SINDHI OSMAN NATHUBHAI v. HARUN MAMAD CHAKI — 1984 DIGILAW 57 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE appellant Sindhi Osman Nathubhai was serving as a driver with the respondents Nos. 1 and 2 and having suffered an accident arising out and in the course of employment to wit. fracture of the right leg he submitted an application against the three respondents the third being the New India Insurance Co. Jamnagar to obtain award under the Workmens Compensation Act and the same application was tried as Workman Case No. 6 of 1980. His case before the Commissioner Workmens Compensation Tribunal at Junagadh was that the respondents Nos. 1 and 2 were doing transport business and he was employed with them as a driver to drive their truck bearing No. G. T. P. 4723 on monthly wages of Rs. 400. 00 and Rs. 10. 00 towards Bhatha allowances. According to him his total monthly wages were Rs. 700. 00 per month. That on 21-11-1978 he was on duty and was driving the truck on Pranchi Road situated at a distance of about 700 kms. from Veraval Patan. He met with an accident while his truck combined with another truck bearing No. G. T. Y. 3562. He sustained an injury on his right thigh and thereafter he was taken to the hospital for treatment. He claimed a sum of Rs. 20 510 from the respondents towards compensation penalty and interest for loss of earning at 40 per cent. He also claimed costs of the application and prayed for award accordingly. ( 2 ) THE respondents Nos. 1 and 2 resisted the application by filing their objections at Exh. 11. They contended that the transport company was owned by the respondent No. 1 only and not by the respondents Nos. 1 and 2 jointly. They submitted that the respondent No. 7 had nothing to do with the truck and that he was wrongly joined as a party. They admitted that the appellant was employed with the respondent No. 1 on monthly wages of Rs. 400. 00 but they denied that he was paid Rs. 10. 00 per clay towards the Bhatha allowances. They further contended that the accountant occurred solely due to the negligence of the appellant and therefore he was not entitled to obtain any compensation under the Workmans Compensation Act. The respondent No. 3. the New India Insurance Co. 400. 00 but they denied that he was paid Rs. 10. 00 per clay towards the Bhatha allowances. They further contended that the accountant occurred solely due to the negligence of the appellant and therefore he was not entitled to obtain any compensation under the Workmans Compensation Act. The respondent No. 3. the New India Insurance Co. contended that the truck was insured with them but it was employed with the United India Fire and General insurance Company. The appellant submitted an application to substitute United India Fire and General insurance Company vide application (Exh. 55) but that application was rejected on the ground that it was submitted at a very belated stage. ( 3 ) WHEN the application came up for hearing before me the learned Advocate Mr. B. R. Kyada for the appellant made an oral request that the names of the respondents Nos. 3 and 4 be deleted and I allowed his oral request. The respondents Nos. 3 and 4 therefore stand deleted and shall not be affected by the final order that I will pass in this matter. I may state here that there shall be no order for costs so far as respondents Nos. 3 and 4 are concerned. I may further state that the Commissioner dismissed the application as against the respondent No. 2 as he accepted the submission of the respondent No. 2 that he did not own the truck and that he was wrongly impleaded as one of the opponents. Mr. Kyada candidly stated that he could not press the appellants claim against the respondent No. 2. The result therefore is that there shall be no order against the respondent No 2 also and that the appeal against the respondent No. 2 stands dismissed There shall be no order for costs in that regard also. ( 4 ) IT is not the contention of the respondent No. 1 anywhere either at the trial stage or before me that the appellant is not a workman within the definition of workman under Compensation Act 1923 ( 5 ) THE appellant examined himself before the Commissioner as witness No. 1 Exh. 29. He has stated in the course of his deposition that he was driving the truck of the respondent No. 1 on the day of the accident and that he was transporting the empty barrels. 29. He has stated in the course of his deposition that he was driving the truck of the respondent No. 1 on the day of the accident and that he was transporting the empty barrels. This statement of his is not controverted and therefore there is no manner of doubt that the appellant was a workman and was driving the truck in the course of his employment. It is also a disputed position that the accident arose while he was driving the truck and therefore the accident arose out of his course of employment. ( 6 ) THE appellant examined Dr. Ratilal Thakkar who had examined the appellant on 13 1981 (the accident occurred on 21-11-1978 and he found that the appellant had suffered a permanent injury of the right leg to the extent of 90 per cent. He has given the assessment certificate which is at Exh. 39. He has also produced and Improved at Exh. 43 the X-ray plate of the injury. There is no convincing cross-examination to show either that the injury was not permanent or that it was not suffered to the extent of 90 per cent as certified by Dr. Thakkar. The respondent No. 1 has examined himself and has admitted that the appellant was serving with him as a driver but he stated that he was giving him a salary of Rs. 300. 