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United India Insurance Co. Ltd. v. Golla Rajanna

Karnataka High Court

Nov 20, 2012

Judgment

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Factual and Procedural Background

These appeals were filed by the 2nd respondent (the Insurance Company) against a common judgment and order dated 16.02.2009 passed in six matters (WCA Nos. 229/2008 to 234/2008) on the file of the Commissioner for Workmen's Compensation-II, Bellary. The claimants in the original proceedings (respondent No.1 in each appeal) were travelling in a lorry bearing registration No. KA-37/0033 on 15.08.2008 near the curve near Daddanal Project near Banagana Palle in Andhra Pradesh. The Insurance Company did not dispute the occurrence of the accident or that the claimants were travelling in the vehicle; the principal dispute before the court was about the nature and extent of injuries and resulting disability attributed to each claimant. The Commissioner had accepted serious fractures and permanent disability percentages (ranging from 35% to 40%) for the claimants and awarded compensation accordingly. The Insurance Company challenged that finding in these appeals.

Legal Issues Presented

Whether the claimants had established, by admissible evidence, the nature and extent of the injuries and the permanent disability percentages awarded by the Commissioner.
Whether the Commissioner rightly relied upon wound certificates (issued by the Community Health Center) and disability certificates/X-rays dated several months after the accident to assess permanent disability.
Whether the Tribunal's awards of compensation (based on the higher disability percentages) should be modified in light of the documentary record and credibility of the certificates relied upon.

Arguments of the Parties

Appellant (Insurance Company)

The Insurance Company pointed out that the X-rays allegedly taken on the date of the accident (15.08.2008) at the Community Health Center were not produced before the Commissioner and that the Radiologist's reports for those X-rays were also not produced.
The insurer questioned the veracity and sufficiency of the documentary evidence supporting the serious fractures and high permanent disability percentages awarded by the Commissioner.
Implicit in the insurer's challenge was the contention that the wound certificates and subsequent documents were inadequate or possibly fabricated to create a false impression of severe injury and permanent disability.

Respondents / Claimants (petitioners before the Commissioner)

The claimants relied on wound certificates dated 15.08.2008 issued by the Community Health Center, Banagana Palle, and on disability certificates issued by Dr. Dinesh Gunde dated 01.12.2008 (including X-rays taken on that later date) to support their claims of multiple fractures and permanent disability (reported as 35%–40% for different claimants).
The claim petitions incorporated the disability certificates and the X-rays taken on 01.12.2008 as the basis for the assessment of permanent disability and loss of earning capacity.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined the documentary record placed before the Commissioner and proceeded through the following analytical steps, based only on the materials and findings in the opinion:

The court accepted that the accident involving the offending lorry occurred and that the claimants were traveling in the vehicle at the time; those facts were not disputed by the Insurance Company.
However, the court scrutinised the evidentiary basis for the specific and serious fractures and high percentages of permanent disability found by the Commissioner. The court observed that no X-rays taken on the date of the accident were produced before the Commissioner, nor were any Radiologist's reports for such X-rays produced.
The court noted that the only contemporaneous medical document was a wound certificate issued on 15.08.2008 by the Community Health Center. The court expressed surprise that the Community Health Center had issued such certificates referring to X-rays when (a) none of those X-rays were produced and (b) the Community Health Center apparently did not possess X-ray facilities.
The claimants instead relied on disability certificates and X-rays dated 01.12.2008 (about four months after the accident) issued by Dr. Dinesh Gunde. The court emphasized that those disability certificates were issued before the completion of three months and by a doctor who had not treated the claimants, and thus questioned their foundation.
The court observed an absence of hospitalization records, records of the nature or duration of treatment, follow-up documentation, or any evidence demonstrating that the claimed fractures caused the extensive hospitalization and multi-month treatment that the claimed injuries would ordinarily require.
On these bases, the court concluded that while the accident was genuine, the evidence did not satisfactorily establish that the claimants had suffered the specific severe fractures and the permanent disabilities of 35%–40% as found by the Commissioner. The court described the available documentary record (wound certificates and later disability certificates/X-rays) as insufficient and, to some extent, suggestive of a "make-believe situation."
Consequently, the court determined that the Tribunal's assessment of permanent disability was not supported by reliable evidence, and that the appropriate course was to modify the awards to reflect a considerably lower, uniformly-assessed disability of 5% to the whole body for each claimant, resulting in 5% loss of earning capacity for each.
The court then applied the chosen percentages and specified incomes/multipliers to calculate revised compensation for each claimant and compared those amounts with the awards previously granted by the Tribunal. The court retained the Tribunal's rate of interest (12% per annum) from the 30th day of the order until payment, and ordered adjustments of amounts on deposit accordingly.

