THE MANAGER NEW INDIA ASSURANCE COMPANY LIMITED vs KUMAR

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HC-KAR
NC: 2026:KHC:58021
MFA No. 675 of 2013


CNR: KAHC010108912013



IN THE HIGH COURT OF KARNATAKA AT BENGALURU


TH
DATED THIS THE 14 DAY OF OCTOBER, 2026

BEFORE


THE HON'BLE MR. JUSTICE RAVI V HOSMANI

MISCELLANEOUS FIRST APPEAL NO. 675 OF 2013 (WC)

BETWEEN:

THE MANAGER NEW INDIA
ASSURANCE COMPANY LIMITED
1, SHANKAR HOUSE,
ND
2 FLOOR, MEKHRI CIRCLE,
BANGALORE.

BY ITS REGIONAL OFFICE
THE NEW INDIA ASSURANCE CO. LIMITED
"MAHALAKSHMI CHAMBERS"
ND
2 FLOOR, 9/2, M G ROAD
BANGALORE - 560 001
REP. BY ITS DEPUTY MANAGER.

…APPELLANT










[BY SRI BHARADWAJ K.R., ADVOCATE FOR
SRI PB RAJU & PS JAGADISH, ADVOCATES (VC)]
Digitally signed
by ANUSHA V
Location: High
Court of
Karnataka

AND:
1. KUMAR
S/O DODDASWAMY GOWDA
AGED ABOUT 30 YEARS
R/O MOODALAKOPPALU
HUNSUR TALUK
MYSORE DISTRICT - 570 001.

2. SRI R KUMAR
S/O RAMAIAH
ND
MAJOR IN AGE, 2 CROSS
NARASIPURA LAYOUT
VIDYARANYAPURA

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HC-KAR
NC: 2026:KHC:58021
MFA No. 675 of 2013


CNR: KAHC010108912013


BANGALORE - 560 097.
…RESPONDENTS
(BY SRI N KUMAR, ADVOCATE FOR R1;
V/O/C/DATED 30.08.2016 - SERVICE OF
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.10.2012 PASSED IN WCA/NFC/CR
NO-261/2007 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, MYSORE
DISTRICT, MYSORE, AWARDING A COMPENSATION OF RS.3,82,347/-
WITH INTEREST @ 12% FROM 16.07.2007.

THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

ORAL JUDGMENT

Challenging judgment and award dated 30.10.2012
passed by Labour Officer and Commissioner for Workmen
Compensation, Mysuru ( Commissioner ) in WCA/NFC/CR
no.261/2007, this appeal is filed.

2. Sri PB Raju, learned counsel for appellant submitted
that appeal was by insurer challenging award on liability as well
as on quantum of compensation.

3. Brief facts as per respondent-workman are that
workman claimed to be employed as driver by respondent no.1
( employer ) in Lorry no.KA-05-K-7955 belonging to him on

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HC-KAR
NC: 2026:KHC:58021
MFA No. 675 of 2013


CNR: KAHC010108912013


Rs. Rs.
monthly wages of 4,500/- with daily bhata of 25/- and as
per instructions of employer on 15.03.2006, when he was
driving Lorry filled with sand from Tipturu towards Mysuru, he
was traversing level crossing, loco pilot drove it in a rash and
negligent manner and dashed against Lorry causing accident.
In accident, he sustained fractures of both femurs as well as
back bone. Despite treatment, he did not recover fully and
sustained permanent partial physical disability and consequent
loss of earning capacity. Claiming compensation for same, he
filed application under Section 10 of Workman's Compensation
Act, 1923 ( WC Act ) against employer and insurer.

4. On contest, wherein claim was opposed on all
grounds, Commissioner framed issues and recorded evidence.
Claimant along with Dr.Kiran Kallaiah deposed as PWs.1 and 2
and got marked Exhibits P1 to P8. Insurer examined its official
as RW.1.

5. On consideration, Commissioner held occurrence of
incident in course of and out of employment as established and
determined age as 33 years attracting factor of 201.66, his
monthly salary as Rs.4,000/- but excessive loss of earning

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HC-KAR
NC: 2026:KHC:58021
MFA No. 675 of 2013


CNR: KAHC010108912013


capacity at 79%, determined total compensation payable at
Rs.
3,82,347/-. Aggrieved thereby, this appeal was filed.

