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Karnataka High Court · body

2011 DIGILAW 575 (KAR)

Ashok A. R. v. Ganesh K. R.

2011-06-09

SUBHASH B.ADI

body2011
Judgment :- 1. Appeal is by the claimant and cross-objections is by the insurer against the judgment and award in M.V.C.No.7246/2005 dated 12.12.2006 on the file of XVI Additional Judge, MACT, Bangalore. 2. Appellant has sought for enhancement of compensation whereas the insurer has questioned the liability. 3. The parties are referred to as per the ranking in the Tribunal. 4. The brief facts leading to this case are: i) Claimant sought for compensation of Rs.15 Lakhs for the injuries sustained in a road traffic accident interalia alleging that he was working as a cleaner cum loader, earning Rs.5,000/- per month. On 05.06.2005, he traveled in a Mini Goods Tempo Tata-709 bearing Registration No.KA-04-AA/7475. The said vehicle as driven by its driver in a rash and negligent manner, as a result of which, the driver lost control and vehicle dashed against the road side tree. As a result of which, claimant suffered severe injuries on his left leg, left thigh and other parts of the body. He was immediately shifted to Gubbi Government Hospital where first aid was given and from there, he was shifted to District Hospital, Tumkur and from there, he was shifted to Sanjay Gandhi Hospital, Bangalore, where he underwent treatment as inpatient and during the course of treatment, his leg was amputated above the knee. ii) The claim petition was contested by the insurer admitting the coverage of the risk of an employee. However, contended that the policy was act policy though it is styled as a package policy. Even if it is a package policy, there is no special package to cover the risk of an employee-cleaner. The Tribunal on the basis of the evidence on record has awarded compensation of Rs.5,90,500/-with 6% interest as against this judgment, appeal and cross-objections have been filed. 5. Sri. S.P. Shankar, learned Senior Counsel appearing for the appellant has not disputed that the claimant was a cleaner cum loader in a mini goods vehicles, which met with an accident and caused injuries to the claimant. He submitted that claimant being a cleaner cum loader is a manual labor. His left leg above the knee has been amputated. He has been totally disabled. He is not a fit person to carry on any other work. Such an injury cannot be treated as partial disability for his avocation. The injury has caused 100% permanent disability. He submitted that claimant being a cleaner cum loader is a manual labor. His left leg above the knee has been amputated. He has been totally disabled. He is not a fit person to carry on any other work. Such an injury cannot be treated as partial disability for his avocation. The injury has caused 100% permanent disability. He also submitted that, in case of an employee, the special coverage is not necessary as Section 147 Proviso covers the risk of an employee if the employee sustains injuries arising out of or in course of employment. To support his contention, he relied on a decision of the Division Bench of this Court reported in ILR 1988 KAR 136 in the matter of Biddappa –vs- KSRTC, and submitted that even if the injury sustained by the employee in the course of his employment and is schedule injury. However, if there is permanent total disablement and if it is proved by the evidence, notwithstanding the fact that the injury suffered by the workman is one of those specified injury in Part II of Schedule I, such employee is entitled for compensation in accordance with Schedule IV. He also relied on judgment reported in 2010 AIR SCW 437 in the matter of S. Suresh –vs- Oriental Insurance Co. Ltd. and another and submitted that incase of a driver, where his right leg is amputated, the Supreme Court has observed that amputation of his right leg below knee renders him to be unfit to work as driver and in such cases, it has to be treated as 100% loss of earning capacity. He also relied on the full bench judgment of this Court reported in AIR 2003 2996 in the matter of Bhimappa and others –vs- Bhankar atlas Adya and others and submitted that claim petition though filed under the provisions of the M.V. Act, the Tribunal has a power to determine the compensation in terms of the provisions of the Workmen’s Compensation Act, 1923 and if there is a coverage of the employee, he is entitled for full compensation irrespective of the scheduled injury. He also submitted that the policy produced shows as a package policy necessarily means that it has a coverage of employee also and as such, the liability of the insurer cannot be restricted to the schedule injury and it should be treated as 100% disability and accordingly, the compensation should be awarded and liability should be fixed on the insurer. He also relied on another judgment of the Apex Court reported in AIR 1987 Supreme Court 1184 in the matter of Skandia Insurance Co. Ltd., -vs- Kokilaben Chandravadan and others and submitted that, ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against the third party risk by virtue of Section 