Holding and Implications

ALL SIX APPEALS ALLOWED.

Direct consequences and orders made by the court (as stated in the opinion):

The court held that each claimant sustained a 5% disability to the whole body resulting in a 5% loss of earning capacity.
Revised compensation amounts (as calculated and stated by the court) for each claimant are:
- WCA No. 229/2008 (claimant Golla Rajanna): Rs. 23,279.55 (calculation shown as 3500 × 60% × 5% × 221.71), compared with the Tribunal award of Rs. 1,63,692/-. The claimant is entitled to this revised amount with interest at 12% p.a. as stated in the impugned judgment.
- WCA No. 230/2008 (S. Balaiah): Rs. 20,302.77 (3120 × 60% × 5% × 216.91), compared with the Tribunal award of Rs. 1,42,119/-. Payable with 12% p.a. interest as in the impugned judgment.
- WCA No. 231/2008 (M. Ramachandrad): Rs. 19,648.51 (3120 × 60% × 5% × 209.92), compared with the Tribunal award of Rs. 1,37,540/-. Payable with 12% p.a. interest as in the impugned judgment.
- WCA No. 232/2008 (Shikh Basha): Rs. 19,990.00 (3120 × 60% × 5% × 213.57), compared with the Tribunal award of Rs. 1,59,921/-. Payable with 12% p.a. interest as in the impugned judgment.
- WCA No. 233/2008 (Shankraiah): Rs. 19,648.51 (3120 × 60% × 5% × 209.92), compared with the Tribunal award of Rs. 1,57,188/-. Payable with 12% p.a. interest as in the impugned judgment.
- WCA No. 234/2008 (Tippeswamy): Rs. 25,190.00 (4000 × 60% × 5% × 209.92), compared with the Tribunal award of Rs. 1,76,333/-. Payable with 12% p.a. interest as in the impugned judgment.
The court ordered that the revised compensation amounts with interest be paid to the Commissioner for Workmen's Compensation, Bellary Sub-Division-2, and that any excess amounts in deposit be released in favour of the appellant (Insurance Company).
No broader precedent was declared in the opinion; the decision effects a factual and evidentiary reassessment of the six awards and adjusts compensation and deposits accordingly.

Show all summary ...

S.N Satyanarayana, J.:— The 2nd respondent Insurance Company in WCA. Nos. 229/2008 to 234/2008 on the file of Commissioner for Workmen's Compensation-II, Bellary, has come up in these appeals impugning the common judgment and order dated 16.02.2009 in these six appeals.

2. The ground urged in each of these appeal is that the claimants before the Commissioner who are respondent No. 1 in each of these six appeals are said to be employees of the 2 respondent, i.e owner of lorry bearing No. KA-37/0033 which is insured with the 2 respondent therein. The appellant in these appeals contend that the Commissioner has accepted the injuries suffered by the claimants in the accident said to have taken place on 15.08.2008 involving the lorry bearing No. KA37/0033 near the curve near Daddanal Project near Banagana Palle in Andhra Pradesh. The alleged incident involving the aforesaid vehicle is not disputed by the Insurance Company. It is also not disputed that the 1st respondent in each of these appeals is the petitioner before the Commissioner and were traveling in the said lorry at the time of accident. However, the dispute is in respect of nature of injuries suffered by the claimants.

