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2013 DIGILAW 232 (KAR)

United India Insurance v. R. Suresh

2013-02-27

B.S.INDRAKALA

body2013
Judgment :- (This MFA is filed under Section 30(1) of Workmen's Compensation Act, against the judgment and order dated 29.01.2010 passed in WCA/NF-76/2009 on the file of the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division-I, Bellary, awarding the compensation of Rs.1,52,488/- with interest at the rate of 12% p.a. shall be deposited within 30 days from the date of the order.) 1. This appeal is directed against the order dated 29.01.2010 passed in WCA No.76/2009 on the file of Commissioner for Workmen's Compensation Division-2, Bellary by the insurer of the vehicle which is involved in the accident. 2. The brief facts leading to the filing of the said claim petition before the Commissioner for Workmen's Compensation, Bellary are: That on 18.5.2008, when the 1st respondent herein was driving the Tata ACE vehicle bearing registration No.KA- 35/9674 and while he so proceeding from Tumkur to Sira near Ajjagondanahalli circle, he lost control over the said vehicle and dashed against the lorry bearing registration No.KA-01/D-2049 and caused the accident. In the said accident, the claimant suffered injuries as shown in the wound certificate at Ex.P-3. Further it is contended that the 1st respondent at the time of accident was working as a driver under respondent No.2, who is the owner of Tata ACC vehicle bearing registration No.KA-35/9674 on a monthly salary of Rs.4,000/- and he was driving the said vehicle as an employee. Hence, he claimed compensation for the injuries suffered in the accident during the course of his employment with the second respondent. 3. As against which the appellant contended that the driver was not having the required licence to drive the transport vehicle, and as such, the appellant/insurer is not liable to indemnify the owner of the vehicle viz., 2nd respondent herein. 4. To prove his case, the 1st respondent examined himself as PW-1, and examined the medical officer, who assessed his disability as PW-2 and got marked documents at Exhibits P-1 to P-7. The appellant-insurance company got marked the copy of the policy of insurance as Ex.R-1. On appreciation of the evidence so adduced, the Commissioner for Workmen's Compensation deemed it fit to award a sum of Rs.1,52,488/- with 12% interest from one month after the accident till realization. Aggrieved by the said award, the insurance company has challenged the above award. 5. The appellant-insurance company got marked the copy of the policy of insurance as Ex.R-1. On appreciation of the evidence so adduced, the Commissioner for Workmen's Compensation deemed it fit to award a sum of Rs.1,52,488/- with 12% interest from one month after the accident till realization. Aggrieved by the said award, the insurance company has challenged the above award. 5. The learned counsel for appellant inter-alia contended that the Commissioner has not assessed the evidence of PW-1 and 2 properly and erred in assessing the disability at 30% due to the fractures stated to have been suffered by the victim and further contended that there is breach of terms and conditions of the policy by the second respondent and hence, the insurance company is not liable to pay the compensation. 6. Heard the arguments of the learned counsel for both the appellant as well as respondents. 7. The counsel for the appellant submitted that except wound certificate marked at Ex.P-3, no other evidence is adduced by the claimant to prove the nature of injuries suffered by him; X-rays are not produced to show the fracture said to have been suffered by the victim. Further he contended that as per Ex.P-1 copy of the FIR, the claimant is referred to District Hospital, Tumkur, whereas Ex.P-3 reveals that the same is issued by the Medical Officer at Primary Health Centre, Korlagundi. Further he contended that, with regard to taking of x-rays, disclosing the fracture of 4th and 5th ribs and lower ends of tibia and fibula of left leg, the serial number of X-rays so exposed are not mentioned. Further he contended that during the course of examination PW-1 has stated that after the accident he took treatment at Korlagundi Hospital and thereafter he continued his treatment in PW-2's hospital, but the FIR discloses otherwise and likewise Dr.Rajesh, PW-2 has deposed that he never treated the claimant, he only assessed the disability. 