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Karnataka High Court · body

2019 DIGILAW 2197 (KAR)

RAZAK v. T. KONDA REDDY

2019-11-21

ASHOK G.NIJAGANNAVAR

body2019
JUDGMENT 1. Though this appeal and cross objection are listed for orders on IA, with the consent of learned counsel for both the parties, they are heard and taken up for final disposal. 2. The appellant-Insurance Company has assailed the judgment and award passed in WC No.84/2008 dated 23.04.2011 passed by the Labour Officer and Commissioner for Workmen Compensation, Koppal. Whereas, the respondent-claimant in the said case has filed cross-objection seeking for enhancement of compensation and awarding a total compensation of Rs.3 lakhs with interest from the date of the accident till realization. By the said judgment and award, the Commissioner for Workmen Compensation has awarded a total compensation of Rs. 1,42,619/- with interest at 12% per annum after one month from the date of judgment. 3. Being aggrieved by the same, the respondent/ claimant has challenged the impugned judgment and award on issue of notional income of the workman considered by the Court below at Rs.3,000/-per month. 4. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the learned Commissioner for Workmen Compensation. 5. The facts briefly stated are that the petitioner/claimant has filed a claim petition on account of the injuries sustained in the accident occurred on 4.5.2008. The petitioner/claimant was working as a cleaner of the lorry, thus, there was a relationship of employer and employee between the respondent No.1 and claimant. On the date of the accident, the claimant was on duty as a cleaner of the lorry and the said lorry was about to load sand at the Mokage village; in the early morning, at about 4'o clock, the said lorry was parked on the road side. At that time, another lorry was also parked beside the said vehicle. The claimant and another cleaner of the lorry slept in front of the lorry, thereafter, at about 5 p.m., the driver of the lorry without informing the claimant or without making any sound, all of sudden drove the vehicle. As a result of which, the claimant sustained grievous injuries and immediately he was taken to VIMS Hospital, Ballad. On the complaint filed by the claimant, the police have registered the case. Due to the injuries sustained in the accident, he has sustained disability and he is unable to do work that he was doing earlier. As a result of which, there is loss of earning capacity. On the complaint filed by the claimant, the police have registered the case. Due to the injuries sustained in the accident, he has sustained disability and he is unable to do work that he was doing earlier. As a result of which, there is loss of earning capacity. The claimant approached respondent No. 1-owner of the lorry for compensation but his demand was not fulfilled. 6. In pursuance of the notice, respondent No.2-Insurance Company appeared before the learned Commissioner for Workmen Compensation and filed objections denying the averments made in the claim petition and also specifically contended that the Insurance Company is not liable to pay the compensation. On the basis of the pleadings, the learned Commissioner for Workmen Compensation framed the following issues: xxxxxxxxxxxxx 7. In order to substantiate the claim, the claimant got examined himself as PW1 and also examined Medical Practitioner as PW2 and marked the documents as Exs.P1 to P10. The Manager, legal Section of respondent-Insurance Company got examined as RW1 and one document marked as Ex.R1. 8. On the basis of the oral and documentary evidence placed on record, the learned Commissioner for Workmen Compensation answered the issues in the affirmative and has come to the conclusion that there was relationship of employee and employer between the claimant and respondent No.1 and the claimant sustained injuries during the course of employment. Further, the respondent-Insurance Company was directed to pay compensation of Rs. 1,42,619/- along with interest at the rate of 12% per annum after one month from the date of the judgment and also directed the respondent No.2-Insurance Company to satisfy the award. 9. Being aggrieved by the judgment and award passed by the Commissioner for Workmen Compensation, the insurance company has preferred an appeal on the following grounds: a. The owner of the lorry has not paid additional premium to cover the risk of the cleaner in the lorry. b. The injured was not a workman under respondent No. 1-employer. c. The finding given by the Commissioner for Workmen Compensation regarding disability assessed at 35% is not correct and justified. d. The notional income of the claimant taken at Rs.4,000/- per month is contrary to the statutory provisions of the Minimum Wages Act. 10. b. The injured was not a workman under respondent No. 1-employer. c. The finding given by the Commissioner for Workmen Compensation regarding disability assessed at 35% is not correct and justified. d. The notional income of the claimant taken at Rs.4,000/- per month is contrary to the statutory provisions of the Minimum Wages Act. 10. Based on the above grounds, the Insurance Company has formulated the following substantial questions of law: a. Whether the WCC has followed Section 4(i) C (ii) of WCA in determining the loss of earning capacity? b. Whether the Court below has justified in fixing the liability even the policy does not cover the risk of the cleaner? c. Whether the Commissioner below was justified in considering the loss of earning capacity is to the tune of 35%? d. Whether the Commissioner below was justified in considering the monthly income of Rs. 4,000/- per month? e. Whether the Court below is justified in directing the appellant-insurance company to pay the compensation amount? f. Whether the Court below is justified in fastening the liability on the appellant insurance company? 11. The claimant has preferred cross-objection on several grounds and two substantial questions of law have been formulated which are as under: a. Hasn't the Commissioner erred in taking the income of the employee at Rs.3,000/- instead of Rs.4,000/-? b. Hasn't the Commissioner erred in awarding the interest at 12% per annum one month from the date of judgment instead of one month from the date of accident? 