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2002 DIGILAW 73 (AP)

Kasha Kistappa v. New India Assurance Co. Ltd

2002-01-24

BILAL NAZKI, G.ROHINI

body2002
G. ROHINI, J. ( 1 ) THIS appeal is directed against the judgment of the learned single Judge in cm. A. NO. 1917 of 1991 at. 29-6-2000, which arises out of the Order of the Commissioner for Workmen Compensation, Ranga Reddy district zone in W. C. No. 109 of 1989. ( 2 ) THE appellant is the claimant in W. C. No. 109 of 1989, which was filed under sections 3 and 4 of the workmen s compensation Act, 1923 seeking a compensation of Rs. 98,000/- on the ground that he suffered permanent disability during the course of the employment. By Order dated 3-4-1991 the Commissioner for workmen s Compensation granted compensation of Rs. 35,471/- together with interest at 6% per C. M. A. No. 1917 of 1991 was filed by the New India Assurance company Limited, the 1st respondent herein with whom the accident vehicle was insured and who was held to be liable for payment of the compensation awarded in W. C. No. 109 of 1989. The learned single Judge allowed the appeal holding that W. C. No. 109 of 1989 is not maintainable against the appellant- insurance Company. Hence the letters Patent appeal by the claimant. ( 3 ) WE have heard the learned counsel for the appellant/claimant as well as the 1st respondent-Insurance company. ( 4 ) BEFORE adverting to the contentions raised by the learned counsel, it is necessary to refer to the brief facts of the case. ( 5 ) THE appellant/claimant filed W. C. No. 109 of 1989 stating that he is employed as labourer on a lorry bearing No. AGT 1084, belonging to the 2nd respondent herein and insured with the 1st respondent herein vide policy No. 610103/732/10597/55382 valid from 16-3-1989 to 15-3-1990. He pleaded that on 15-5-1989 while he was traveling in the said lorry which was loaded with shabad stones the lorry dashed against a tree on account of which he suffered grievous injuries resulting in permanent disability, he claimed thathe was receivinga salary of Rs. 750/-per month apart from batta of Rs. 10/- per day and he was aged about 35 years at the time of the accident and since the accident took place during the course of employment he is entitled for compensation which is quantified at Rs. 98,000/ -. ( 6 ) THE said petition was contested by both the employer as well as the Insurance company. 10/- per day and he was aged about 35 years at the time of the accident and since the accident took place during the course of employment he is entitled for compensation which is quantified at Rs. 98,000/ -. ( 6 ) THE said petition was contested by both the employer as well as the Insurance company. The employer in his counter though admitted that the claimant suffered injuries during the course of the employment denied the allegation that the accident had taken place due to the rash and negligent driving of the driver. It was further pleaded that since the vehicle was insured and the driver was having a valid driving licence at the time of the accident the Insurance company alone is liable to pay the compensation. ( 7 ) IN the counter filed on behalf of the insurance Company all the averments in the claim petition were denied including the alleged accident and the relationship of employer and employee and the permanent disability sustained by the claimant. It is specifically pleaded that the claimant was not working as labourer with the 1st respondent at the time of the accident. ( 8 ) THE claimant examined himself as a. W. 1 and got marked Ex. A-1 to A-4 documents to substantiate his claim. On behalf of the respondents two witnesses were examined and Ex. R-1 claim form was marked. The Commissioner on appreciation of the material on record held that the claimant was employed with the 1st respondent and therefore, he is entitled to receive the compensation. Though on behalf of the Insurance Company while placing reliance upon the statement of the claimant under Section 162 Cr. P. C. it was contended that the claimant was only a passenger traveling in the lorry, the Commissioner did not accept the same. The Commissioner found that the claimant suffered loss of earning capacity to the extent of 40% and accordingly held that the respondents are liable to pay an amount of Rs. 35,471/- as compensation with interest at 6%p. a. , within two months. The Commissioner found that the claimant suffered loss of earning capacity to the extent of 40% and accordingly held that the respondents are liable to pay an amount of Rs. 35,471/- as compensation with interest at 6%p. a. , within