- 1 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 6551 OF 2015 (WC) C/W MISCELLANEOUS FIRST APPEAL NO. 6552 OF 2015 (WC) MISCELLANEOUS FIRST APPEAL NO. 9391 OF 2015 (WC) IN MFA No. 6551/2015 BETWEEN: THE ORIENTAL INSURANCE CO LTD REGIONAL OFFICE, NO.44/45, LEO COMPLEX, RESIDENCY ROAD, BANGALORE-560 025, BY ITS DULY CONSTITUTED ATTORNEY …APPELLANT (BY SRI. RAVISHANKAR C R.,ADVOCATE) AND: 1. SMT SUNANDAMMA AGED ABOUT 43 YEARS, M/O LATE SOMASHEKAR, 2. SRI RANGASWAMY AGED ABOUT 21 YEARS, B/O LATE SOMASHEKAR, BOTH ARE R/AT C/O MUNIRAMAIAH, MARUTI FARM, AMRUTHNAGAR, Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 BELLARY ROAD, BANGALORE 3. SRI T L CHANDAN S/O SRI T.E.LAKSHMANA RAO, AGE MAJOR, OCC: BUSINESS, EKANATHAMMANAPALYA, SIRA GATE, TUMKUR, TUMKUR DISTRICT …RESPONDENTS (BY SRI. SURESH M LATUR FOR R1 & R2; SRI. SATISH KUMAR, ADVOCATE FOR R3) THIS MFA FILED U/S 30(1) OF THE WORKMEN COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 8.4.2015 PASSED IN E.C.A NO.317/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-18), PERUSE THE SAME AND SET ASIDE/ MODIFY THE JUDGMENT AND ORDER DATED 08.04.2015 AND EXANERATE THE LIABILITY TO PAY COMPENSATION FIXED ON THE APPELLANT INSURANCE COMPANY. IN MFA NO. 6552/2015 BETWEEN: THE ORIENTAL INSURANCE CO LTD REGIONAL OFFICE, NO.44/45, LEO COMPLEX, RESIDENCY ROAD, BANGALORE-560 025, BY ITS DULY CONSTITUTED ATTORNEY, ...APPELLANT (BY SRI. RAVISHANKAR C R.,ADVOCATE) AND: 1. SRI MANJUNATHA AGED ABOUT 33 YEARS, S/O SRI HANUMANTHAPPA, - 3 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 R/AT C/O MUNIRAMAIAH, MARUTI FARM, AMRUTHNAGAR, BELLARY ROAD, BANGALORE 2. SRI T L CHANDAN S/O SRI T E LAKSHMANA RAO, AGE MAJOR, OCC: BUSINESS, EKANATHAMMANAPALYA, SIRA GATE TUMKUR TUMKUR DISTRICT ...RESPONDENTS (BY SRI. SURESH M LATUR.,ADVOCATE FOR R1) THIS MFA FILED U/S 30(1) OF THE WORKMEN COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 8.4.2015 PASSED IN E.C.A NO.318/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU (SCCH-18), PERUSE THE SAME AND SET ASIDE/ MODIFY THE JUDGMENT AND ORDER DATED 08.04.2015 AND EXANERATE THE LIABILITY TO PAY COMPENSATION FIXED ON THE APPELLANT INSURANCE COMPANY. IN MFA NO. 9391/2015 BETWEEN: SRI. MANJUNATHA S/O.SRI.HANUMANTHAPPA, AGED ABOUT 26 YEARS, OCC:LOADER & UNLOADER IN LORRY R/AT, C/O.MUNIRAMAIAH, MARUTHI FARM, AMRUTHNAGAR, BELLARY ROAD, BANGALORE. ...APPELLANT (BY SRI. SURESH M LATUR.,ADVOCATE) - 4 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 AND: 1. SRI. T.L. CHANDAN S/O.T.E.LAKSHMANA RAO, AGE:MAJOR, OCC:BUSINESS, EKANATHAMMANAPALYA, SIRA GATE, TUMKUR- 572 101 2. THE REGIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., NO.44/45, LEO COMPLEX, RESIDENCY ROAD, BENGALURU- 560 025. ...RESPONDENTS (BY SRI. C R RAVISHANAKAR., ADVOCATE FOR R2 V/O DTD-13.08.21, NOTICE TO R1 IS D/W) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.04.2015 PASSED IN MVC NO.318/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, ALLOW THE APPEAL BY ENHANCING OF COMPENSATION OF RS. 9,15,250/- WITH 12% INTEREST PER ANNUM. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL COMMON JUDGMENT These appeals arise out of judgment and award dated 8th April 2015, passed by the III Addl.Senior Civil Judge, & M.A.C.T., Benglauru, (SCCH-18) and Commissioner under Employee Compensation Act 1923, - 5 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 (for short 'The Commissioner'), in ECA.Nos.317 and 318 of 2014, filed under Section 22 of the Employee's Compensation act, 1923 (for short, `E.C.Act'). MFA.No.6551/2015 and MFA.No.6552/2015 are filed by the Insurance Company and MFA.No.9391/2015 is filed by the claimant. All the appeals arise out of common judgment and award, therefore they are taken up together for disposal. 2. For the sake of convenience, the parties are referred to as per their ranking before the Commissioner. 