- 1 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.24515 OF 2013 (WC) BETWEEN: SRI KESU S/O. POMU RATHOD, AGE: 51 YEARS, OCC: CONTRACTOR, R/O. 1ST CROSS, PLOT NO.62, VEERABHADRA NAGAR, BELAGAVI. …APPELLANT (BY SRI R.H. ANGADI, ADVOCATE) AND: SHETTEPPA SHIVAJI BANDIWADDAR, AGE: 30 YEARS, OCC: NIL, R/O: BENCHNAMARADI, TQ: GOKAK, DIST: BELAGAVI. …RESPONDENT (BY SRI HANAMANT R.LATUR, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30 (1) OF THE WORKMEN’S COMPENSATION ACT, 1923, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05.04.2013 IN KA.PA.KA./S.R. NO.112/2005 ON THE FILE OF COMMISSIONER FOR WORKMANS COMPENSATION, SUB DIVISION-1, BELAGAVI AT BELAGAVI AND DISMISS THE CLAIM PETITION WITH COST THROUGHOUT BY ALLOWING THE ABOVE APPEAL. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though this appeal is listed for admission, with consent of learned counsel for the parties, it is taken up for final disposal. 2. This appeal is filed by the employer challenging the judgment and award dated 05.4.2013, passed in Ka.Pa.Ka./S.R.No.112/2005, on the file of Commissioner for Workmen’s Employees Compensation, Sub-Disivion-I, Belgaum (for short, ‘Commissioner’), questioning the order and award passed by the Commissioner. 3. The claimant/injured filed claim petition on the reason that he was working as employee under the employment of appellant/employer on daily wage basis and was getting wage of Rs.100/- per day and was aged 30 years at the time of accident. The claimant was resident of Benachanamaradi village, Gokak Taluka, Belgaum district. The Appellant, who was arrayed as respondent before the Commissioner, is the - 3 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 contractor/employer of claimant. It is alleged that, on 07.5.2004, when claimant was doing construction work i.e., pinching and cut fitting work, fallen from height in a ditch. Due to which, claimant sustained fracture of tibia and fibula to his right leg. Therefore, filed claim petition for seeking compensation. 4. On account of employment and injuries sustained by claimant out of and in the course of employment, the learned Commissioner has awarded a compensation of Rs.1,65,118/- along with interest at the rate of 12% per annum from one month after the date of accident till the date of realization. 5. Learned counsel for the appellant submitted that though the incident occurred on 07.5.2004, but complaint was lodged on 30.11.2005. Therefore, it belies the incident. Further submitted that claimant was not working as employee under him. Without considering all these facts, the learned Commissioner has erroneously awarded compensation. Therefore, prays for setting aside the judgment and award passed by the learned Commissioner. - 4 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 6. On the other hand, learned counsel for the respondent/claimant justified the order and award passed by the learned Commissioner. 7. I have heard the arguments of learned counsel for the parties and perused the material available on record including the Commissioner records. The points that arise for consideration of this appeal are as under: a) Whether, under the facts and circumstances involved in the case, the claimant proved that while he was working as a coolie, i.e., pinching and cut fitting work under the employment of appellant, he had sustained employment injuries i.e., fracture of right tibia and fibula on 07.5.2004, he is entitled for compensation? b) Whether, under the facts and circumstances involved in the case, the judgment and award passed by the Commissioner requires any interference by this Court? 8. In the present case, claimant is claiming to be an employee working under the employment of appellant- contractor. The appellant has obtained contract work for - 5 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 construction of Malatavad L.P.Kere at Malatavad village in Chandgad Taluk, Kohlapur district. On 07.05.2004, when claimant was working as coolie, was accidentally fallen in a ditch and sustained fracture of right tibia and fibula. The incident occurred on 07.5.2004 and complaint was given before the police on 30.11.2005 (Ex.P3), there is a delay of more than 1 and ½ year. But, just because there is a delay, is not a ground to dismiss the claim petition. Whether claimant sustained employment injuries or not during the course of employment is to be ascertained from other evidence on record adduced by both the claimant and appellant/respondent. 9. Ex.P1 is follow-up card issued by the District Hospital, Belagavi, in which, it is stated that claimant was admitted to hospital on 08.5.2004 with diagnosis of fracture of tibia and fibula on his right leg. This is one of the circumstances that claimant has suffered fractural injures on 07.05.2004 and he was admitted to the District Hospital Belagavi. Further, Ex.P2 is medico legal certificate issued by the Ganga Surgical and Fracture Clinic, Gokak, - 6 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 in which, claimant was admitted to hospital on 02.7.2004, with history of fall in a ditch two months back and complaints of pain in right leg. It is diagnosed that claimant has suffered fracture of tibia and fibula and has taken treatment initially at Civil Hospital, Belagavi. This is another circumstance that claimant has suffered injury i.e., fracture of tibia and fibula on his right leg for about two months before he was admitting to hospital for higher treatment. Ex.R1-4 is discharge summary of case sheet, issued by the District Hospital, Belagavi, with history that claimant was admitted to hospital on 08.05.2004 and discharged on 10.5.2004 along with history of fall in a ditch at around 3.00 a.m., when he went to attend nature’s call. 10. Learned counsel for the appellant/employer submitted that claimant has sustained injuries while attaining nature’s call and also submitted that claimant was admitted to hospital with history that he fell in a ditch and sustained injuries. It is quite natural to attend nature’s call during working hours from morning to - 7 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 evening. When claimant was at the spot of Chandgad Taluk, Kohlapur district, working as a coolie for the purpose of construction of Malatavad L.P.Kere, under the employment of appellant, hence, it is cleared that claimant has sustained injuries out of and in the course of employment. Therefore, all these evidence unequivocally proved on all its preponderance of probabilities that claimant has suffered injuries out of and in the course of employment as above discussed. Therefore, there is no merit in the appeal to state that claimant has not sustained employment injuries. 11. The Learned Commissioner by adopting monthly wage of Rs.3,000/- and applying relevant factor according to age of claimant and holding disability at 45%, has awarded compensation of Rs.1,60,920/- along with interest at the rate of 12% per annum from one month after the date of accident till the date of realization, which is found to be correct parameters. Therefore, there is no need to make any interference in the order and award passed by the learned Commissioner. This Court does not - 8 - NC: 2025:KHC-D:2359 MFA No. 24515 of 2013 find any perversity or an error in finding recorded by the Commissioner with regard to entitlement of compensation by the Commissioner. 12. Therefore, the appeal is liable to be dismissed by answering point No.1 in affirmative and point No.2 in negative. 13. For the aforementioned reasons, this Court does not find any merit in the appeal and the same is accordingly dismissed. 14. The amount in deposit, if any, shall be transmitted back to the Trial Court along with records. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 1 Sl No.: 38