3. The judgment impugned discloses that the petitioner in WCA.229/2008 namely, Golla Rajanna, who is Cleaner is said to have suffered the following fractures:

1. Fracture of Patella,

Fracture of upper end of Fibula,

2. Fracture of Rt radium and Ulna.//Following fractures:

Petitioner in WCA.230/08, namely, S. Balaiah, who is Loader/Hamali, is said to have suffered the following fractures:

1. Fracture of 5th and 6 ribs.

2. Linear fracture of left femur as per injury certificate.

Petitioner in WCA.231/08, namely, M. Ramachandrad, who is Loader, is said to have suffered the following fractures:

Fracture of upper tibia and fibula and 4 simple injuries.

Petitioner in WCA.232/08, namely, Shikh Basha, who is Loader is said to have suffered the following fractures:

1. Fracture of femur and fracture of 4 vertebra.

Petitioner in WCA.233/08, namely, Shankraiah, who is loader is said to have suffered the following fractures:

1. Fracture of humerous and fracture of clavicle and fracture upper end of radius and ulna and 3 simple injuries.

Petitioner in WCA.234/08, namely, Tippeswamy, who is driver is said to have suffered the following fractures:

1. Fracture of tibia and fibula and fracture of 5 and 6 ribs and 3 simple injuries.

4. According to the appellant Insurance Company, the injuries stated in the petition filed by each of them are so serious in nature that, according to the petitioners they were initially treated in Community Health Center, Banagana Palle wherein it is stated that X-rays of each one of them was taken and aforesaid fracture was seen. Incidentally, in the proceedings before the Commissioner none of these X-rays which was taken on the date of accident were produced. Similarly, Radiologists Report in respect of the said X-rays also is not produced.

5. However, in the petitions filed by them before the Commissioner, the claimants relied upon the Disability Certificates issued by one Dr. Dinesh Gunde and the X-rays that were taken by him as on 1.12.2008 i.e nearly after 4 months from the date of the accident, based on the said disability certificate and as well as the alleged X-rays said to have taken on that day claim petitions are filed. It is also stated that the said disability certificate and X-rays were based on the wound certificate issued to each of the petitioner by Community Health Center, Banagana Palle, giving particulars of the injuries said to have suffered by each one of them based on the X-rays taken on that day.

6. Though the X-rays taken initially were not produced before the Commissioner, what was available before the Commissioner was only the wound certificate issued on 15.8.2008 followed by disability certificate issued on 1.12.2008 for each of the petitioners and also the X-rays said to have taken on the date of issuing disability certificate, the Commissioner believing those documents has uniformly taken that the claimants in WCA. Nos. 229/08, 230/08, 231/08 and 234/08 have suffered permanent disability to the extent of 35% and claimants in WCA. Nos. 232/08 and 233/08 have suffered permanent disability of 40% and each one of them have suffered loss of earning capacity of equal percentage and proceeded to assess compensation for them by taking the income of the claimant in WCA.229/08 at Rs. 3,500/-, and for those in WCA.230/2008 to WC.233/08 at Rs. 3,120/- and so far as claimant in WC.234/08 is concerned wages of Rs. 4000/- and accordingly calculated the compensation payable to each of the claimants.

7. On going through the judgment impugned and also the material evidence available on record, this Court is surprised to know as to how the Community Health Center without looking into X-rays has issued the wound certificate stating that each one of the claimants have suffered injuries as stated in the wound certificate. If the injuries said to have suffered by the petitioners in each of the cases is looked into, it would have definitely resulted in their hospitalization atleast for minimum of 10 to 15 days. In the proceedings before the Commissioner, they have not produced any documents relating to their hospitalization.

8. It is further seen that the said injuries would have put them away from their job and for treatment and follow up treatment for the period of atleast 3 to 4 months. Surprisingly, there is nothing on record to show whether they were hospitalized during that period and what kind of treatment was given to them and how long they were under treatment and as on the date of filing of claim petitions what was their condition, nothing is seen. Surprisingly, even before completion of three months, the person who has not treated them has issued disability certificate on the basis of the wound certificate and also has given a generous opinion that the claimants have suffered the disability and as well as loss of earning capacity to the extent of percentage ranging from 35% to 40% by each one of them.