3. The brief facts of the case are that, On 22.04.2007, at about 1.15 p.m., the deceased Somashekar and Manjunath, along with others were traveling in a lorry bearing registration No.KA-01-A-7148 as loaders and unloaders for delivering rice, wheat, and sugar etc., to a Fair Price Shop at Kuliyuru. When they reached near Ankanabhavi village, the driver of the lorry drove the vehicle in a rash and negligent manner, as a result, the - 6 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 lorry overturned, causing grievous injuries to the inmates of the vehicle. The Somashekar was shifted to Government Hospital, Huliyuru and thereafter to NIMHANS and Victoria Hospital, Bengaluru. While undergoing treatment, he succumbed to the injuries on 25.04.2007. 4. It is further the case of the claimants that, in the accident, one Manjunath sustained fractures and he was shifted to Government Hospital, Tumkur, and thereafter to Victoria Hospital, Bengaluru, wherein he took treatment as an inpatient. 5. The claimants in ECA.No.317/2014, who was mother and brother of the deceased Somashekar, contended that the deceased Somashekar was aged about 19 years and was employed by respondent No.1, as such, there existed an employer-employee relationship between them. Respondent No.1 - owner of the offending vehicle was paying salary of Rs.5,000/- per month to the Somashekar along with a daily bhata of Rs.50/-. The - 7 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 claimants contend that the death was caused out of and during course of employment. With these reasons, they prayed to award compensation of Rupees Ten lakhs. 6. ECA No.318/2014 is filed by the injured - Manjunath, contending that he was aged about 25 years. He was employed by the respondent No.1 as a loader/unloader in the lorry bearing registration No.KA-01- A-7148, and paying wages of Rs.5,000/- per month and a daily bhata of Rs.50/-. Due to the injuries sustained in the accident, he has suffered permanent disability and has lost his earning capacity. With these reasons, he prayed to award compensation of Rs.Six lakhs. 7. Respondent No.1 is the owner and respondent No.2 is the insurer of the lorry involved in the accident. While respondent No.1 remained ex parte, respondent No.2 filed its written statement denying the contentions of the claim petitioners. Respondent No.2 specifically disputed the existence of an employer-employee - 8 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 relationship between respondent No.1 with the deceased Somashekar and the injured Manjunath. It was further contended that they were gratuitous passengers traveling in a goods vehicle. On these grounds, Respondent No.2 prayed for dismissal of the claim petitions. 8. On the basis of rival contentions, the Commissioner framed necessary issues. 9. The Commissioner has clubbed both the cases and recorded the evidence. The claimants examined four witness as PW-1 to PW-4 and marked 20 documents as per Exs.P-1 to P-20. Respondent No.2 examined one witness as RW-1 and marked Exs.R-1 to R-4. 10. After hearing both parties and appreciating the materials available on record, the Commissioner awarded the compensation of Rs.4,36,320/- to the claimants in ECA No.317/2014 and Rs.84,750/- to the claimant in ECA No.318/2014, by the impugned award. - 9 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 11. In ECA.No.318/2014, the Commissioner assessed the age of the claimant as 25 years, his income as Rs.4,000/- per month, taken 60% of the some disability at 16.5% to the whole body, applied the factor 216.91 and assessed the compensation as Rs.83,300/-. Said findings are challenged in the present appeals. 12. I have heard the arguments of both the side. The contentions of the learned counsel for the insurer are that: (a) There was no evidence on record to prove that the deceased Somashekar and the claimant Manjunath were employed by the Respondent No.1 and there existed relationship of employer and employee between them. Respondent No.1 remained exparte and hence he has not admitted such relationship. Since the relationship itself was not proved, the question of awarding of compensation under the Workmen's compensation Act do not arise. - 10 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 (b) One of the loader and unloader of the lorry who sustained injuries in the said accident, has filed claim petition in MVC.No.2472/2010, before the Principal MACT and Chief Judge Small Causes Judge, Bengaluru. The said petition was dismissed vide order dated 07.10.2011. Copy the said order is produced at Ex.R2. The said Court did not agree with the contention of the claimant of that case that the said claimant was an employee working under respondent No.1, and held that he was a gratuitous passenger. The said claim petition was dismissed and it attained finality. In view of the same, this claim petition is not maintainable. With these reasons, prayed to set aside the impugned award. 