I N TH E H IGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARXVAD DATED THIS THE 05” DAY OF JANUARY, 2011 BEFORE THE HONBLE MR.JUSTICE ARAVIND KUMAR M.F.A.NO.202 16/2008 Connected with M.F.A.CROB.NO.789/20 10 IN M.F.A.NO.20216/2008: Between: Oriental Insurance Co.Ltd., Divisional Office, N.K. Complex, Keshavapur, Hubli. By it’s Manager. Appellant (By Sri.Suresh P. Hadedagaddi, Advocate for Sri. C.S.Benni, Advocate) And: 1. Shankarrao Ramachandrarao Marati Aged 28 Years, R/o Ydhadi, Lingasur Taluk, Now at Hulkoti, Gadag Taluk and Dist. 2. Subhashgouda Hanumanthgouda Adeppanavar, Major, R/o Hulkoti, Gadag Taluk and Dist. Respondents (BY Sri.Chandrashekar P. Patil, Advocate) This MFA is filed under Section 30(1) of Workmen’s Compensation Act against the order dated 29.02.2008 passed inKAG/KNP/NF.No.91/2006 on the file of the Labour Officer and Commissioner for Workmen Compensation, Gadag Dist., Gadag. IN M.F.A.CROB,NO.78912010: Between: Shankarrao Ramachandrarao Marati Aged 30 Years, R/o Vaidadi Tq:Lingasugar, Dist: Raichur Cross-Objector (By Sri. Chandrashekar P. Patil, Advocate for cross objector/appellant) And: 1. Oriental Insurance Co. Ltd., Divisional Officer, N.K.Complex, Keshavapura, Hubli, Dist: Dharwad, By its Manager. 2. Subhasagouda Hanumathagouda Adeppanavar Age: Major, R/o Hulkot, Tq:Gadag, Dist: Gadag. Respondents (BY Sri.Suresh P. Hadedagaddi, Advocate for Sri. C.S.Benni, Adv. for Ri) This MFA is filed under order 41 rule of CPC, against the judgment and order dated: 29.02.2008 passed in KaAGa/KaNaPa/NF-91/2006 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Gadag District, Gadag, partly allowing the claim petition for compensation and seeking enhancement of compensation. ThisètNori coming on for hearing this day, the court made the following: C viK -3- JUDGEMENT MFA No.20216/2008 by the insurer questioning the correctness and legality of the award passed by the Commissioner for Workmen’s Compensation, Gadag in WCA No. 91/2006 dated 29.02.2008 and seeking for formulating substantial questions of law enumerated in the appeal memorandum and answering the same in favour of appellant insurer and consequently seeking for reduction of the compensation as awarded. 2. MFA Crob.No.789/2010 by the claimant questioning the same order and award and seeking for enhancement by answering the question of law formulated in favour of claimant. 3. Since this appeal and cross objections arise out of the same order and award passed by the Commissioner for Workmen’s Compensation, they are taken up together for consideration for final hearing by consent of the learned advocates appearing for the parties. 4. Heard Sri.Suresh P. Hudedgaddi, learned advocate appearing on behalf of Sri.C.S.Benni and Sri.Chandrashekar P. Patil, learned advocate appearing for the claimants. 5. The claimant was in the employment of Subhashgouda Hanmanthgouda Adappagoudar 2nd respondent herein working as cleaner in a truck bearing registration No.KA-26/4414 belonging to said Subhashgouda. On 18.03.2006 while the claimant was proceeding in the said vehicle in the course of his employment is said to have met with road traffic accident. On account of which the claimant has sustained injuries which arose in the out of employment and on account of injuries sustained, claimant contended that he has sustained permanent physical disability and was unable to carry on any other avocation and as such he filed claim petition seeking compensation of Rs.5,00,000/-. On registration of claim petition, notices were issued by the Commissioner for Workmen’s Compensation and both respondents appeared. It is only the 2nd respondent insurer who contested the matter before the Commissioner for Workmen’s Compensation by filing detailed statement of objections and denying the averments made in claim petition. Claimant got himself examined and also tendered evidence of the doctor who treated him. On the basis of the pleadings and evidence tendered by the parties. Commissioner for Workmen’s Compensation by his order and award dated 29.02.2008 allowed the claim petition in part and awarded a compensation of Rs.3,78,045/- and interest at the rate of 12% p.a. payable one month from the date of accident. 5. It is this order and award, which is questioned in the appeal/cross-objection. 6. Accident in question, injuries sustained and the issuance of the policy to offending vehicle are not in dispute. Hence these facts are not delved upon on this appeal. 