BRANCH MANAGER, NATIONAL INSURANCE CO. LTD. NOW REP. BY REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD. Vs. NIJALINGAPPA @ B. NIJALINGAPPA S/O. BADAPPA AND KUMAR S/O. LINGAPPA

JUDGEMENT

(1.) SECOND Respondent. insurance company in NFC. No. 107/2007 on the file of Commissioner for Workmen's Compensation, Chitradurga has come up in this appeal challenging the quantum of compensation awarded to applicant in the said proceedings.

(2.) BRIEF facts leading to this appeal are: The case of applicant before Commissioner, who is 1st Respondent: in this proceedings, is that he was working as driver of Autorickshaw bearing No. KA -16/7624 belonging to lst Respondent and insured with 2nd Respondent before Commissioner. It is his further case that on 3.4.2007 while he was discharging his duty as driver in the course of his employment under 1st Respondent, said Autorickshaw met with an accident near V.V. Pura Cross, Hiriyur town, resulting in tenderness and swelling of right hip, abrasion over fore -arm, abrasion over left knee and trochantric fracture of right leg. Subsequently, applicant filed claim petition seeking compensation for the aforesaid injuries suffered by him.

(3.) THE ground on which present appeal is filed is that Commissioner while assessing loss of earning capacity has committed an error in not appreciating the evidence available on record in terms of Section 4(1)(c)(ii) of Workmen's Compensation Act. That Commissioner while allowing petition has observed that 2nd Respondent insurance company has failed to contest, claim producing acceptable evidence to demonstrate that compensation claimed by applicant is on higher side and injuries suffered by him does not entitle him to seek compensation taking loss of earning capacity at 40%. It is also the case of insurance company that when an application was filed by it seeking permission to refer applicant to an expert for medical opinion before proceeding to accept the loss of earning capacity, the same is rejected. Thereafter, there is an observation in the judgment to the effect that there is failure on the part of insurance company in adducing necessary evidence to substantiate that claim of applicant is on higher side.