13. The learned counsel for the claimants submitted that (a) The finding of the MACT in case MVC No. 2472/2010 would not affect the rights of the claimants in the present cases and it is not binding in the present cases. - 11 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 (b). The claimants examined in both the cases to establish that the claimant in ECA No.318/2014 and deceased Somashekar were an employee of Respondent No.1. In their testimony, they specifically stated that both the deceased Somashekar and the claimant in ECA No.318/2014 had been employed by Respondent No.1 as loaders and unloaders of his lorry, and that they were paid a monthly salary of Rs.5,000/-. (c) Respondent No.1 did not contest and not denied the said assertion. Since Respondent No.2 (the insurer) lacked the locus standi to dispute the relationship, and in the absence of any rebuttal evidence the trial Court correctly concluded that an employer-employee relationship had existed between the claimant and Respondent No. 1. (d) This findings of fact by the Commissioner was well-founded on the evidence presented and, as such, - 12 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 cannot be re-evaluated in the present appeals, under Section 30 of E.C.Act. (e) That in ECA.No.318/2014, the income as well as disability taken are on the lower side and evidence of the doctor i.e., PW.4 was not properly appreciated. The claimant has suffered permanent disability to the extent of 100%. Although PW-4 assessed the permanent disability to the whole body at 16.8%. The compensation had to be assessed on the basis of functional disability. PW-4 opined that the claimant could not perform any type of job, including work of a loader and unloader, which amounted to 100% permanent disability. Hence prayed to enhance the compensation, in ECA.No.318/2014 and dismiss the appeals of insurer. 18. Both these appeals were admitted to consider the following substantial question of law; (i) Whether the trial Court has erred in holding that their existed an employer and employee relationship between claimants and - 13 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 respondent No.1? (ii) Whether claimants are entitled to compensation without proving the said fact? 19. The PW.1 and PW.2 in their evidence have reiterated the averments made in the claim petition. In their cross-examination, nothing was brought out to disbelieve their evidence. The deceased and the injured claimant were working as a loader and unloader in the lorry belonging to respondent No.1. The competent person who had to deny the said relationship was respondent No.1, however, he remained absent despite notice being served upon him. Respondent No.2, the insurer, apart from denying the statement, did not produce any other evidence to disbelieve the case made out by the claimants. 20. It is pertinent to note that a criminal case was registered against the driver of the said lorry, in which three loaders and unloaders were traveling. It is revealed that on 22.04.2007, to distribute food grains and other - 14 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 articles to different Fair Price Shops, rice, wheat, sugar, and salt were loaded onto the lorry. The loaders and unloaders were seated in the lorry along with the cleaner and driver, who were going towards Tenkarbavi village. Due to negligent driving by the lorry driver, all four persons traveling in the lorry sustained injuries. Somashekar, while undergoing treatment, died on 25.04.2004, and the others sustained grievous injuries. These records corroborated the claimants’ case. 21. The