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2003 DIGILAW 437 (KAR)

NATIONAL INSURANCE CO. LTD. v. SIDDAPPA

2003-06-06

K.L.MANJUNATH

body2003
K. L. MANJUNATH, J. ( 1 ) THIS appeal is arising out of an order passed by the Commissioner for Workmen's Compensation, chitradurga in WCA/nfc/cr No. 49 of 1998. Respondent No. 1 was the applicant before the Commissioner for Workmen's compensation. The respondent No. 1 Siddappa was working as a cleaner in a lorry bearing No. KA 25-6551 owned by respondent no. 2 Vijayananda Road Lines. On 8. 12. 1996, he was discharging his duties as a cleaner in the lorry which was proceeding from Bangalore to Hubli. When the lorry reached Palavvanahalli Gate, the respondent-claimant requested the driver to stop the vehicle in order to attend to the call of nature. After attending to the call of nature, the respondent-claimant was about to board his lorry bearing No. KA 25-6551, at that time another lorry bearing no. TN 28-3335 which was proceeding on the same road in the same direction dashed against the claimant-respondent, due to which he sustained injuries all over his body and was admitted to the Government hospital, Chitradurga. The driver of respondent no. 2 lodged an F. I. R. before the jurisdictional police stating that claimant-respondent no. 1 has been injured in an accident while discharging his duties as a cleaner. ( 2 ) ON account of the injuries sustained by him and disability caused to him during the course of his employment, the claimant presented a claim petition before the commissioner. The employer, respondent no. 2, in this appeal contended before the commissioner that the application of the claimant is not maintainable. According to the respondent No. 2, the claimant has to proceed against the owner and insurer of lorry bearing No. TN 28-3335. Similarly, the insurance company also contended that the application filed by the claimant is not maintainable, as the lorry of respondent no. 2 was not involved in the accident. The Commissioner after appreciating the evidence adduced by the parties, held that the claimant-respondent No. 1 sustained injuries in the accident, while discharging his duties as a cleaner and awarded compensation in accordance with the provisions of Workmen's Compensation Act, 1923, since respondent No. 2's lorry was insured with the appellant, fixed the liability on the appellant. The Commissioner after appreciating the evidence adduced by the parties, held that the claimant-respondent No. 1 sustained injuries in the accident, while discharging his duties as a cleaner and awarded compensation in accordance with the provisions of Workmen's Compensation Act, 1923, since respondent No. 2's lorry was insured with the appellant, fixed the liability on the appellant. The Commissioner after considering the nature of injuries and the percentage of disability caused to the claimant and by applying the minimum wages payable to a cleaner as on the date of the accident held that the claimant-respondent no. 1 is entitled to compensation of Rs. 1,74,916. The order of the commissioner is called in question in this appeal by the insurance company. ( 3 ) IN this appeal, the appellant has mainly concentrated on the question of maintainability of the application of the claimant before the Workmen's Compensation commissioner. ( 4 ) ACCORDING to the appellant when the claimant-respondent has sustained injuries in a road traffic accident, the application filed by him before the Commissioner for workmen's Compensation was not maintainable and he has also contended that the quantum of compensation awarded was as on higher side. ( 5 ) AFTER hearing learned counsel for the parties, what is required to be considered by this court in this appeal is, when the accident is caused to an employee while discharging his duties due to negligence of another vehicle, whether an employee can maintain an application under Workmen's compensation Act or under Motor Vehicles act? ( 6 ) THE facts in this case are not in dispute. Though the insurance company has contended that the claimant-respondent has not proved the relationship of master and servant between respondent Nos. 1 and 2, after considering the documentary evidence produced by claimant-respondent and looking into the statement of objections filed by respondent No. 2, it is clear that there exists a relationship of a master and servant between respondent No. 2 and respondent No. 1. Therefore, this court has to hold that the claimant-respondent No. 1 was an employee of the respondent No. 2 at the time of the accident and that he sustained injuries while discharging duties as cleaner in lorry bearing No. KA 25-6551 of respondent No. 2. Therefore, this court has to hold that the claimant-respondent No. 1 was an employee of the respondent No. 2 at the time of the accident and that he sustained injuries while discharging duties as cleaner in lorry bearing No. KA 25-6551 of respondent No. 2. ( 7 ) THE next question that arises for consideration of this court is when the respondent No. 1-claimant has sustained injuries on account of the accident caused by the lorry bearing No. TN 28-3335 can maintain an application before the Commissioner for Workmen's Compensation without filing an application under the motor Vehicles Act claiming compensation against the lorry bearing No. TN 28-3335. When the respondent No. 1 has sustained injuries during the course of his employment and such personal injury is caused to him out of the accident arising and in the course of his employment under section 3 of the Workmen's Compensation Act, 1923, he is entitled to make an application before the Commissioner for Workmen's compensation. Similarly, when he has sustained the injury in a road traffic accident caused by another vehicle though he was discharging duties as a cleaner of the respondent no. 2 is also entitled to make an application before the Claims Tribunal claiming compensation from the owner of the lorry bearing No. TN 28-3335 and its insurer. ( 8 ) FROM the above facts, it is clear that the claimant in such circumstances had got two options. Being an employee of respondent no. 2 having sustained injuries in a road traffic accident while discharging the duties can maintain a petition claiming compensation under the Workmen's Compensation act. Similarly, being a third party having sustained injuries in a road traffic accident caused by another motor vehicle is entitled to proceed against the owner and insurer of the offending vehicle. In other words, in such circumstances, a person is entitled to invoke either the provisions of Workmen's Compensation act or the provisions of the Motor Vehicles act. He can choose or elect any forum which is beneficial to him. However, he is not entitled to invoke the jurisdiction of both the statutes simultaneously. In the instant case, respondent-claimant has not filed any claim petition under the Motor vehicles Act claiming compensation by proceeding against the owner of the lorry bearing No. TN 28-3335, claimant having elected to proceed against his employer can maintain an application under the workmen's Compensation Act. In the instant case, respondent-claimant has not filed any claim petition under the Motor vehicles Act claiming compensation by proceeding against the owner of the lorry bearing No. TN 28-3335, claimant having elected to proceed against his employer can maintain an application under the workmen's Compensation Act. Therefore, the contention of the appellant insurance company that the application filed by the claimant before the Commissioner is not maintainable has to be negatived. ( 9 ) THEN the next question that arises for consideration of this court is whether the quantum of compensation awarded by the commissioner is on higher side. It has come in the evidence of the claimant that he has suffered a permanent disability of 70 per cent on account of the fracture of left hand. According to Dr. Eswarappa, pw 2, the claimant-respondent cannot make use of his left hand and there is no strength for the claimant to make use of his left hand for any purpose. Considering the disability caused to the claimant, the commissioner has held that the earning capacity of the claimant has been reduced to 18 per cent and considering the minimum wages payable to a cleaner on the date of the accident, the compensation has been determined by him. Therefore, this court cannot hold that the compensation awarded by the Tribunal is on higher side. ( 10 ) IN the circumstances, there is no merit in this appeal. Accordingly, the appeal is dismissed. The amount in deposit shall be transferred to the Commissioner for Workmen's Compensation and the claimant-respondent is entitled to draw the same. Appeal dismissed. --- *** --- .