8. Per contra, the learned Counsel for respondent No.1 contended that it is a fact that respondent No.1 suffered the injuries as detailed in the wound certificate and also suffered the disability as deposed by P.W.2. In the circumstances, merely because in the FIR it is stated that the claimant was sent to District Hospital at Tumkur by the police that by itself is not sufficient to doubt the treatment taken by the claimant at Koralagundi Primary Health Center. In the circumstances, merely because in the FIR it is stated that the claimant was sent to District Hospital at Tumkur by the police that by itself is not sufficient to doubt the treatment taken by the claimant at Koralagundi Primary Health Center. Further, he submitted that non-production of the X-rays is not fatal to the case of the 1st respondent as the doctor, who assessed the disability, has consistently deposed with regard to the same. Further he submitted that even the wound certificate clearly discloses with regard to the said fracture. In the circumstances, he contended that the impugned order passed by the Commissioner for Workmen's Compensation is just and proper and does not call for interference. 9. In view of the submissions made, the points that arise for consideration are: 10. On perusal of the records of the Commissioner for Workmen's Compensation, it is seen that the injured /1st respondent herein, who is examined as P.W.1, has deposed reiterating the contentions urged in the petition. He has specifically deposed that when he was driving the light goods vehicle -Bajaj Tata ACE bearing registration No. KA 35/9674 at the instructions of his employer -2nd respondent, slowly and cautiously at about 12.15 p.m. from Tumkur to Sira near Ajjagondanahalli Circle, suddenly he lost control over the said vehicle and dashed against stationed lorry bearing registration No. KA 01/D-2049 and caused the accident. During the course of his cross-examination, (i) Whether the impugned judgment and order passed by the Commissioner for Workmen's Compensation calls for interference? (ii) What order? P.W.1 has deposed that after the accident, he took treatment in the Government Hospital at Korlagundi and thereafter, he took treatment from Dr. Rajesh. Further he has deposed conceding to the suggestion that at the Government Hospital at Korlagundi, there is no facility to take the X-ray and he has further deposed that at the advice of the doctors, he got the X-ray done at Bellary. 11. P.W.2 the doctor, who examined the injured and who assessed the disability has deposed that on examining the wound certificate and on clinical examination of the patient and also on the basis of the X-ray he assessed the disability and as the injured person is the driver, the injuries have reduced his working capacity he opined that he has partial permanent disability of 40%. 12. The accident is not in dispute. 12. The accident is not in dispute. Admittedly the FIR is registered and on investigation, the charge sheet is filed. What is disputed is that respondent No.1 has not adduced cogent evidence to prove the injuries alleged to have been suffered by him, but, considering the contents of the wound certificate coupled with the evidence of P.W.2, it cannot be said that the claimant has not suffered the injuries as alleged by him in the accident. 13. Though the evidence adduced by the 1st respondent discloses that he did suffer injuries in the said accident, in the absence of other records like details of treatment taken by him, X-rays, etc., it cannot be said that he suffered the disability to an extent of 40% as deposed to by P.W.2. Further it is also not the case of the 1st respondent that he took treatment as inpatient in any hospital. In the circumstances, the assessment of disability as deposed by P.W.2 cannot be taken as the correct assessment and it is reasonable to assess the disability at 20%. However, the assessment of age of the claimant as 28 years, his income as Rs.4,000/-per month and also the multiplier taken by the Tribunal at 211.79 by the Commissioner for Workmen's Compensation is proper and thus the 1st respondent is entitled to be compensated at 211.79 x 2,400 x 20% and as such he is entitled to be compensated at Rs. 1,01,659/-. 