6. It was firstly submitted that as on date of accident,
claimant was driving a sand filled Lorry, which was a heavy
goods vehicle while possessing for light motor vehicle. It was
submitted, there was no separate policy obtained for coverage
of risk under WC Act and policy was Motor Accident Insurance
Policy. In view of breach of terms and conditions of policy and
as per Section 149 of MV Act, insurer could not be held liable.

7. It was secondly contended that though workman
was stated to have sustained disability of 26% by PW.2 -
Doctor, who had examined him, without any justification or by
assigning proper reasons, Commissioner assessed loss of
earning capacity at 79% and awarded excessive compensation.
It was submitted that this Court on 04.03.2021 had admitted
appeal precisely on following substantial questions of law and
prayed for answering same in favour of insurer and allow
appeal.
"1. Whether the Commissioner was justified in
fixing the loss of earning capacity at 79%, contrary

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HC-KAR
NC: 2026:KHC:58021
MFA No. 675 of 2013


CNR: KAHC010108912013


to the medical evidence that determined the
disability at 26% to the whole body?
2. Whether having regard to the legal position that
the insured is entitled to avoid liability under
Section 149 of the Motor Vehicles Act, the
Workmen Compensation Commissioner was
justified in fastening the liability, despite the proof
that the Driver did not possess a valid driving
licence and the insured has violated the mandate
of Section 3 and 5 of the Motor Vehicles Act and
also the Policy's terms and conditions?"

8. It was also submitted that workman had in fact
applied for driving license of heavy goods vehicle and secured
learner's license only after occurrence of incident in question.

9. There is no representation for respondent. Even on
previous occasion, there was absence. Since matter is of year
2013, it is being proceeded with.

10. Heard learned counsel and perused impugned
judgment and award and record.

11. Insofar as first substantial question of law, to
establish loss of earning capacity, claimant deposed as PW.1
and got marked discharge summary, out-patient slips and
wound certificate as Exs.P4, P5 and P7. He also examined Dr.

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HC-KAR
NC: 2026:KHC:58021
MFA No. 675 of 2013


CNR: KAHC010108912013


Kiran Kallaiah as PW.2. Medical evidence on record would
indicate that claimant sustained fracture of both femur bones.
In his deposition, though stated that fracture of left femur had
united, fracture of right femur had contracted infection
requiring further medical attention. In case, fracture of lower
limb had not yet united, claimant would definitely be unable to
earn livelihood from driving. While passing impugned award,
Commissioner has adverted to entire material on record and on
appreciation and by assigning reasons held, effect of
permanent partial physical disability on avocation at 79%.
Since there is material basis for finding, same would not give
rise to a substantial question of law. Therefore, substantial
question of law no.1 is held not to arise for consideration in this
case.

12. Insofar as next substantial question, it is settled
legal principle that procedure and methodology for deciding
claims under provisions of WC Act and MV Act differ
substantially. Merely on ground that policy issued was motor
vehicle accident policy, all statutory defences under provisions
of MV Act would not be automatically available to claims under
WC Act. Indeed, learned counsel for appellant-insurer would be

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HC-KAR
NC: 2026:KHC:58021
MFA No. 675 of 2013


CNR: KAHC010108912013


justified in pointing out that Ex.P8 - driving licence extract
produced by workman would show that he had obtained
learner's licence for driving heavy goods vehicle only on
18.01.2007, after date of incident. But incident occurred at
unmanned level crossing with train ramming against Lorry,
where possession or otherwise of driving licence by workman
would be irrelevant for cause of accident.

13. Under above circumstances, there would be no
basis for contention that incident was out of employment.
There is no cross-examination of workman on said line. In view
of above, even substantial question of law no.2 would not arise
for consideration.
dismissed
14. In view of above, appeal is . Amount in
deposit before this Court, if any, is ordered to be transmitted to
jurisdictional Court for disbursement.


Sd/-
(RAVI V HOSMANI)
JUDGE



YKL, AV
List No.: 1 Sl No.: 19