IN THE HIGH COUPT OF KARNATAKA CIRCUTT I3ENCH AT DHARWIAD DATED THIS THE 1 1TJI DAY OF JANUARY, 2011 BEFORE THE HONBLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.2 1248/2009(WC) BETWEEN: Shri.Saleem, S/o Babanbudensab Shekh, Age: 24 Years, 0cc: Cleaner, R/o. Toravihokkal, Hubli. Appellant (By Sri.Dinesh M. Kulkarni, Adv.) AND: 1. Shri. Farooq, Sb Allabaksh Kapali, Age: Major, 0cc: Owner of Lorry No.KA-25/B-5725, R/o Near Maszid , Veerapur Oni, Hubli. 2. The Branch Manager, Reliance General Insurance Co., Ltd., V.A. Kalburgi square Desai Cross, Deshpande Nagar, Hubli. Respondents (BY Sri.Nagaraj C. Kulkarni, for R2 Ri is served.) This MFA is filed under Section 30(1) of Workmen’s Compensation Act, against the judgment and order dated 12.03.2009 passed in WCA.NF.108/2007 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-2, Hubli, awarding the compensation of Rs.39,591/- along with the interest at 12% from the date of petition till realisation. cqj This coming on for admission this day, the vt’4 court made the following: o Ioi12tL3 JUDGEMENT Claimant in this appeal is seeking for enhancement of compensation awarded by the Commissioner for Workmen’s Compensation, Sub Division-IT Hubli, in W.C.A.NF. 108/2007 dated 12.03.2009. Though appeal is listed for admission by consent of learned advocates appearing for parties it is taken up for final disposal. 2. Heard, learned advocates appearing for the parties. Sri.Dinesh M. Kulkarni, learned counsel for the appellant submits that percentage of disability assessed by the Commissioner is contrary to medical evidence tendered by the claimant and as such, submits compensation is to be enhanced by taking into consideration the disability of the claimant at 23% and consequent loss of earning capacity as against 10% assessed by Workmen’s Compensation Commissioner. He would also contend that interest awarded is contrary to provision of Workmen’s Compensation Act. 3. Per contra Sri. Nagaraj C. Kalloori, learned advocate for 2nd respondent supports the order and award passed by the Commissioner and submits it does not call for any interference. 4. Having heard the learned advocates appearing for the parties, following substantial questions of law would arise for my consideration. i) “Whether the disability assessed by Commissioner is in consonance with medical evidence available on record?” ii) Whether interest awarded is proper? 5. The accident in question, issuance of policy to the offending vehicle are not in dispute. Hence these aspects are not delved upon in the course of this order. The only issue which has been canvassed by the learned counsel for the appellant is with regard to the percentage of disability assessed by the Commissioner at 10% contending it should -4- have been 23%. Learned counsel for the appellant submits, doctor has opined the percentage of disability at 23% and same has to be taken for the purpose of determination of loss of earning capacity. 6. Per contra Sri. Dinesh M. Kulkarni contends that on examination of medical records Commissioner has rightly held the percentage of the disability at 10%. Doctor who is examined on behalf of claimant PW.2 is an Orthopedic Surgeon, of Karnataka Institute of Medical Science Hubli. He has treated claimant and examined on the date of his admission to the hospital i.e., 18.04.2007. He also states that X-rays taken would reveal the following aspects. “That X-ray of Chest were taken, X-ray LS Spine AP/Let/Parspinal Spasm, readiating to (R) Lower Limb, X-ray (R) Let, fracture of Ankel AP/NRA, X-ray of (R) Elbow AP/NRA.” 7. Claimant was clinically examined by PW.2 and was under his treatment. The disability certificate issued to the claimant came to be marked as Ex.P-14. When evidence of PW.2 is examined it is noticed that claimant has suffered -5- spinal cord injury namely, injury to L-5, on account of which there is disc degeneration of L-5 resulting in routine and constant back pain to the claimant as opined by the doctor himself. It is also stated by doctor that there is disc rupture coming in the way of routine work of the claimant. Thus, taking into consideration these aspects this Court is of the considered view that future loss of earning capacity of the claimant ought to have been taken at 15% instead of 10% as assessed by the Commissioner. In view of the same, question No.1 formulated herein above is partly answered in favour of the appellant holding the disability suffered by the claimant is to the extent 15%. 8. In view of the discussion made herein above, compensation payable to claimant is recomputed as under. 3000 X 60 X 1800 X 15 X 219.95 = Rs.59,386.50 100 100 9. In so far as interest awarded the issue is no more resintigra in view of law laid down in Oriental Insurance Compang Limited V/s. Mohd. Nasir & another reported in -6- AIR 2009 SCW 3717 whichever is earlier. Accordingly, the following order is passed. ORDER Appeal is allowed in part by answering substantial questions of law partly in favour of the claimant and awarding compensation of Rs.59,386.50/- which shall carry interest at 7 ‘/2% from the date of claim petition till the date of award and at the rate of 12% from the date of award till the date of payment or deposit which ever is earlier. No order as to costs. Registry to draw award accordingly. Sd/ JUDGE Mck/