14. On perusal Ex.P.6, the driving licence, it is seen that the driver is issued with the driving licence to drive the light motor vehicle and its validity is from 16.6.2000 to 15.6.2020. Admittedly the alleged accident has occurred on18.5.2008 and as such as on the said date, he was having a valid driving licence to drive the light motor vehicle. 15. While seeking dispensation of notice to the 2nd respondent/owner by filing memo dated 20.7.2012, admitted its liability and sought dispensation of notice to the owner of the vehicle with regard to the liability of the appellant to indemnify the owner of the vehicle though it is contended by the appellant that the driver was not having the required policy, during the course of the employment. 16. Further it is seen that such licence was issued prior to the amendment made to the Motor Vehicles Rules in Form No.4. In the decision reported in ILR 2010 KAR. 16. Further it is seen that such licence was issued prior to the amendment made to the Motor Vehicles Rules in Form No.4. In the decision reported in ILR 2010 KAR. 4733 National Insurance Company Limited rep. By its Administrative Officer -vs-Yalgurdappa, since deceased by his L.Rs. and another, it is held as under: "The driving licence of respondent No.2 which is valid to drive Light Motor vehicle from 2.12.1996 to 1.12.2016 - The respondent No.2 had a valid driving licence to drive the Light Motor Vehicle and the licence was issued prior to 28.3.2001 i.e., on 1.2.1996. At the relevant point of time, a person who was competent to drive a Light Motor Vehicle was also competent to drive a Auto-rickshaw if its gross vehicle weight was less than 7,500 kgs. - In the instant case licence was issued on 02.12.1996, i.e., prior to the amendment made to the Motor Vehicle Rules, particularly in Form No.4. Section 10 of Motor Vehicles Act deals with form and contents of licences to drive and has cotegorised seven classes of vehicles namely (i) Motor Cycle without gear, (ii) Motor Cycle with gear, (iii) Invalid carriage, (iv) Light Motor Vehicle, (v) Transport Vehicle, (vi) Road roller, (vii) Motor Vehicle of a specified description. The said specification is by virtue of amendment, effective from 14.11.1994 by which the transport vehicle as a class of vehicle has been inserted and (a) Medium goods vehicle, (b) Medium Passenger Motor Vehicle, (c) Heavy goods vehicle, and (d) Heavy Passenger Motor vehicle were deleted. Therefore, after the amendment the classification of 'Light Motor Vehicle' is continued and is independent of transport vehicle. "Transport Vehicle" is a substitution for the aforementioned four classes of vehicles, which are deleted from the Section. It becomes clear that there is no inclusion of Light Motor Vehicle in the category of transport vehicle. The amendment to the class of transport vehicle pursuant to the amendment of Section 10 was carried out in the Motor Vehicles Rules with effect from 28.3.2001 particularly Rule 14 read with form 4, whereby category of transport vehicle was inserted. - The Tribunal was justified in holding the Insurance Company is liable to indemnify the respondent No.2/owner cum driver of Auto- rickshaw". Thus even in this case, admittedly the driving licence is issued on 16.6.2000 and the unloaden weight of the vehicle is less than 7,500 kgs. - The Tribunal was justified in holding the Insurance Company is liable to indemnify the respondent No.2/owner cum driver of Auto- rickshaw". Thus even in this case, admittedly the driving licence is issued on 16.6.2000 and the unloaden weight of the vehicle is less than 7,500 kgs. Hence, it cannot be said that the appellant is not liable to indemnify the owner of the vehicle. 17. Thus in the circumstances, the above appeal is entitled to be allowed partly with regard to the quantum of compensation awarded. Hence, the following: ORDER The above appeal is partly allowed by modifying the impugned order dated 29.1.2010 passed in WCA/NF- 76/2009 on the file of the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division-I, Bellary, holding that the 1st respondent/workman is entitled to be compensation at Rs.1,01,659/- with 12 % simple interest from 30 days from the date of the accident till realisation and the appellant/insurance company is liable to indemnify respondent No.2/owner of the vehicle and pay the compensation. The amount deposited, if any, shall be transmitted to the Court below for disbursement. Office to draw the award accordingly.