9. On going through the same, this Court is of the opinion that the accident appears to be true involving the offending lorry, but, the injuries said to have suffered by the claimants is not established, in as much as, there is no document on record to substantiate the same, except the wound certificates issued by the Community Health Center immediately after the accident. However, the said document also appears to be fabricated and fails in as much as, the X-ray stated in each of these certificate is not proved by any one of the petitioners before the Commissioner. Assuming for a moment that the X-ray of the claimant was taken, where it was taken and when it was taken is not forthcoming. Admittedly, the Community Health Center, are not provided with X-ray machines so as to take the X-ray and assess the nature of injuries suffered by the claimants. In that view of the matter, this Court feel that the entire exercise by the petitioners before the Commissioner is to create a make-believe situation to show that indeed in the said accident said to have taken place on 15.8.2008 they have suffered serious injuries which has resulted in permanent disability to the whole body of each ranging from 35% to 40% resulting in loss of earning capacity to equal percentage. In that view of the matter, this Court feel that the grounds urged by the Insurance Company in these appeals appears to be true and correct which is required to be upheld by this Court.

10. In that view of the matter, the common judgment and order passed by the Tribunal in these petitions before the Commissioner is required to be modified having regard to the nature of injuries and disability suffered by the claimants due to the accident. Accordingly, this Court holds that all the petitioners before the Tribunal have suffered disability to the extent of 5% to the whole body resulting in 5% loss of earning capacity.

11. Accordingly, by taking the income of the 1 claimant in WCA No. 229/2008 at Rs. 3,500/-, and loss of earning capacity is taken at 5%, the claimant would be entitled to compensation of Rs. 23,279.55 (3500 × 60% × 5% × 221.71) as against Rs. 1,63,692/- awarded by the Tribunal, which he is entitled to receive with 12% interest as stated in the judgment impugned.

12. Similarly, the claimant in WCA.230/2008 is entitled to received compensation of Rs. 20,302.77 (3120 × 60% × 5% × 216.91), as against Rs. 1,42,119/- awarded by the Tribunal, which he is entitled to receive with 12% interest as stated in the judgment impugned.

13. The claimant in WCA.231/08 is entitled to receive compensation of Rs. 19,648.51 (3120 × 60% × 5% × 209.92), as against Rs. 1,37,540/- awarded by the Tribunal, which he is entitled to receive with 12% interest as stated in the judgment impugned.

14. The claimant in WCA.232/08 is entitled to receive compensation of Rs. 19,990.00 (3120 × 60% × 5% × 213.57), as against Rs. 1,59,921/- awarded by the Tribunal, which he is entitled to receive with 12% interest as stated in the judgment impugned.

15. The claimant in WCA.233/08 is entitled to receive compensation of Rs. 19,648.51 (3120 × 60% × 5% × 209.92), as against Rs. 1,57,188/- awarded by the Tribunal, which he is entitled to receive with 12% interest as stated in the judgment impugned.

16. The claimant in WCA.234/08 is entitled to receive compensation of Rs. 25,190/- (4000 × 60% × 5% × 209.92), as against Rs. 1,76,333/- awarded by the Tribunal, which he is entitled to receive with 12% interest as stated in the judgment impugned.

17. Accordingly, all the six appeals filed by the Insurance Company are allowed. Consequently, all the six petitioners before the Tribunal who are 1 respondent in each of these appeals are entitled to receive revised compensation as stated above along with interest at 12% pa from the 30 day of the order till the date of deposit.

18. In view of the appeals being allowed, from out of the amounts in deposit the revised compensation with interest thereon is ordered to be sent to the Commissioner for Workmen's Compensation, Bellary Sub-Division-2, Bellary, and the excess amount is ordered to be released in favour of the appellant-Insurance Company.