Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 862 (MP)

Kripal Singh v. Rajendra Singh

2011-08-02

N.K.MODY

body2011
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the order dated 13.8.2003 passed by Commissioner for Workmen's Compensation Act, Labour Court, Indore in case No. 88/1999 WCNF whereby the application filed by the appellant for compensation on account of injuries sustained was dismissed, present appeal has been filed. 2. Short facts of the case are that appellant filed a claim case before the learned Court below alleging that on 23.5.1999 appellant was driving tanker bearing registration No. MP-09/KA/1577 which was owned by the respondent No. 1-A and B and insured with the respondent No. 2. It was alleged that on 23.5.1999 when the appellant was coming from Guna to Indore with Amardeep Singh, son of the appellant who was also travelling in the said tanker in the capacity of Cleaner, at that lime, offending vehicle met with an accident with the result Amardeep Singh died on spot and appellant sustained grievous injuries. Since the offending vehicle was involved and appellant was employed with the respondent No. 1, therefore, it was prayed that claim case be allowed and compensation be awarded. The claim case was contested by the respondent No. 2 on various grounds including on the ground that appellant is responsible for the accident. It was prayed that claim case be dismissed. After framing of issues and recording of evidence learned Court below dismissed the claim case against which the present appeal has been filed. 3. Learned Counsel for the appellant submits that the impugned order passed by learned Court below is illegal, incorrect and deserves to be set-aside. It is submitted that learned Court below dismissed the claim case on the ground that for compensation on account of death of Amardeep Singh, appellant filed claim case before Claims Tribunal wherein it was found that accident occurred because of rash and negligent driving of the appellant. It is submitted that this cannot be a ground for dismissal of the claim case filed by the appellant. It is submitted that whether appellant was at fault or not, is not the requirement of law under the provisions of Workmen's Compensation Act. It is submitted that findings recorded by MACT are having no binding force for deciding the compensation for the injuries sustained by the appellant. It is submitted that appeal filed by the appellant be allowed and the impugned order passed by learned Court below be set-aside. 4. It is submitted that findings recorded by MACT are having no binding force for deciding the compensation for the injuries sustained by the appellant. It is submitted that appeal filed by the appellant be allowed and the impugned order passed by learned Court below be set-aside. 4. Learned Counsel for the respondent No. 2 submits that claim case was filed by mother of Amardeep Singh in which the present appellant was the party and after recording the evidence it was found that the accident occurred on account of negligence on the part of appellant. It is submitted that negligence of appellant was duly proved by the respondents, therefore, in the circumstance learned Court below committed no error in dismissing the claim case filed by the appellant. Learned Counsel for the respondent No. 2 placed reliance on a decision in the matter of Gouri Kinkar Bhakat v. Messrs Radha Kissen Cottan Mills, AIR 1933 Cal. 220, wherein it was held that if the injury was occasioned by an added peril which the workman brought about by interfering unnecessarily with a fenced off part of the machine while it was working he is not entitled to compensation. It is submitted that appeal filed by the appellant be dismissed. 5. Chapter II of Workmen's Compensation Act, 1923 (which shall be referred hereinafter as "Act") deals with the compensation payable to the Workman. As per section 3 of the Act 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 Chapter II. Sub-Clause (ii) of sub-section (b) of section 3 of the Act lays down that employer shall not be so liable in respect of an accident which is directly attributable to the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen. 6. Sub-Clause (ii) of sub-section (b) of section 3 of the Act lays down that employer shall not be so liable in respect of an accident which is directly attributable to the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen. 6. In the matter of Sunita Devi v. Avtar Singh, 2005 ACJ 1175 wherein driver of Van died in accident with truck due to his own negligence and Commissioner held that since accident was caused due to negligent driving of Van, claimant was not entitled to any compensation Jharkhand High Court at Ranchi held that compensation under Workmen Compensation Act is recoverable from the employer for the death, or permanent disablement of a workman even of the injury might have occurred as a consequence of wilful misconduct on the part of workman. It was further held that Act is a piece of social security and welfare legislation, dominant purpose is to protect the workman. It was further held that provisions should not be interpreted too narrowly so as to debar the workman from compensation. In the matter of Ratan Singh Mehar v. Upkhand Adhikari, Vidyut Vitran Upkhand Pratham, Pithoragarh, 2007 ACJ 69 wherein Lineman of Electricity Board was injured due to electric shock while repairing electricity line and his left hand was amputated and the claim for compensation was rejected on the ground that he himself was negligent in performing his duties, Uttaranchal High Court at Nainital held that mere negligence is not willful disobedience or willful disregard. 7. From perusal of record, it appears that in the said motor accident appellant sustained injuries and also lost his son who was alleged to be Cleaner. Ex. P/14 to P/26 are the documents which shows that appellant was hospitalised. Apart from this documentary evidence, appellant examined himself as AW/1 and also examined Dr. Ashuttosh Verma AW/2 according to him appellant sustained fracture of Femer bone which was operated and rod was inserted and permanent disability was assessed by him as 50%. This fact was further supported by Dr. Asim Negi who was Orthopedic. Apart from this documentary evidence, appellant examined himself as AW/1 and also examined Dr. Ashuttosh Verma AW/2 according to him appellant sustained fracture of Femer bone which was operated and rod was inserted and permanent disability was assessed by him as 50%. This fact was further supported by Dr. Asim Negi who was Orthopedic. To disprove the case of appellant respondent No. 2 has placed reliance on the award dated 10.1.2001 passed by II MACT, Indore in claim Case No. 365/1999 wherein appellant was one of the non-applicant wherein it was found that accident occurred because of negligent driving of appellant. This cannot be enough for dislodging the claim of the appellant under the provisions of the Act. In a claim petition for compensation the Court has to see whether the claimant is in the employment of employer and for rejecting a claim the Court has to come to the conclusion that the accident was the result of willful disobedience of the workman to an order expressly given or to a rule expressly framed, for the purpose of securing the safety of workmen. Neither there is a pleading on the part of respondent No. 2 to the effect that there was disobedience on the part of appellant or rules framed by employer were violated nor evidence. In the facts and circumstances of the case in absence of pleadings and evidence there was no justification on the part of learned Court below in dismissing the claim case filed by the appellant. So, far as the compensation is concerned, the wages of the appellant which can be taken into consideration as Rs. 2,000/- per month in the year when the accident took place. After taking 60% of the wages, 50% of permanent disability and after applying the factor 178.49 keeping in view the age of appellant, the amount of compensation is assessed. In view of this appeal filed by the appellant is allowed and the impugned order is set-aside holding that appellant is entitled for a sum of Rs. 1,07,094/- with interest (c). 7.5% per annum from the date of accident and 12% per annum after 30 days from the date of adjudication. Respondent No. 2 is liable for payment of compensation. 8. With the aforesaid observations, appeal stands disposed of. No order as to costs. C.C. as per rules.