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MFA No. 3287/2009 (WC)
Oriental Insurance Company Limited v. Mogannagowda
2010 SCC OnLine Kar 883
(Before H. Billappa, J.)
The Oriental Insurance Company Limited, Hassan, herein rep. by its Regional Office,
No. 44/45, Leo Shopping Complex, Residency Road Cross, Bangalore-560 025 by its
Regional Manager .…. Appellant
Sri. C.R. Ravishankar, Adv., for H.S. Lingaraj, Adv.
v.
1. Mogannagowda @ Ravi, Major, S/o Nanjegowda, R/at Bijapur Colony, Chikka
Arakalagudu Post, Kasaba Hobli, Arakalagudu Taluk, Hassan District.
2. N.R. Srinivas, Major, S/o Rangegowda, R/o K.E.B. Road, Arakalagudu, Hassan
District .…. Respondents
Smt. Kavitha H.C., Adv. for R1
R2-Served
MFA No. 3287/2009 (WC)
Decided on October 5, 2010
JUDGMENT
Heard the learned counsel for the parties.
2. This appeal is directed against the judgment and order dated 24-12-2008, passed
by the Commissioner for Workmen's Compensation, Hassan Sub-Division, Hassan, in
WCA/NF/CR. No. 106/2006.
3. By the impugned judgment and order, the Commissioner has granted
compensation of Rs. 2,54,148 with interest at 12% p.a. from thirty days after the
accident.
4. Aggrieved by that, the appellant-Insurance Company has filed this appeal.
5. In brief, the facts are:
The 1st respondent was working as a driver in the mini lorry bearing No. KA-13-A-266
nd
belonging to the 2 respondent. That on 13-5-2006, at about 2.30 p.m., when the
st
1 respondent was coming to Bangalore, near Heggadihalli gate, the lorry bearing No.
st
AP-31-W-3588 collided with the mini lorry driven by the 1 respondent. As a result of
st
that, the 1 respondent sustained injuries and claimed compensation. The
Commissioner has awarded a sum of Rs. 2,54,148 with interest at 12% p.a. from
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thirty days after the accident. Aggrieved by that, the appellant - Insurance Company
has filed this appeal.
6. The learned counsel for the appellant-Insurance Company contended that the
Commissioner has erred in taking the loss of earning capacity of the 1st respondent at
st
50%. He also submitted that the doctor has deposed that the 1 respondent has
suffered disability of 50% in respect of the right lower limb and in respect of the
whole body, the disability 10% and the Commissioner should have taken the loss of
earning capacity at 10%. He also submitted that the Commissioner has erred in
awarding interest at 12% per annum from thirty days after the accident and the
Commissioner should have awarded the interest at 7½ per annum from the date of
application till the date of award and thereafter, at 12% per annum from the date of
award till the date of payment. He, therefore, submitted that the impugned
judgement and order cannot be sustained in law.
st
7. As against this, the learned counsel for the 1 respondent submitted that the
Commissioner on proper consideration of the material on record has rightly taken the
loss of earning capacity of the first respondent at 50%. He also submitted that 1st
respondent has suffered fracture of right femur, tibia and fibula and the doctor has
st
deposed that the 1 respondent has suffered permanent disability of 50% in respect
of the right lower limb and therefore, the Commissioner has taken the loss of earning
capacity of the first respondent at 50% which is proper and therefore, it does not call
for interference.
8. I have carefully considered the submissions made by the learned counsel for the
parties.
9. The substantial question of law that arises for consideration is, “Whether the
st
Commissioner was justified in taking the loss of earning capacity of the 1
respondent at 50% and awarding interest at 12% per annum from 30 days after the
accident?”
st
10. It is relevant to note, the 1 respondent has suffered fracture of right femur, tibia
and fibula and other injuries. The doctor has deposed that the 1st respondent has
suffered permanent disability of 50% in respect of the right lower limb and the first
respondent is unable to do his daily activities. In his cross-examination, the doctor
has stated that the whole body disability is 10% but, loss of earning capacity is not
assessed. The Commissioner has taken the loss of earning capacity at 50% which is
on the higher side. In the circumstances of the case, it is proper to take the loss of
earning capacity at 30%. Accordingly, it is taken.
11. If the loss of earning capacity is taken at 30% and relevant factor of 211.79 is
applied to 60% of the wages i.e., Rs. 2400, then, the compensation payable comes to
Rs. 1,52,488.88 and it is rounded off to Rs. 1,52,500.
12. The Commissioner has awarded interest at 12% per annum from 30 days after
the accident, which is not correct. The Commissioner should have awarded interest at
7½ from the date of application till the date of award and thereafter, at 12% per
annum from the date of award till the date of payment as held in Oriental Insurance
Company v. Moh. Nazeer reported in 2009 AIR SCW Page 3770.
13. Accordingly, the appeal is allowed and the impugned judgment and order passed
by the Commissioner for Workmen's Compensation, Hassan Sub-Division, Hassan, in
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WCA/NF/CR. No. 106/2006 is modified granting compensation of Rs. 1,52,500
instead of Rs. 2,54,148 with interest at 7½% from the date of application till the date
of award and thereafter, at 12% per annum from the date of award till the date of
st
payment. The 1 respondent is permitted to withdraw the amount in deposit before
this Court to the extent he is entitled. The balance amount, if any, shall be refunded
to the appellant-Insurance Company.
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