two months. ( 9 ) ON an appeal under Section 30 of the workmen s Compensation Act by the insurance Company, the learned single Judge held that the claimant is not an employee of the owner of the lorry and he does not fall within the definition of workmen and there is no master and servant relationship between the claimant and the 1st respondent. Accordingly, it was held that the claim petition itself is not maintainable and is liable to be dismissed so far as the Insurance company is concerned. ( 10 ) IN this Letters Patent Appeal at the instance of the claimant the learned counsel for the appellant/claimant contended that the impugned Judgment where under the learned single Judge reversed the order of the Commissioner solely on the basis of the statement of the claimant recorded under section 162 of Cr. P. C. is erroneous and cannot be sustained. The learned counsel further contended that the statement recorded under section 162 of Cr. P. C. with which the claimant was not confronted cannot be relied upon. ( 11 ) ON the other hand, the learned standing counsel for the 1st respondent- insurance Company contended that the judgment under appeal does not suffer from any infirmity and therefore, the same does not warrant any interference. ( 12 ) IN the background of the above said facts and in the light of the rival contentions raised by either party, the point that arises for our consideration is whether the statement recorded under Section 162 Cr. P. C. by the investigating officer can form basis to hold against the claimant that he was not engaged by the employer at the relevant point of time. ( 13 ) IT is pertinent to note that soon after the accident on 15-5-1989 Crime No. 75/89 was registered by the Tandur P. S. and during the investigating the statement of the claimant was recorded by the police. It appears that further proceedings wee pending before the judl. Magistrate of First Class, Tandur, r. R. District, however the outcome of the proceeding are not available on the record. It appears that further proceedings wee pending before the judl. Magistrate of First Class, Tandur, r. R. District, however the outcome of the proceeding are not available on the record. The learned single Judge during the hearing of the appeal has noted the statement of the claimant recorded under Section 162 Cr. P. C. wherein he stated that on 15-5-1989 he along with his relatives boarded the crime lorry for traveling up to Tandur and that he paid the fare to the cleaner and was allowed to sit in the cabin. On the basis of the said statement of the claimant recorded under Section 162 cr. P. C. the learned single Judge concluded that the claimant is a passenger and not an employee of the owner of the vehicle and the claim petition was filed with false assertions. Having observed so, the learned single Judge allowed the appeal with costs so far as the appellant-Insurance Company is concerned. The learned single Judge also directed the registrar of High Court to initiate criminal proceedings against the claimant as well as the owner of the lorry and to issue proceedings to the Bar Council of A. P. against the counsel who appeared for the claimant for taking appropriate action for his misconduct. ( 14 ) WE are unable to agree with the conclusion of the learned single Judge. Apparently, the conclusion of the learned single Judge is based on the statement of the claimant recorded by the police under section 162 of Criminal Procedure Code during the investigation in Cr. No. 75/89 to tandur P. S. , which was found in Part-II case diary filed before the Judicial Magistrate of first Class, Tandur. ( 15 ) SECTION 162 Cr. P. C. provides that no statement made by any person to a police officer in the course of an investigation under chapter-XII shall be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made except for the purpose of contradicting the witness as provided by section 145 of the Evidence Act or the other circumstances mentioned under theproviso. ( 16 ) IN the instant case admittedly the stage of the case before the Judicial First class magistrate, Tandur was not known and there was nothing on record to show that the claimant was examined before the Judicial first Class Magistrate and that he was confronted with the previous statement alleged to have been made by him before the police. Nor the said statement was put to him when he was examined as A. W. 1 before the commissioner. That apart, the 1st respondent- insurance Company has not examined the investigating officer who is said to have recorded the statement of the claimant. In the circumstances it