—1— IN THE OH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 06TF1 DAY OF JANUARY, 2011 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR M.F.A.NO.7804/2006 Between: M/s National Insurance Co. Ltd., Sujatha Talkies complex Hubli. Now represented by Regional Office, Shubaram complex, # 144, M.G.Road, Bangalore, Represented by its Administrative Officer. Appellant (By Smt.Aruna Deshpande, Adv. for A.M.Venkatesh Advocate) And: 1. Sri.Hanumanthappa Sb Hanumanthappa Vaddara, Major, R/o.: Renebennur, Haven Taluk. 2. A.K.Mishra, SI D.K.Mishra, No.57, MIG 2 Hchchana, 3rd Stage, Mysore, Owner of the vehicle No.KA 09 8163. Respondents (BY Sri.M.H.Patil, Adv. for Ri, R2 served) This MFA is filed under Section 30(1) of Workmen’s Compensation Act against the order dated 27.04.2006 passed in WCA/NF-243/2003 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Haven, awarding compensation of Rs. 1,50,328/- with interest @ 12% P.A. from 20.12.2003 till the date of deposit and directing the appellant herein to deposit the same. 4— This [etition1 coming on for admission this day, the court delivered the following: I oil t: JUDGEMENT Insurer is in appeal questioning the correctness and legality of the order and award passed by Commissioner for Workmen’s Compensation, Haven in WCA No. 243/2003 dated 27.04.2006. 2. On account of road traffic accident that occurred on 03.05.2003 to the truck bearing registration No.KA.09/A- 8163 on account of which a claim petition came to be filed seeking compensation from appellant and 2nd respondents herein. It was contended that in the course of employment claimant was proceeding in said truck and he sustained injuries in said accident resulting in permanent physical disability and as such compensation was sought for. 3. Respondent insurer entered appearance and denied claim averments and on the basis of pleadings of the parties Commissioner formulated issues for his consideration and on considering the evidence placed by the claimant also the evidence placed by the insurer, Commissioner allowed the claim petition-in-part and awarded a total compensation of Rs. 1,50,328/-. 4. It is this order and award which is questioned in the present appeal by Insurer. 5. Heard Smt.Aruna Deshapande, learned advocate appearing on behalf of the appellant-insurer. None appears for the respondent though served. 6. It is the contention of learned advocate for the appellant, that vehicle in question was proceeding interstate and in such circumstances the Hamalies would not travel with the truck. As such she would contend a presumption has to be drawn that claimant was a passenger travelling in truck. She also prays that consequently, it has to be held that insurer need not indemnify the insured in respect of such claim, since it would be in violation of the contract of insurance. As such she submits that substantial question of law formulated in the appeal would arise for consideration to -4- be formulated and answered in favour of the appellant- insurer. 7. Having heard the learned advocate appearing for the appellant and also on perusal of order and award passed by the Commissioner including the exhibits made available by the learned advocate for the appellant during the course of her arguments, it is noticed that immediately on the occurrence of the accident jurisdictional police have registered a criminal case and filed FIR as per Ex.P-6. It is specifically stated by the complainant that vehicle was proceeding with Hamalies. In the list annexed to the FIR name of the injured persons, their occupation is also mentioned wherein the claimant herein has been listed at Sl.No.6 and occupation that has been shown against his name is Hamali. It is also seen from statement recorded by the Investigating Authorities as per Ex.P-5 from the claimant wherein he has specifically stated that he was travelling as Hamali in the offending truck. Merely because truck was travelling from one State to another State it would not ipso facto lead to a conclusion that Hamalis need not travel while 4.. goods are being transported interstate. Admittedly, truck in question was carrying Bacardi Rum manufactured by Bacardi India Limited in the offending truck, which was on contract basis with the said manufacturer and it would also presuppose in such circumstances that loading and unloading of such goods would be on the transport contractor. As such contention of the learned advocate for the appellant that inference has to be drawn that claimant and others are travelling in the truck as passengers and not Hamali, cannot be accepted. In view of the above discussions contention of learned advocate appearing for the appellant does not merit consideration and it is hereby rejected. 8. She has also contended that disability assessed by the Commissioner with regard to loss of earning capacity is on the higher side. A perusal of the evidence of Doctor as also the order and award, it would reveal that the insurer has been vigilant enough to seek opinion of their panel Doctor to examine the claimant and ascertain the disability. The panel doctor of Insurer has also assessed the disability between 25% to 3OYo. Thus taking into consideration this evidence as -6 also evidence of the doctor, examined on behalf of claimant and considering the nature of injuries sustained by the claimant namely “fracture of lateral malleus” and considering the nature of avocation of the claimant Commissioner has rightly assessed the loss of earning capacity of the claimant at 35%. This finding also cannot be held either to be on the higher side or contrary to evidence on record resulting in perverse finding. Accordingly, contention of the learned advocate appearing for the appellant on the issue of percentage of disability assessed by the Commissioner also cannot be accepted and it is hereby rejected. In these circumstances, appeal does not merit admission as there is no substantial question of law being involved for being formulated and adjudicated. Accordingly, appeal is dismissed as devoid of merits. No order as to costs. Registry to draw award accordingly. S.dJ ‘ Vnp*/PV