00 per month and not Rs. 400. 00 per month. this part of his evidence is disbelieved by the Commissioner for the reasons stated by him in his judgments which reasons are acceptable. ( 7 ) THE Commissioner dismissed the application on the ground that the accident occurred on account of the rash and negligent driving of the truck by the appellant. The appellant was prosecuted and convicted of rash and negligent driving on his own plea of guilty. The Commissioner held that the appellant was driving the truck in a rash and negligent manner which is a danger to himself and other persons on the road. He further observed that rash and negligent driving is a criminal negligence which is prohibited under law and breaker of such law is required to be punished by the competent criminal court. Since he is punished in this ease by a criminal court the criminal negligence is proved beyond doubt the appellant. therefore. cannot take advantage of his own wrong. He further observed that rash and negligent driving is a criminal negligence which is prohibited under law and breaker of such law is required to be punished by the competent criminal court. Since he is punished in this ease by a criminal court the criminal negligence is proved beyond doubt the appellant. therefore. cannot take advantage of his own wrong. He also referred in his judgment to Sec. 3 (b) (ii) of the Workmens Compensation Act in support of the conclusion to which he reached that the application before him deserved to be dismissed. ( 8 ) I may first dispose of the reference he has made to see. 3 provisos to sub-clause (1) of the Workmens Compensation Act 1923 Sec. 3 (1) reads as under:"3 (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of this chapter: Provided that the employer shall not be so liable (A) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days; (B) in respect of any (injury not resulting in death caused by) an accident which is directly attributable to (I) the workman having been at the time thereof under the influence of drink or drugs or (II) the wilful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the: safely of workmen or (III) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided I or the purpose of securing the safety of workmen;the proviso contemplates situations which are expressly referred to therein. So far as this case is concerned there is no case put up as regards the applicability of sec. 3 (1) proviso (b) sub-clauses (i) and (iii); the reference is made to sub-clause (ii) of proviso (b ). That provision however in the first part refers to an order expressly given and therefore that part of the sub-clause has no applicability in the present ease. It is not the case of the respondents that the workman had wilfully disobeyed any order expressly given to him. That provision however in the first part refers to an order expressly given and therefore that part of the sub-clause has no applicability in the present ease. It is not the case of the respondents that the workman had wilfully disobeyed any order expressly given to him. So far as the second part of the sub-clause is concerned it relates to a wilful disobedience to a rule expressly framed for the purpose of securing the safety of workman and no rule is pointed out which is framed for the purpose of securing the safety of workman and wilfully disobeyed. Vivian Bose J. in the ease of Shaik Jafarji Haptullah Bhoy Gin and Press Factory Amraoti v. Shaik Ismil AIR 1937 Nagpur 311 referred to similar provisions in English Law and observed There are provisions which exempt the employer from liability in certain cases as for instance wilful disobedience of an order expressly given or of a rule expressly framed for the purpose of securing the safety of the workman or when the workman is under the influence of drink or drugs. But no exemption is given for mere negligence or carelessness. It follows the liability exists in such eases provided the accident arises out of and in the course of. he employment. He further observed. The Provisos are similar to the ones in the Indian Act. and do not include carelessness or negligence. Lords Finlay Atkinson and Sumner all indicate in the course of their learned judgments in (1917) AC 352 that negligence in itself would not exempt the employer from liability. I have therefore no doubt that the same rule applies in India as well. ( 9 ) THE same view was taken by the Division Bench of the Orissa High Court in the case of Pandam Debi v. Raghunath Ray AIR 1950 Orissa 207. It is observed that though the expression accident in see. 3 has not anywhere been defined it is well settled that it generally means some unexpected event happening without design