94. The obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the Community traveling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads and submitted that the legislature has insisted and made it incumbent on the user of a motor vehicle to insure against the third part and makes it obligation for the insurer to satisfy the compensation. As such, there is no reason for the insurer to limit its liability under Workmen’s Compensation Act. 6. On the other hand, Sri. Srishaila, learned Senior Counsel appearing for Respondent No.1 submitted that the proviso to Section 147 of the M.V. Act excludes requirements of policy in case of bodily injury or the death of an employee arising under the Workmen’s Compensation Act in respect of employees engaged in driving in respect of public service vehicle conductor, and if it is goods carriage being carried in the vehicle, or contractual liability in so far as it is specified in proviso, they are statutorily covered. However, their liability is to the extent as specified under the Workmen’s Compensation Act. However, their liability is to the extent as specified under the Workmen’s Compensation Act. Referring to this provision, he submitted that the claim petition itself discloses that the claimant is a cleaner cum loader in a lorry, which caused accident. Being an employee and he having sustained the injury of amputation, left leg below the knee is a scheduled injury under Schedule I Part II Item No.20 and in respect of Part II, the injuries are specified as permanent partial disablement. Section 4 of the Workmen’s Compensation Act provides for determination of compensation in respect of schedule injury and submitted that under Section 4(i), clause (c) where permanent partial disablement results from the injury, the compensation has to be determined at such percentage which have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury. Such percentage under Clause (c) of Section 4 means at 50% loss of capacity of the compensation payable for permanent total disablement, result of injury and submitted that for permanent total disablement, the amount payable is 60% of the monthly wages of the workman multiplied by the relevant factor in case of partial disablement, 50% of the same multiplied by the relevant factor. To support his contention, he also relied on the full bench judgment of this Court in the matter of Smt. Bhimanna and others –vs- Shankar @ Adya and others and submitted that this Court on interpretation of Section 147 has held that the liability required to be covered by the insurance policy in terms of Section 147 need not be a liability other than the one arising under the Workmen’s Compensation Act, 1923. Consequently, a policy of insurance would satisfy the requirements of Section 146 and proviso to Section 147 of the Motor Vehicles Act if the same covers the liability of the insured arising in the course of employment for the death or bodily injuries to the employees mentioned in the proviso such coverage is limited to the liability that would arise against the insurer under the Workmen’s Compensation Act. Referring to this observation, learned counsel submitted that the liability arising under the M.V. Act in respect of injury or death of an employee during the course of employment would be determined under the Workmen’s Compensation Act and as such, injury being a schedule injury under Schedule I Part II, Compensation requires to be determined under the provisions of the Workmen’s Compensation Act. He also relied on another decision of the Apex Court reported in 2009 AIR SCW 3717 (Oriental Insurance Co. Ltd., -vs- Mohd.Nasir and another) and submitted that it is relevant to find out the nature of the injury as to whether the same falls within the purview of Part I or Part II thereof. Whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement and to the extent specified in the schedule, the liability of the insurer arise and submitted that the Tribunal cannot convert the claim petition of an employee sustaining injury during the course of employment to claim higher compensation other than specified in the schedule to Workmen’s Compensation Act. 7. In the light of the submission made by the counsel, points arise for consideration are: i) Whether the gravity of the injury consonance with the avocation that claimant was doing is relevant factor to determine the partial or permanent disability? ii) Incase of physical partial disablement and 100% functional disablement, whether the compensation payable to the claimant would be as per his disablement consonance to his avocation? 8. The facts which are not in dispute are that the claimant in his claim petition has stated that he suffered injury while he was traveling in mini goods tempo vehicle as a cleaner cum loader. That the injury sustained by him was arising out and in the course of his employment. In such case, the special coverage of the risk of such employee not required in view of the provisions of Section 147 Proviso as it is statutorily covered. However, it is better to refer to the said proviso. 