deceased and claimant Manjunath were coolie workers serving as loaders and unloaders on a lorry. In such circumstances, the absence of documentary evidence cannot negate the claimants' contention. Mere failure to examine the vehicle owner by them does not disprove the employer-employee relationship with Respondent No.1. Furthermore, it would be unreasonable to expect the claimants to produce Respondent No.1 as a witness to support their own case when the claim petition has been filed against him. The burden to disprove the - 15 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 employment relationship lay with the respondents, who failed to discharge this obligation. 22. The Commissioner has considered these points and has rightly held that there existed an employer and employee relationship between claimant in ECA.No.318/2014 and deceased Somashekar with respondent No.1. There are no reasons to interfere in the said findings. Therefore the substantial question of law accordingly is answered against the insurer. 23. The MVC claim petition filed by one of the loaders and unloaders was rejected on the ground that the claimant was a gratuitous passenger in the goods vehicle. That order was passed by the MACT, while the present order was passed by the Commissioner under the ECA Act. The said order was not binding on the Commissioner under the ECA. Considering the facts and evidence led by the parties in that case, the claim was rejected by the MACT. Therefore, Ex. R2 would not prevent the Commissioner under the ECA from deciding the present two claim - 16 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 petitions independently. 24. In ECA No.318/2014, the claimant contended that the amount of compensation awarded was inadequate. Section 30 of the Workmen's Compensation Act is very clear; there was no need for this Court to re-appreciate the evidence and reach a different conclusion. It was sufficient to answer the substantial question of law. 25. The claimant contended that he was earning Rs.5,000/- per month as wages along with Rs. 50/- per day as bata. However, as stated above, there was no evidence to prove this. 26. The Commissioner considering Section 4 of the ECA Act has taken his income as Rs.4,000/- per month in both the cases that does not call for interference. 27. The learned counsel for the claimant vehemently contended that the disability assessed by the Commissioner was on the lower side. According to the - 17 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 evidence of PW-4, the claimant had been suffering from a disability to the extent of 100%, as he was unable to perform any type of work. 28. Section 4 of the ECA Act, pertains to awarding of the compensation and procedures to assess the compensation. In this case, the victim was injured, however, the same was not serious in nature. Under such circumstances the compensation has to be assessed as stated in Section 4 (B) and section 4 (C) (Explanation II). 29. According to Explanation II referred to above, for the purpose of sub-clause (ii), the assessment of loss of earning capacity was to be determined based on the evidence of a qualified medical practitioner, with reference to the percentage of loss of earning capacity in relation to the different injuries specified in Schedule I. 30. In the present case, as per the evidence of PW- 4, the disability was assessed at 16.5% to the whole body. PW-4 also stated that, in view of this disability, it would have been difficult for the claimant to work as a loader and - 18 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 unloader in a lorry, or to carry out any other manual work. 31. Learned counsel for the claimant in ECA.No.318/2014 relied on the following judgments and submitted that in view of the aforesaid judgments, this Court has to assess the functional disability and award the compensation on that basis. (i) Secretary, Belgaum Club and another -vs- Prefulla and another,1 (ii) New India Assurance Co. Ltd., -vs- Maruti and another,2 (iii) National Insurance Co. Ltd., -vs- Hanumantharayappa and others,3 (iv) Tebha Bai and others -vs- Raj Kumar Keshwani and