even though there may be negligence on the part of the workman who suffers from it. It is observed that though the expression accident in see. 3 has not anywhere been defined it is well settled that it generally means some unexpected event happening without design even though there may be negligence on the part of the workman who suffers from it. It is further observed that even if an accident is caused to a motor bus by the rash and negligent act of the driver in driving it at an excessive speed it cannot be said that dashing of the vehicle against a tree which caused the accident was brought about by any previous design or a wilful act on the part of the driver and hence once it is proved that the accident was caused in the course of his employment. the question of negligence great or small is irrelevant. ( 10 ) THE same view is reiterated in the case of Smt. Challapareddy Ranganaykamma v. V. Venkateshwara Rao 1975 Labour Indian Cases 1373 (Andhra Pradesh High Court ). It is observed therein In claims for compensation under see. 3 the question in each case is to see whether what the workman did was really an improper way of doing what he was employed to do or was something outside the sphere of his employment. In the former case the employer would be liable; while in the latter he would not be liable to pay compensation. ( 11 ) THE settled legal position is thus against the view taken by the Workmans Compensation Tribunal that since the appellant was guilty of negligence his claim for personal injuries could not be sustained. ( 12 ) THE next question is about the quantum of compensation. the appellant has claimed Rs. 20 510 towards the compensation penalty and interest. The injury which he has suffered is a fracture of the left leg and the disability suffered is to the extent of 20 per cent. Both the learned Advocates before me are agreed that the case will be covered by sec. 4 (1) (c) (ii) of the Workmens Compensation Act. The relevant part of see. 4 runs as under;"14 (1) Subject to the provisions of this Act the amount of compensation shall be as follows. Both the learned Advocates before me are agreed that the case will be covered by sec. 4 (1) (c) (ii) of the Workmens Compensation Act. The relevant part of see. 4 runs as under;"14 (1) Subject to the provisions of this Act the amount of compensation shall be as follows. namely: (A) x x x x x (B) x x x x x (C) Where permanent partial disablement results from the injury (i) x x x x x (ii) in the case of an injury not specified in Schedule 1. such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury;the perusal of Schedule IV to sec. 4 shows that the appellant would have been entitled to claim Rs. 29. 400. 00 in case of permanent total disablement. The disability assessment is to the tune of 20 per cent according to Dr. Thakkar and there is nothing in the cross-examination to suggest as to why this percentage should not be accepted. Mr. Budhbhatti did not submit any argument for rejection of Dr. Thakkars evidence on this point. so when the compensation is worked out for the disability at 20 per cent in the light of Schedule IV to sec. 4 read with sec. 4 (1) (c) (ii) of the Workmens Compensation Act the figure of compensation works out at Rs. 5 880 ( 13 ) THE appellant has further claimed an interest on this amount and penalty under sec. 4a of the Workmens Compensation Act. It is an admitted position that in the present case the employer-respondent No. 1 did not accept his liability at all for compensation and consequently he did not make any provisional payment. Hence the question of awarding of interest under sec. 4 (3) arises. The payment of compensation fell due one month after the date of injury which was caused to the appellant on 21-11-1978. This is a fit case in which the respondent No. 1 must be directed to pay the interest under sec. 4a (3) of the Workmens Compensation Act. Hence it is directed that the respondent No. 1 shall pay interest at the rate of 6 per cent per annum on Rs. 5. 880. 00 from 21-12-1979 till the claim is fully realised by the appellant. ( 14 ) MR. 4a (3) of the Workmens Compensation Act. Hence it is directed that the respondent No. 1 shall pay interest at the rate of 6 per cent per annum on Rs. 5. 880. 00 from 21-12-1979 till the claim is fully realised by the appellant. ( 14 ) MR. B. R. Kyada submitted that this is a fit case in which the appellant should be directed to pay penalty at the rate of 50 per cent of the amount. I do not accept this submission. I do not find any justification for imposing a penalty on the appellant over and above the interest which is granted to the appellant on the amount of the claim which is allowed. Therefore Mr. Kyadas submission is rejected. 15 In the result the appeal is partly allowed. The judgment and order dated 30-11-1981 passed by the Chairman of the Workmens Compensation Tribunal Junagadh in Workman Case No. 6/80 is set aside. The respondent No. 1 is directed to pay to the appellant a sum of Rs. 5 880 with 6 per cent interest thereon from 21-12-1979 till payment or realisation. There shall be no order as to costs. (KJV) appeal partly allowed. .