147. That the injury sustained by him was arising out and in the course of his employment. In such case, the special coverage of the risk of such employee not required in view of the provisions of Section 147 Proviso as it is statutorily covered. However, it is better to refer to the said proviso. 147. Requirement of policies and limits of liability:- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorized insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person including owner of the goods or his authorized representative carried in the vehicle] or damage to any property of a third party caused by or arising and of the use of the vehicle in a public place, (ii) against the death of a public service vehicle caused by or arising out the use of the vehicle in a public place: Provided that a policy shall not be required— (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employment of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of land in the course of his employment other than a liability arising under the Workman’s Compensation Act 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee – (a) engage in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it s a good carriage, being carried in the vehicle, or (d) to cover any contractual liability. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in subsection (1), shall cover any liability incurred in respect of any accident, upto the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provision of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the court note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this Section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. A reading of this proviso makes it clear that to cover the risk of an employee specified therein, a policy is not required. The full Bench of this Court on interpretation of Section 147 has held that: “31. A reading of this proviso makes it clear that to cover the risk of an employee specified therein, a policy is not required. The full Bench of this Court on interpretation of Section 147 has held that: “31. In view of the above discussion, we are unable to agree with the contention of learned counsel for the claimant and both minority view in NOORULLA’s case holding that insurance company would be liable only when there is determination under the W.C. Act and majority view in NOORULLA’s case the liability is not restricted to liability under W.C.Act are no longer good law and it stands overruled”. This Court held proviso to Section 147 makes clear that an insurer is not compulsorily required to cover risks of all employees of the insured, but is only required to cover the risk in respect of certain employees of the insured stated therein and to the extent the liability arising under W.C. Act. The Apex Court in the matter of Oriental Insurance Co.Ltd., -vs- Mohd. Nasir and another at Para – 11 has observed thus: “11. With the aforementioned backdrop, we may analyse the contentions raised before us by the learned counsel for the parties. Both the statutes provide for the mode and manner in which the percentage of laws of earning capacity is required to be calculated. They provide that the amount of compensation in cases of this nature would be directly reliable to the percentage of physical disability suffered by the injure vis-à-vis the injuries specified in the First Schedule of the 1923 Act. Indisputably where injuries are specified in the First Schedule, the mode and manner provided for the purpose of calculating the amount of compensation would be applicable”. 13. As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same fails within the purview of Part I or Part II thereof. We have noticed herein before that whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement. The distinction between the ‘permanent total disablement’ and ‘permanent partial disablement is that whereas in the former it is 100% disablement in the latter it is only the disablement to the extent specified in the schedule”. The distinction between the ‘permanent total disablement’ and ‘permanent partial disablement is that whereas in the former it is 100% disablement in the latter it is only the disablement to the extent specified in the schedule”. The object of second proviso to Section 147 is to statutorily cover the risk of employee specified in the proviso who suffered an injury or death arising in the course of employment irrespective of whether a policy covers or not. This is a special benefit, which is extended to the employees. Workmen’s Compensation Act thus provide for determination of compensation if a workman suffers an injury in the course of his employment. However, in case of road traffic accident, if a claim petition is filed under the provisions of the M.V. Act, merely because the Workmen’s Compensation Act provides for determination is not a ground to reject the claim petition. The full Bench of this Court has held the claim petition filed under the M.V. Act in respect of a claim arising out of an accident in respect of an injury to an employee arising out of an in the course of employment can also be adjudicated but the compensation so determined