12. The first and foremost contention is whether the cross-objection filed by the claimant is maintainable on the ground of limitations. It is an admitted fact that here is delay of 1987 days in filing the cross-objection. The Insurance Company has objected for condonation of the delay on the reason that there are no valid grounds for preferring the cross-objection after lapse of 1987 days. In view of the provisions under Order XXI Rule 42 of CPC, the claimant/ respondent ought to have filed an appeal/cross-objection within period of 30 days from the date of service of notice, but the claimant was not at all diligent in filing the appeal/cross-objection. There is no justification whatsoever. 13. As against the said contention, the learned counsel for the claimant strenuously contended that the generally limitation period starts from the date of admission of the appeal. There is no justification whatsoever. 13. As against the said contention, the learned counsel for the claimant strenuously contended that the generally limitation period starts from the date of admission of the appeal. Since the present matter is at the stage of admission, the question of condonation of delay does not arise. However, by way of abundant caution, the present application is filed. 14. In support of the said contention, learned counsel for the claimant has relied on the decision of the Honble Supreme Court in the case of Mahadev Govind Gharge and Others reported in (2011) 6 SCC, wherein it is held that the Cross-objections should be filed within period of one month from the date of service of notice or within such further time as the appellate Court may allow depending on facts and circumstances of given case-Courts may condone delay in interest of justice unless cross-objector is unable to furnish reasonable or sufficient cause therefore. 15. According to the claimant, there is a delay of 1987 days. The only reason for condonation of delay is that since the appeal is at the stage of admission, as such cross-objections were not filed. 16. Order XLI Rule 22 reads as under: Order XLI-Appeals from original decrees 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. (1) Any respondent, though he may not have appealed from any party of the decree, may not only support the decree [but may also that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month form the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to follow. [Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly on in part, in favour of that respondent.] 17. In view of the aforesaid provisions and guidelines, the cross-objections must be filed within one month from the date of service of notice on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may fit to allow the appeal. As could be seen from the records, the counsel for the respondent-claimant has appeared as long back in the year 2012 and he has not sought for any permission from the Court for filing of the objections. Under these circumstances, there are no valid reasons for condonation of delay. Thus, application for condonation of delay in filing the cross-objection deserves to be dismissed and the same is dismissed, consequently, the cross-objection is also dismissed. 18. In the present case, the appellant- Insurance Company has challenged the order passed by the Commissioner for Workmen Compensation under Section 30 of the Workmen Compensation Act. The appellant-Insurance Company has raised several substantial questions of law. The first contention is that the Commissioner for Workmen Compensation has not followed Section 4(i)(c)(ii) of the Workmen Compensation Act, in determining the loss of earning capacity to the tune of 35%. The second contention is that the liability fixed on the Insurance Company is not justified. The third contention is that the finding given by the Commissioner for Workmen Compensation in considering the monthly income of the workman at Rs.4,000/- is not justified. 19. Before adverting to the evidence on record and the findings given by the Commissioner for Workmen Compensation, it is necessary to consider the legal position. 20. The Honbe Apex Court in the case of Golla Rajanna Vs. Divisional Manager, United India Insurance Company Ltd. and another reported in ACJ 2017 1 at para-9 has held as under: 9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows: "30. 20. The Honbe Apex Court in the case of Golla Rajanna Vs. Divisional Manager, United India Insurance Company Ltd. and another reported in ACJ 2017 1 at para-9 has held as under: 9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows: "30. Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:- (a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (aa) an order awarding interest or penalty under Section 4-A; (b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any clam for the amount of an indemnity under the provisions of sub-section (2) of Section 12; or (e) an order refusing to register an memorandum of agreement or registering the same or providing for the registration of the same subject to conditions: Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than such as is referred to in clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees." 21. In a decision reported in 2019 ACJ 29 , in NEKRTC Vs. Sujatha, the Hon'ble Supreme Court has observed at paras-9 to 12 as under: "9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue/s his employer to claim compensation under the Act. 10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact. 11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lie only against the specific orders set out in clause (a) to (e) of Section 30 of the Act with a further rider contained in first proviso to the Section that the appeal must involve substantial question of law. 12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a Regular First Appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case." 22. In view of the principles laid down in the aforesaid decisions, it