IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 29^TH DAY OF JUNE 2021

BEFORE

THE HON’BLE MR. JUSTICE P. KRISHNA BHAT

MFA NO 101707 OF 2014 (WC)

BETWEEN

MOHAMMAD S/O. KASHIMSAB DESAI,

AGE: 58 YEARS, OCC: DRIVER (NOW NIL)

R/O. NO. 319, MUJAWAR GALLI,

BELGAUM.

...APPELLANT

(BY SRI. SANJAY S KATAGERI, ADV.)

AND

1 . SUMANGALA W/O. ASHOK HUBLI

AGE: MAJOR, OCC: BUSINESS

R/O. SHOP NO. 1, NEW VEGETABLE

MARKET, P B ROAD, BELGAUM

2 . THE DIVISIONAL MANAGER

ORIENTAL INSURANCE CO. LTD

DAMNEKAR ARCADE, DR AMBEDKAR ROAD, BELGAUM

…RESPONDENTS

(BY SRI. M.G. GADGOLI, ADV. FOR R2;

NOTICE TO R1 DISPENSED WITH)

THIS MFA FILED U/SEC.30(1) OF WC ACT, AGAINST THE ORDER

DTD:18.06.2013 PASSED IN LOB.WCA.SR.NO.96/2010 ON THE FILE OF

THE

LABOUR

OFFICER

AND

COMMISSIONER

FOR

WORKMENS

COMPENSATION, SUB-DIVISION-2, BELAGAVI.

2

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT

DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is at the instance of the claimant filed

under Section 30(1) of the Employees’ Compensation Act,

1923 (for short, ‘Act’) calling in question the award dated

18.06.2013 passed in LOB.WCA.SR.NO.96/2010 by the learned

Labour

Officer

and

Commissioner

for

Workmen’s

Compensation,

Sub-division-II,

Belgaum

(for

short,

‘Commissioner’).

2. Brief facts are that the claimant was working as

driver in lorry bearing registration No.KA22/D 5454 owned

by respondent No.1-Smt.Sumangala Ashok Hubballi and

insured with respondent No.2-Oriental insurance company

Ltd.,. It is stated that on 21.08.2009 while claimant was

driving the said lorry at Arebetta Ghati the vehicle met

with an accident resulting in fractur injuries to the left

thigh and tibia.

3. In

the

proceedings

before

the

learned

Commissioner, respondent No.1/Insured did not file any

3

written statement and respondent No.2/Insurer contested

the proceedings by filing written statement.

4. During the enquiry, claimant examined herself as

PW1

and

one

Dr.Annasahebh

a

qualified

medical

practitioner was examined as PW.2 and got marked Exs.P1

to P11. Respondent No.2 examined one of its official

witness and policy of insurance was marked as Ex.R2(1).

5. Upon consideration of the entire materials placed

before

him,

the

learned

Commissioner

awarded

a

compensation of Rs.97,722/- with interest thereon at 12%

per annum.

6. Learned

counsel

appearing

for

the

appellant/claimant

contended

that,

loss

of

earning

capacity assessed by the learned Commissioner is on the

lower side and the claimant being a driver and medical

evidence clearly shows that he has reduced physical

capacities to the extent of 50%. He also contended that

the learned Commissioner has fixed monthly wages of

claimant at Rs.3,526/-. Regard being had to the fact that

4

he was a driver, it should be fixed at Rs.4,000/- Per

month. He therefore submits that appeal is required to be

allowed.

7. Sri.M.G.Gadagoli,

learned

counsel

for

respondent/insurance company who is respondent herein

vehemently contended that the learned Commissioner

being final fact finding authority has applied his mind to

all the relevant aspects of the matter and has awarded

compensation of Rs.97,722/- by taking the loss of earning

capacity at 35% and wages at Rs.3,526/- per month which

is entirely based on evidence and therefore, the same is

not liable to be interfered with.

8. I have given my anxious consideration to the

submissions made on either side and I have perused the

case papers.

9. Insofar as the wages of the claimant is concerned,

he has pleaded in the claim petition that he was getting

monthly

wages

of

Rs.4,000/-

with

daily

Bhatta

of

Rs.150/-. Respondent No.1 who was the owner of the

vehicle has not disputed the same by filing the written

5

statement. The learned Commissioner in spite of the said

materials

available

on

record

has

relied

upon

the

notifi