would be in reference to provisions of the Workmen’s Compensation Act. Obviously, that he being an employee, who is otherwise entitled for compensation cannot be denied of determination of compensation only on the ground of filing of claim petition under the M.V. Act and any such determination as has been observed by the Supreme Court as well as by this Court has to be under the Workmen’s Compensation Act If compensation is to be determined, Section 4, which read as under: 4. Amount of compensation: (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- (a) Where death results from the injury: an amount equal to [fifty percent] of the monthly wages of the deceased workman multiplied by the relevant factor or an amount of [eighty thousand rupees], whichever is more; (b) Where permanent total disablement results from the injury: an amount equal to [sixty percent] of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of [ninety thousand rupees], whichever is more; A reading of the above provisions specifies the determination of the compensation with reference to the injury namely, schedule injury and non-schedule injury. Schedule injury refers to permanent total disablement and permanent partial disablement. The injuries are also specified in respective part. It is not in dispute that in this case, the claimant has suffered amputation of his left leg below knee and it cannot be disputed that it is schedule injury under item No.20 Part II Schedule I. Section 4 sub section (i) Clause (c) provides for determination of compensation at such percentage which would have been payable in the case of permanent total disablement in consonance with percentage of Part I Schedule I. For a partial total disablement, he has amputation of left leg below knee, 50% of the permanent total disablement, which is specified in Clause (b) i.e., an amount equal to [sixty percent] of the monthly wages of the injured workman multiplied by the relevant factor. If the legislation in its wisdom has specified the schedule injuries and has also specified the procedure as to the determination of compensation. It cannot be said that the statutory liability of the insurer could exceed its limit in law, as the liability is fixed by statute not by contract. However, if the injury is such a nature, though it is a schedule injury but it makes the injured employee of total functional disablement. Question arises as to whether such a disablement could be considered or not. The Apex Court in the judgment reported in 2010 AIR SCW 437 (S.Suresh –vs- Insurance Co.Ltd. and another) at para 8 has observed as under: “8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.” Though under Section 166 of the Motor Vehicles Act the compensation can be determined based on the disability, however, in case of workman, when the statute provide a specific procedure as regard to the determination of the compensation in consonance with the injury specified therein, any determination contrary to that, could be violative of Section 4 read with Schedule-I of the Workmen’s Compensation Act. However, in case the Tribunal finds that the disability suffered by the employee in the course of his employment, is much more than the scheduled disability, it is open to the Tribunal to assess the same, when it comes to the question of indemnifying the liability of the insured, the liability of the insurer limits to the statutory liability, as reading of Section 147 of the Motor Vehicles Act with Section 4 and Schedule-I of the Workmen’s Compensation Act restrict the determination of the compensation payable by the insurer only to the extent as provided under the provisions of Section 4. The liability of the insurer is a statutory liability, as such, if the statute requires the determination of the compensation in a particular manner, it cannot be said that the insurer could be made liable to pay beyond the scope of the provisions of Section 4. It is in this regard, I find that the liability of the insurer has to be limited to as provided under Section 4 of the W.C.Act, but any excess determination made that has to be paid by the employer. In this case, if it is treated that the disability suffered by the claimant is more than the schedule disability, it is open to the claimant to seek compensation as against the owner in accordance with law. In the light of the above observations, M.F.A.Cr.Ob.No.106/2006 filed by the insurer is partly allowed. M.F.A.No.12127/2007 filed by the claimant is dismissed. In this case, if it is treated that the disability suffered by the claimant is more than the schedule disability, it is open to the claimant to seek compensation as against the owner in accordance with law. In the light of the above observations, M.F.A.Cr.Ob.No.106/2006 filed by the insurer is partly allowed. M.F.A.No.12127/2007 filed by the claimant is dismissed. Claimant is entitled to 50% of the compensation payable for the permanent disability under Section 4, multiplied by 16 x 44, by taking the income of the claimant at Rs.4,000/- per month, which would come to Rs.1,68,960/- with interest @ 12% per annum, in accordance with law.