009 air scw 3717 wherein it is held that the interest has to be awarded at 7 1/2% p.a. from the date of claim petition till the date of award and 12% p.a. from the date of award till the date of payment. question of law is answered as above. hence i pass the following:orderi) the appeal is allowed in part and the judgment and award of the commissioner is modified.ii) the claimant is entitled to a total compensation of rs. 1,52,488.80 as against rs. 2,03,318/- awarded by the commissioner with interest at 7 1/2% p.a. from the date of claim petition till the date of award and 12% p.a. from the date of award till the date of payment and no order as to cost.iii) in view of depositing of the entire award amount by the insurance company office is directed to calculate the amount payable to the claimant and the balance amount, if any, shall be refunded to the insurance company.iv) the rest of the award of the commissioner remains as it is.
Judgment:

B. Sreenivase Gowda, J.

1. This appeal is by the Insurance Company challenging the quantum of compensation awarded by the Commissioner for Workmen's Compensation, Davangere (for short 'the Commissioner').

2. For the sake of convenience parties are referred to as they are referred to in the claim petition before the Commissioner.

3. Brief facts of the case:

That on 14.07.2006 when the claimant was working as driver of the lorry bearing registration No. KA-04/B-4181 belonging to the 1st respondent, the lorry met with an accident, as a result, he sustained injuries. He made an application before the Commissioner seeking compensation.

4. The Insurance Company filed its statement of objections resisting the claim.

5. The claimant in support of his claim examined himself as PW 1 and the doctor as PW 2. He has produced as many as 13 documents, which are marked as Ex. P1 to P13.

6. The Insurance Company did not lead any independent evidence except producing the insurance policy Ex. R1(2).

7. The Commissioner after considering the oral and documentary evidence of the parties by the impugned judgment has held that the claimant has established that be sustained injuries in the accident occurred in the course of and out of employment and he is entitled for compensation, Thereafter the Commissioner taking into consideration the age of the claimant, nature of his job, the wages drawn by him, the disability stated by the doctor and assessing the loss of earning capacity at 40% and applying the relevant factor as per his age by the impugned award has awarded a compensation of Rs. 2,03,318/- with interest at 12% p.a. after 30 days from the date of award. Aggrieved by the quantum of compensation awarded by the Commissioner the Insurance Company is in appeal seeking reduction of compensation.

8. As there is no dispute regarding the injury sustained by the claimant in the accident occurred in the course of and out of employment and the liability of the Insurance Company the only substantial question of law that arises for consideration in this appeal is:

Whether the Commissioner is justified in assessing the salary of the claimant at Rs. 4,000/- p.m. and assessing the loss of earning capacity at 40% and awarding interest at 12% p.a. after 30 days from the date of award

9. Sri C. Shankar Reddy, learned Counsel appearing for the Insurance Company contended that PW 2 the doctor who issued disability certificate has stated that the claimant has sustained 35% to 45% disability to the limit but has not stated what is the percentage of loss of earning capacity on account of the injury sustained by the claimant in the accident and therefore the Commissioner is not justified in assessing the disability at 40% and awarding compensation and therefore he prays for allowing the appeal and reducing the compensation.

10. Per contra Sri Vinayakeerthi, learned Counsel appearing for the claimant contended that the claimant by working as driver in the lorry belonging to the 1st respondent before the Commissioner was earning Rs. 6,000/- p.m. and therefore the Commissioner is not justified in assessing his salary at Rs. 4,000/- p.m. He further contended that PW 2, though is not the treating the doctor has issued the disability certificate only after examining die claimant and therefore the Commissioner is justified to assessing the loss of earning capacity at 40%. He further submits that the interest awarded by the Commissioner is contrary to the judgment of the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Mohd. Nasir and Anr. reported in 2009 AIR SCW 3717 and therefore he prays for dismissal of the appeal.

11. As there is no dispute between the parties that the claimant was working as driver in the lorry belonging to the 1st respondent before the Commissioner.

11(a) Even though the claimant has established that he was drawing tiie salary of Rs. 6,000/- p.m. but as per the explanation II to proviso of Section 4 of the Workmen's Compensation Act the Commissioner cannot take more than Rs. 4,000/- p.m. arid therefore the salary taken at Rs. 4,000/- is just and proper. However it is based on the material available on record and there is no substantial question of law involved inviting interference by this Court.

12. The claimant has sustained the fracture of upper end of tibia and fibula and lacerated wound. PW 2 the doctor issued the disability certificate only after examining the claimant and perusing the medical records stating that the claimant has sustained 35% to 45% disability to the limb. As per the provision of the W.C. Act the doctor is required to state what is the percentage of loss of earning capacity on account of the injury sustained by the claimant in the accident. At this juncture, learned Counsel appearing for the parties submit that instead of remanding the matter on this technical ground request this Court to assess the loss of earning capacity on the material available on record and award just and reasonable compensation. Considering the age of the claimant, nature of his job, the salary drawn by him, the disability stated by the doctor and perusing the wound certificate it is just and proper to assess the loss of earning capacity at 30%. That being so, the compensation would work out to Rs. 1,52,488.80 (Rs. 2400 x 211.79 x 30%) as against Rs. 2,03,318/- awarded by the Commissioner.

13. With regard to rate of interest the learned Counsel fairly submit it may be modified as per the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. v. Mohd. Nasir and Anr. reported in 2009 AIR SCW 3717 wherein it is held that the interest has to be awarded at 7 1/2% p.a. from the date of claim petition till the date of award and 12% p.a. from the date of award till the date of payment. Question of law is answered as above. Hence I pass the following:

ORDER

i) The appeal is allowed in part and the judgment and award of the Commissioner is modified.

ii) The claimant is entitled to a total compensation of Rs. 1,52,488.80 as against Rs. 2,03,318/- awarded by the Commissioner with interest at 7 1/2% p.a. from the date of claim petition till the date of award and 12% p.a. from the date of award till the date of payment and no order as to cost.

iii) In view of depositing of the entire award amount by the Insurance Company office is directed to calculate the amount payable to the claimant and the balance amount, if any, shall be refunded to the Insurance Company.

iv) The rest of the award of the Commissioner remains as it is.