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2021 DIGILAW 702 (KAR)

Divisional Manager National Insurance Co. Ltd. v. Basavaraj S/o. Basanna

2021-06-23

P.KRISHNA BHAT

body2021
JUDGMENT : These appeals are at the instance of the insurer calling in question the legality of the award dated 30.07.2010 in WCA No.36/2008, 33/2008, 34/2008, 35/2008, 37/2008 and 38/2008 passed by the learned Commissioner for Workmen’s Compensation, Koppal. 2. Brief facts are that, claimant Tirupati Reddy was the driver, claimant Nagaraj son of Thippanna was the cleaner, claimant Nagaraj son of Siddanna, claimant Basavaraj son of Basanna, claimant Shivakumar son of Thipperudrappa and claimant Suresh son of Mallanna were all working as ‘hamalis’ in lorry bearing registration No.AP27/V7121 owned by respondent No.1 – Munirathnam (before the learned Commissioner) and insured with the appellant herein. It is stated that on 02.10.2007 as per the directions of respondent No.1 – Munirathnam, they had unloaded maize in Challakere and while they were returning to Bellary at about 2.00 a.m., on account of rash and negligent driving of the driver, the lorry in question dashed to another lorry bearing No. TN28/L9856 near Tammenahalli on S.H.19 resulting in injuries to all the claimants. It is stated that initially they had taken treatment in Toranagallu and also at Korlagundi Primary Health Centre. 3. In the claim proceedings before the learned Commissioner, respondent No.1 – Munirathanam appeared and filed a written statement admitting employer employee relationship between him and the claimants herein and their wages as well as the factum that the accident resulting in injuries took place during the course of and arising out of the employment. 4. During the enquiry claimants examined themselves and also one qualified medical practitioner – Dr. Lakshminarayana as a witness. Ex.P.1 to P.21 were also marked. Ex.P.4, Ex.P.7, Ex.P.9, Ex.P.11, Ex.P.13 and Ex.P.15 are the wound certificates issued by the Government Hospitals in respect of the claimants herein where they were initially taken for treatment. 5. The appellant did not examine any witnesses and no documents were marked for them. Ex.P.2 was the charge sheet and Ex.P.5 was the driving licence held by the claimant Tirupati Reddy. 6. Upon consideration of the materials produced and the evidence let in, learned Commissioner answered the points arising for consideration in the proceedings in favour of the claimants and against the appellant and awarded compensation of Rs.1,32,602/to claimant Tirupati Reddy, Rs.1,07,021/to Nagaraj son of Tippanna, Rs.1,38,765/to Nagaraj son of Siddanna, Rs.1,17,891/to Basavaraj, Rs.1,02,243/to Shivakumar and Rs.1,18,941/to Suresh respectively, with interest thereon at 12% p.a. 7. Learned counsel for the appellant vehemently contended that the finding of the learned Commissioner that employeremployee relationship between respondent – Munirathnam and the claimants herein had been established is not supported by the evidence placed before the learned Commissioner. He further contended that the assessment of the loss in earning capacity made by the learned Commissioner is also based on no evidence. In support of the above two submissions, learned counsel contended that no documents were produced to show that the claimants were working in the lorry which was insured with the appellant and further that the qualified medical practitioner – Dr. Lakshminarayana, examined as witness was not an Orthopedic Surgeon and further that his licence had been suspended. 8. I have heard Sri. B.S.Sangati, the learned counsel for the claimants – respondents in detail. 9. I have given my anxious consideration to the submissions made on either side and also I have perused the records of the case. 10. There is no dispute about the legal position that in exercise of the power under Section 30(1) of the Workmen’s Compensation Act, 1923, this Court should not examine the records as if it is a Court of first appeal. Similarly, merely because another view can be taken on the same evidence, interference with the finding of the learned Commissioner is not called for if the view taken on the evidence by the Commissioner is reasonable and it is not a finding based on no evidence. Hon’ble Supreme Court has made the said position of law amply clear in a decision reported in (2017)1SCC45–Golla Rajanna and others vs. Divisional Managerand another. After extracting Section 30 of the Employees Compensation Act, the Hon’ble Supreme Court has observed as follows: “9. The Workmen’s Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the 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. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmen’s Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmen’s Compensation Commissioner. 10. Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.” 11. There is no dispute about the fact that respondent No.1 is the R.C. owner and insured in respect of the lorry bearing registration No. AP.27/V7121 which has met with an accident resulting in injuries to the claimants. He has filed written statement before the learned Commissioner clearly admitting employer employee relationship between him and the claimants. The claimants have given evidence to the said effect. On consideration of the same, learned Commissioner has recorded a finding that the employer employee relationship as between the respondent No.1 – insured and the claimants has been established. Ex.P.2 is the charge sheet filed by the Police in this case. The charge sheet also shows claimant No.1 – Tirupati Reddy as the accused and the rest of the claimants as C.W. 8 to C.W.12. In that view of the matter, the finding given by the learned Commissioner on the aspect of employeremployee relationship being fully supported by evidence produced before the learned Commissioner, no substantial question of law arises for consideration in regard to the same and accordingly, I reject the contentions of the learned counsel for the appellant on this score. 12. The next contention advanced by the learned counsel for the appellant is that, the assessment of loss in the earning capacity made by the learned Commissioner is upon the appraisal made by one Dr. 12. The next contention advanced by the learned counsel for the appellant is that, the assessment of loss in the earning capacity made by the learned Commissioner is upon the appraisal made by one Dr. Lakshminarayana whose integrity as a qualified medical practitioner is highly suspect, and in this behalf he submits that his licence to practice has been suspended and he is facing enquiry. However, perusal of the wound certificates issued by independent medical officers of Government Hospital which are at Exs.P.4, P.7, P.9, P.11, P.13 and P.15 clearly show that, claimants had all suffered fractures of the radius, ulna and tibia and fibula. These claimants require deft maneuverability of their upper and lower limbs for discharging their work as driver, cleaner and ‘hamalis’. Perusal of the award also shows that learned Commissioner has not blindly accepted the assessment made by Dr.Lakshminarayana and he has come to his own conclusion on appraisal of the wound certificates and the evidence and has fixed the loss of earning capacity of claimant No.1 – Tirupati Reddy, the driver at 30%, claimant No.2 Nagaraj the cleaner at 25%, claimants No.3 Nagaraj, Basavaraj, Shivakumar and Suresh who are all ‘hamalis’ at 35%, 30%, 25% and 30% respectively. It cannot be said that such assessment made by the learned Commissioner of the loss of the earning capacity is based on no evidence and it is perverse. Needless to say, this Court gets jurisdiction to interfere with the findings of the learned Commissioner only if it comes to the conclusion that the finding of the learned Commissioner is based on no evidence or it is perverse. On the materials that are available on record, it cannot be said that finding of the learned Commissioner on this aspect is based on no evidence and such being the case, no substantial question of law arises in this case and accordingly, I reject the contentions of the learned counsel for the appellant. 13. Consequently, there is no merit in these appeals and they are liable to be dismissed. Hence, the following: 14. The above appeals are dismissed. The amounts in deposit before this Registry shall be transmitted to the Court of learned jurisdictional Senior Civil Judge forthwith along with the records. In view of disposal of the appeals, all pending interlocutory applications do not survive for consideration and they are accordingly dismissed.