others,4 (v) H.S.Swarnalatha and others -vs- Vice Chairman & Managing Director, Karnataka State 1 2019 ACJ 1835 2 2018 ACJ 268 3 2015 ACJ 1229 4 2018 ACJ 2791 - 19 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 Road Transport Corporation,5 32. I went through the above-mentioned judgments. However, those judgments did not interpret the provisions of Section 4(B) and (C) of the ECA Act. Section 4(1)(c)(ii) provided that disablement was to be assessed in proportion to the loss of earning capacity, as determined by a qualified medical practitioner, permanently caused by the injury. Although the medical practitioner made a sweeping remark in his affidavit stating that the claimant was unable to perform any kind of work, including that of a loader and unloader, he did not assess the disability at 100% to the whole body. Instead, he assessed the permanent disability to the whole body at 16.8%. The intention of the legislature could be gathered from the manner in which disability was assessed under Schedule-I. However, Schedule-I did not specify how to assess disability with respect to particular injuries. For 5 2011 ACJ 990 - 20 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 instance, even in the case of amputation of both lower limbs, as per Schedule I, Sl. No. 11, the disability was to be considered at 90%. 33. In the present case, the claimant sustained a fracture of the pelvic bone and injuries to the lower limb, including a fracture of the right malleolus. Under such circumstances, the Commissioner under the Workmen's Compensation Act did not appear to have much discretion to determine the disability beyond the scope of medical assessment. 34. The next question was whether disability to the whole body or to a particular limb had to be considered for assessing compensation. The relevant legal provision— Section 4(1)(c)(ii), along with the explanation—was silent on this issue. Since the Act was a beneficial piece of legislation enacted for the welfare of workmen, and considering the evidence of PW-4 as well as the nature of injuries in the present case, I am of the view that the - 21 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 disability assessed to the particular limb, i.e., 21%, had to be taken into account for the calculation of compensation. 35. The Commissioner under Workmen's Compensation Act, considered the factor as 216.91 on the basis of age of claimant, which is 25 years. Income was taken as Rs.4,000/- per month and 60% of salary was deducted and disability was as 16%, the same is to be modified as 21%. On that basis the compensation is to be re-calculated Rs.2,400 X 216.91 X 21%= Rs.1,09,322.64 + Rs.1,500 (medical expenses) = Rs.1,10,822.64/- rounded off to Rs.1,11,000/-. 36. Respondent No.1 is the owner and respondent no.2 is the insurer of the offending vehicle, therefore, both are jointly and severally liable to pay the said amount as per the order passed by the Trial court. 37. Accordingly I pass following order. - 22 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 ORDER i. MFA.No.6551/2015 and MFA.No.6552/2015 are dismissed. ii. MFA.No.9391/2015 is allowed in part. iii. The judgment and award passed by the III Addl.Senior Civil Judge, & M.A.C.T., Benglauru, (SCCH-18), in ECA.No.317/2014 is confirmed and ECA.No.318/2014 is modified. iv. The claimant in ECA.No.318/2014 is entitled to compensation of Rs.1,11,000/- with interest at the rate of 12% per annum from 30 days after the accident (i.e.,21.05.2007) till its realization. v. The learned counsel for insurer submits that entire amount awarded by the Commissioner has already been deposited before this Court at the time of filing of the appeal. Therefore, the claimant in ECA.No.318/2014 is entitled for the interest only on the difference amount enhanced by this Court. vi. The amount in deposit shall be transmitted to the Commissioner under the ECA for - 23 - HC-KAR NC: 2025:KHC:30842 MFA No. 6551 of 2015 C/W MFA No. 6552 of 2015 MFA No. 9391 of 2015 disbursement. vii. Send back the trial Court records along with a copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE TIN List No.: 1 Sl No.: 10