6. Having heard the learned advocates appearing for the parties, this court is of the considered view that following substantial questions of law would arise for consideration. i) Whether Commissioner for Workmen’s Compensation was justified in assessing loss of earning capacity of the claimant at 85%? -6- ii) Whether Commissioner for Workmen’s Compensation was justified in awarding interest at the rate of 12% pa from 30.03.2008? (one-month after the date of the accident) 5. On account of the road traffic accident that occurred claimant came to be treated at Haven Government Hospital and he was referred to Karnataka Institute of Medical Science, at Hubli for further treatment. Since injuries sustained by the claimant was grievous in nature, claimant admittedly did not get admitted at KIMS hospital at Hubli but got admitted to Shakuntala Memorial Hospital according to claimant. The wound certificate came to be produced and marked as Ex.P-5, wherein it is reflected that claimant has suffered head injury and it is described as “diffused exonal brain injury traumatic sub aracnolo hemorrhage”. The Doctor who has issued disability certificate namely Dr.Somashekhar Virupakshayya Hiremath has examined as PW-2. As per disability certificate Ex.P-8, it has been stated therein that claimant was in intensive care unit and was on artificial respiration with “arcastromy operation” and in -7- conclusion it is opined by the Doctor that claimant is having permanent and physical disability of 85% to 90%. The said doctor has tendered his evidence and it has been stated by him in the cross-examination that as per C.T. Scan report there was blood clot in the brain. It is also stated in evidence that claimant was having intermittent convulsions. Doctor’s evidence also refers that right eye of the claimant was injured and there is imbalance in the eye ball movement resulting in improper vision. The suggestion made to the doctor that there is no disability as opined by him has been specifically denied. 7. Admittedly the insurer has not sought for referring the claimant to any other doctor nor any other doctor has been examined on behalf of the insurer to disprove the contents of Ex.P-8 or to disprove the evidence tendered by doctor as per Ex.P-2. On considering the medical evidence on record and also documents produced by the claimant, Commissioner has assessed permanent physical disability at 85%. The said finding cannot be held either to be on the higher side or contrary to medical evidence available on record. Hence, same deserves to be affirmed. Accordingly it is -8- affirmed. The question No.1 formulated herein above is answered in favour of the claimant and against the insurer. Re.: Question No.2: 8. In so far as grant of award of interest is concerned, the said issue is no more res-integra, in view of law laid down by the Hon’ble Apex Court in the case of Oriental Insurance Company Vs. Mohd. Nasir & Anr. reported in AIR 2009 SCW 3717. Hence, interest as awarded by the Hon’ble Apex Court in the above said case has to be awarded. Compensation awarded by the Commissioner for Workmen’s Compensation is hereby modified and it is held that claimant would be entitled to interest at the rate of 7½% per annum from the date of claim petition till date of award and at the rate of 12% per annum from the date of award till date of payment/realisation whichever is earlier. Accordingly, question No.2 is answered partly in favour of the claimant. 9 In so far as enhancement of compensation sought for in the cross-objection filed by claimant, on the ground that disability is to be treated as 100% functional disability -9- also cannot be accepted, for the reasons assigned herein above based on the evidence tendered by the doctor. In so far as the contention regarding the income of the claimant to be taken at Rs.4,000/- as contended by the claimant is also without merit, for the reason that claimant has not made any endeavor to establish and demonstrate as to the salary that was being paid by his employer by producing any cogent evidence and as such finding of the Commissioner cannot be found fault with it. As such the cross-objection also deserves to be rejected on these claim except to the extent of award of interest as discussed herein above. In view of the above discussions, following order is passed: ORDER i) MFA No.20216/2008 is hereby dismissed. ii) MFA Crob.No.789/2010 is allowed in part and question No.2 is answered in favour of the cross- objector-claimant. iii) It is made clear the that claimant would be entitled to interest at the rate of 7¼% per annum from the date of claim petition till date of award and at the rate of 12% per annum - 10 - from the date of award till the date of payment/realization whichever is earlier. iv) No order as to costs. v) The amount in deposit is ordered to be transmitted to the jurisdictional Commissioner for Workmen’s Compensation for being disbursed in accordance with order and award passed by the Commissioner forthwith. vi) The registry to draw award accordingly. JUDGE VNP*