cannot be said that the previous statement of the claimant recorded during investigation is proved. Hence, in our considered opinion, the statement of the claimant recorded by the police during investigation cannot form basis for concluding that the claimant was not an employee of the owner of the vehicle. Instead the learned single Judge ought to have appreciated the other evidence on record while deciding the appeal. However, we are not inclined to remit the matter back for consideration afresh. Since the entire material is available on record, we prefer to examine whether the findings recorded by the commissioner for Workmen Compensation are sustainable. ( 17 ) THE material on record shows that the claimant examined himself as A. W. 1 and stated that he was engaged as a labour for the purpose of loading and unloading on the lorry ABT 1084 and while proceeding from gooty to Hyderabad with a load of Shabad stones the lorry met with an accident on account of which his right ankle was fractured and there was also a pelvic fracture and he cannot work as a labourer in future since he cannot lift any weights nor walk properly. He also stated that he underwent treatment as inpatient at Govt. Hospital, Tandur, at osmania Hospital, Hyderabad and subsequently he was also treated in private hospitals. Ex. A-1 is the O. P. Chit of the osmania Hospital. Ex. A-2 is the disability certificate. Ex. A-3 is the FIR and Ex. A-4 is the certificate issued by the Hospital at tandur. In the light of the aforesaid evidence we do not see any reason to disbelieve that the claimant was present in the vehicle at the time of the accident and he suffered injuries as pleaded by him. Ex. A-2 is the disability certificate. Ex. A-3 is the FIR and Ex. A-4 is the certificate issued by the Hospital at tandur. In the light of the aforesaid evidence we do not see any reason to disbelieve that the claimant was present in the vehicle at the time of the accident and he suffered injuries as pleaded by him. It is pertinent to note that though the claimant could not examine any other witness to substantiate his plea that at the relevant point of time he was in employment with respondent No. 1, the owner of the vehicle admitted in his counter that the claimant suffered injuries during the course of employment. R. W. 1 who is the cleaner of the lorry stated that the claimant loaded the lorry at Gooty and that he used to unload the lorry. In the Chief-examination itself he stated that at the time of the accident there were two labourers in the lorry. He mentioned the name of the claimant and stated that he did not pay any fare to him. His evidence clearly shows that at the relevant point of time the claimant was engaged by the owner of the lorry for loading and unloading of Shabad stones. R. W. 2 who is the Administrative Officer of the Insurance company is not an eye-witness and no credence can be given to his evidence to decide whether the claimant received injuries in the accident and whether he was engaged by the owner of the vehicle. In the light of the aforesaid evidence we do not find any infirmity in the conclusion of the commissioner that the claimant was in the employment of respondent No. 1 and he suffered injuries during the course of the employment. ( 18 ) SO far as the quantum of compensation is concerned, the case of the claimant is that he was drawing a salary of Rs. 750/- per month and batta of Rs. 10/- per day for 15 days. Thus, he was earning a total amount of rs. 900/- per month. Ex. A-2 disability certificate issued by an Orthopedic Surgeon shows that the loss of earning capacity is 40%. In the circumstances the Commissioner has rightly awarded a sum of Rs. 35,471 /- compensation which in our opinion cannot be said to be excessive. Thus, he was earning a total amount of rs. 900/- per month. Ex. A-2 disability certificate issued by an Orthopedic Surgeon shows that the loss of earning capacity is 40%. In the circumstances the Commissioner has rightly awarded a sum of Rs. 35,471 /- compensation which in our opinion cannot be said to be excessive. ( 19 ) FOR the aforesaid reasons, we set aside the judgment in C. M. A. Nb. 1917 of 1991. Consequently, the order dated 3-4-1991 in w. C. No. 109 of 1989 is restored. It is made clear that the directions issued by the learned single Judge to initiate criminal proceedings against the claimant and the owner of the vehicle and for taking appropriate action for misconduct against the counsel appeared for the claimant before the lower Court are also set aside. ( 20 ) ACCORDINGLY the Letters Patent Appeal is allowed. No costs.