is not at all necessary to re-appreciate the evidence regarding the contentions raised by the learned counsel for the appellant-Insurance Company as the learned Commissioner for Workmen Compensation has assigned the reasons in detail by referring to oral and documentary evidence placed on record. While assessing the percentage of disability, the learned Commissioner for Workmen Compensation has relied on oral evidence of Orthopedic Surgeon and the certificate issued by him. The evidence of Orthopedic Surgeon reads under: The petitioner was diagnosed by me and found that he has fracture of inferior public rami both right and left side with complaints of injury to ureathric. The patient was treated conservative. The patient had regular follow-up at VIMS Hospital, Bellary and he came to me for further assessment of disability. He also had undergone treatment with urology doctor also. The patient was treated conservative. The patient had regular follow-up at VIMS Hospital, Bellary and he came to me for further assessment of disability. He also had undergone treatment with urology doctor also. The patient complains of tenderness present at the eliac fossae at glutura region, difficulty in standing, sitting cross leg, difficulty in squatting, in walking long distance, difficulty in doing personal activities, difficulty in riding vehicles, difficulty, in passing urine and stool. The x-rays shows mal-union eliac fossae fracture with complains of thickened bladder wall with significant residual urine with complains of stricture ureathro with bilateral mild hydronephrone. Considering the above, I am of the opinion that the patient has suffered partial permanent disablement to the extent of 40%. 23. Even though the Orthopedic Surgeon has stated that the percentage of disability to the extent of 40%, the learned Commissioner for Workmen Compensation has come to the conclusion that the percentage of disability is 35% considering the other relevant evidence. At this stage, there are no grounds to hold that the learned Commissioner for Workmen Compensation has awarded the compensation mechanically or without application of mind. There are no doubtful circumstances to show that the impugned order passed is perverse. The Commissioner for Workmen Compensation having regard to the evidence on record has given a finding that on the nature of injury and percentage of disability, it is purely a question of fact. There is no case for the Insurance Company that the finding is based on no evidence at all or that it is perverse. 24. Under Section 4(i)(c)(ii) percentage of disability needs to be assessed only by a qualified medical practitioner. In the instant case, the appellant-Insurance company has not made out any case that the doctor who issued the disability certificate is not a qualified medical practitioner. The certificate of disability issued by the doctor has been duly proved by examining the Orthopedic Surgeon who has issued the said certificate. The High Court has limited jurisdiction to consider only substantial questions of law. As such, this Court cannot venture to re-appreciate the evidence on record to give its own finding on percentage of disability for which also there is no basis as observed by the Honble Supreme Court in the case of Golla Rajanna (supra). 25. The High Court has limited jurisdiction to consider only substantial questions of law. As such, this Court cannot venture to re-appreciate the evidence on record to give its own finding on percentage of disability for which also there is no basis as observed by the Honble Supreme Court in the case of Golla Rajanna (supra). 25. The next contention would be regarding grant of interest on the awarded sum which is governed by Section 4-a of the Act, the question as to when the payment of compensation 'become due' and consequently what is the point of time for which the interest on such amount is payable as provided under Section 4-a (iii) of the Act remains no more res-integra and the same is settled by two earlier decisions and also in a recent decision of the Hon'ble Supreme Court reported in 2019 ACJ 29 (supra). In earlier decision, Prathap Narain Singh Deo Vs. Shrinivas Sabata reported in 1976 ACJ 141 (SC) it was held that the employer becomes liable to pay compensation as soon as the personal injury is caused to the workmen in the accident which arose out of and in the course of the employment. It was accordingly held that it is the death of the accident but not the adjudication of the case which is material. 26. In the present case, the learned Commissioner for Workmen Compensation has awarded the interest at the rate of 12% per annum from the date one month after the date of judgment. In my opinion, the said direction of the Commissioner in awarding the interest on the awarded sum is contrary to the law laid by the Hon'ble Apex Court in Pratap Narayansing Devo's case (supra) and in recent decision reported in 2019 ACJ 29 (supra). 27. The cross-objection filed by the claimant-respondent has been dismissed on account of inordinate delay. Even though the cross-objection of the claimant-respondent is rejected yet the question of awarding interest being pure question of law, this Court with a view to do substantial justice to the respondent considers it just and proper to modify the order of Commissioner in respondent's favour so as to make the same in conformity with the law laid down by the Hon'ble Supreme Court in the above two decisions. 28. 28. In the result, I proceed to pass the following: ORDER (i) MFA Crob No. 100074/2017 filed by the claimant is dismissed. (ii) MFA No. 23703/2011 filed by the Insurance Company is allowed in part. (iii) The judgment and award passed by the Commissioner for Workmen Compensation is modified to the extent that the cross-objector/claimant is entitled to compensation of Rs. 1,42,619/- along with interest at the rate of 12% per annum from one month after the date of the accident till realization. (iv) The entire award amount deposited before this Court is ordered to be transmitted to the Commissioner for Workmen Compensation along with the original records forthwith for disbursement.