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2012 DIGILAW 853 (KAR)

Sanaulla v. Oriental Insurance Co. Ltd.

2012-10-04

N.Ananda

body2012
JUDGMENT N. Ananda, J : MFA No. 1951/2009 is filed by claimant for enhancement of compensation. MFA No. 11624/2008 is filed by Insurance Company for reduction of compensation. 2. I have heard Sri C.R. Ravishankar, learned Counsel for Insurance Company and Sri Spoorthy Hegde N., learned Counsel for claimant. 3. As per medical evidence, claimant had suffered type 2 fracture of left tibia and he underwent surgery for reduction of fracture. The claimant was aged about 20 years at the time of accident. The claimant was a cleaner by occupation. He was sustaining by physical labour. The Commissioner for Workmen's Compensation having regard to medical evidence and assessment of permanent physical disability by the Medical Officer has assessed permanent physical disability vis-a-vis loss of earning capacity at 55%. The Commissioner for Workmen's Compensation while assessing permanent physical disability vis-a-vis loss of earning capacity has not referred to Schedule-I to find out loss of earning capacity in relation to injuries stated therein. It cannot be disputed that the injury suffered by claimant is a non-schedule injury, yet the claimant had suffered type II fracture of left tibia and fracture has malunited. There is restricted movement of left lower limb. This would materially interfere with the work of claimant as a Cleaner. 4. Having regard to facts and circumstances of the case. I assess permanent physical disability vis-a-vis loss of earning capacity at 40%. The other facts not being in dispute, claimant is entitled to compensation of Rs. 2,06,459/- (Rs.2,280/- x 226.38 x 0.40) with interest at 12% per annum from 27.07.2007 till the date of deposit. 5. In view of the above, I pass the follow- ORDER MFA No. 1951/2009 filed by claimant is dismissed. MFA No. 11624/2008 filed by Insurance Company is accepted in part. Compensation of Rs. 2,83,880/- awarded by the Commissioner for Workmen's Compensation is reduced to Rs. 2,06,459/- with interest at 12% per annum from 27.07.2007 till the date of deposit. The amount in deposit shall be transferred to the Commissioner for Workmen's Compensation at Chitradurga. If the amount deposited by Insurance Company is in excess of what has been awarded herein, the same shall be refunded to the Insurance Company.