4 —1— I N THE HIGH CO U RT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 7Th1 DAY OF JANUARY, 2011 BEFORE THE HONT3LE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.20443/ 2009(WC) BETWEEN: The Divisional Manager United India Insurance Co., Ltd., Maruti Galli, Belgaum. Appellant (By Sri.Ravindra R. Mane, Adv.) AND: 1. Sri.Allappa S/o Basappa Hulyal, Age:Major, 0cc: Coolie, R/o Mugalkod Tq: Mudhol, Dist: Bagalkot. 2. Shri. Goudappa S/o Appayyappa Patil, Age: Major, 0cc: Agriculture, R/o Soragavi, Tq: Mudhol, Dist: Bagalkot. Respondents (By respondents served.) This MFA is filed under Section 30(1)(a)(aa) of Workmen’s Compensation Act against the Judgment and Order dated 16.10.2008 passed in WCA.NO.99/2007 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Baglkot, awarding compensation of Rs.2,30,560/- along with the interest at the rate of 12% p.a. (LppLQ This itf6h coming on for admission this day, the court made the following: Ct flf Di fL -2- JUDGEMENT This appeal is by the insurer is filed questioning the order and award passed by the Commissioner for Workmen’s Compensation in WCA.No.99/2007 dated 16.10.2008. 2. Heard Sri.Ravindra R.Mane, learned counsel appearing for the appellant. He would contend that substantial question of law formulated in the appeal memorandum would arise for consideration on the ground, that claimant was travelling in a tractor trailer and he is not covered under insurance policy, even otherwise the Commissioner erred in construing the loss of earning capacity of the claimant at 65% and said assessment is not in consonance with disability said to have been suffered by the claimant on account of the injuries sustained in the accident in question. Respondents are served and un-represented. 3. Having regard heard the learned counsel for the insurer and on perusal of the order and award passed by Tribunal, it is noticed that in so far as the issue regarding the claim of the insurer with regard to passenger travelling in a tractor-trailer is concerned, said issue has been settled to by Division Bench by this Court in appeal MFA Nos.6555, 6556, 6557, 6558, 6559/2009 disposed of on 27.12.2010 in favour of the claimants and against the insurer and as such said contention is hereby rejected. 4. In so far as contention regarding assessment of the earning capacity of the claimants it is noticed that as per Exh.P-4 wound certificate, the claimant has suffered fracture of femur, right thigh, tibia of right hand, fibula of right hand and 4th metacarpal bone of right hand which is also found by X-ray report Exh.P. 11. In order to establish this fact claimant has also examined the doctor who has treated him and has issued disability certificate, namely, Dr.Udayakumar Naik. The said doctor on clinical and radiological examination has assessed the disability of the claimant at 70%. The Commissioner on considering the medical evidence available on record and on examinations of the evidence tendered by the claimant has not accepted the evidence of doctor in toto, but has come to a conclusion that loss of earning capacity of the claimant cannot exceed 65% and by adopting 65% as loss of earning capacity has computed the compensation payable 4— -4- claimant towards loss of earning capacity. The reasons given in awarding such compensation based on disability suffered by claimant is in proximity and in consonance with medical evidence tendered by claimant and there is no justification to deviate from the view taken by the Commissioner and as such I am of the considered view that Commissioner is fully justified in awarding compensation by considering the future loss of earning capacity of the claimant at 65%. In view of the above discussions there is no substantial question of law which requires to be formulated for being adjudicated. Accordingly, appeal is dismissed as devoid of merits. No order as to costs. The Registry to draw award accordingly. Amount in deposit is ordered to be transmitted to the jurisdictional Commissioner by the registry forth with. T[JTcT’ Mck/