Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 3692 (MAD)

New India Assurance Co. , Ltd. v. P. Arumugam

2013-10-24

C.S.KARNAN

body2013
Judgment : 1. The appellant / third opposite party has preferred the present appeal against the Order dated 22.10.2008, made in W.C.No.114 of 2006, on the file of the Commissioner for Workmen's Compensation-1 / Deputy Commissioner of Labour-1, Chennai-6. 2. The short facts of the case are as follows:- The applicant had filed a claim petition in W.C.No.114 of 2006, on the file of the Commissioner for Workmen's Compensation-1/Deputy Commissioner of Labour-1, Chennai-6, claiming compensation of a sum of Rs.5,00,000/-from the opposite parties for the injuries sustained by him in an accident arising out of and while doing his duty under the employment of the first opposite party. 3. It was submitted that the applicant was working as a Driver under the first opposite party and that he was the driver of the Ashok Leyland Vehicle bearing chassis/engine No.MDE563814/MDH 333418 (Model 1613H/I), belonging to the second respondent. Further, it was submitted that on 12.09.2005, at about 03.00 p.m., when he was driving the vehicle near Guntur Veeravathanam bridge, some buffaloes had suddenly crossed the road and hence the applicant, in order to avoid collision of vehicle with the buffaloes, had applied sudden brakes, due to which the vehicle had run into a ditch on the side of the road. As a result, the applicant had sustained fracture of bone in his right arm and also sustained other injuries over his body. He was admitted at Government Hospital, Narsaraopet, wherein first aid was given and subsequently, he was admitted at Government Stanley Hospital, wherein he received treatment as an inpatient from 13.06.2005 to 17.10.2005. Hence, the applicant had filed the claim application against the respondents. The first opposite party is the contractor under the second opposite party, who is the owner of the vehicle and the third respondent is the insurer of the second respondent's vehicle. 4. The first opposite party, in his counter affidavit, had submitted that the claimant was working under him as a daily wage labour as a driver and that he was paid a sum of Rs.2,261/- per month as salary and that he had sustained injuries in the accident that occurred on 12.09.2005. It was submitted that as the first respondent had taken a workmen's compensation policy with the third opposite party only the third opposite party is liable to pay the compensation assessed. 5. It was submitted that as the first respondent had taken a workmen's compensation policy with the third opposite party only the third opposite party is liable to pay the compensation assessed. 5. The third respondent Insurance Company, in their counter affidavit, had submitted that no employer-employee relationship existed between the first respondent and the applicant and that the applicant did not work as a casual driver under the first respondent. The averments made in the claim petition that the applicant had sustained injuries in an accident arising out of and while doing his duty under the employment of first respondent was also not admitted. It was submitted further that the applicant has to prove his age, income and also prove that the second respondent's vehicle had been insured with them through documentary evidence. 6. On considering the averments of both sides, the Deputy Commissioner of Labour had framed five issues for consideration namely: i. Did the applicant sustain injuries in the accident arising out of and while doing his work under the course of employment under the first opposite party and while driving the vehicle owned by the second opposite party? ii. What is the age and income of the applicant? iii. What is the loss of earning capacity sustained by the applicant? iv. What is the quantum of compensation, which the applicant is entitled to get? and v. Who is liable to pay compensation among the opposite parties? 7. On the applicant's side, the applicant was examined as P.W.1 and six documents were marked as Exs.P1 to P6 namely discharge summary of Government General Hospital, medical treatment records issued by Government Stanley Hospital, copy of driving licence, disability certificate and X'ray. On the first opposite party's side, one Krishnamoorthy was examined as R.W.1 and two documents were marked as Exs.R1 and R2 namely letter issued by Johal Carriers Pvt., Ltd., and terms and conditions of insurance policy. On the third opposite party's side, one S.K.Lakshmi was examined as R.W.3 and she had marked three documents as Exs.R3 to R5 namely insurance policy, letter issued by the third respondent and report of the accident. 8. P.W.1 had adduced evidence, which is corroborative of the statements made by him in the claim petition regarding manner of accident. On the third opposite party's side, one S.K.Lakshmi was examined as R.W.3 and she had marked three documents as Exs.R3 to R5 namely insurance policy, letter issued by the third respondent and report of the accident. 8. P.W.1 had adduced evidence, which is corroborative of the statements made by him in the claim petition regarding manner of accident. The Deputy Commissioner of Labour, on scrutiny of evidence of P.W.1 and on scrutiny of counter affidavit of the first respondent, held that the applicant had sustained injuries in the accident arising out and while doing his duty during the course of employment under the first opposite party. 9. P.W.1 had further adduced evidence that due to the accident, he had sustained fracture of bone in his right arm and also sustained lacerated injuries over his body and that a surgery was conducted at Stanley Hospital and steel plate was fixed in the operated area. He deposed that he is not able to do his work as a driver and not able to bend or stretch his right arm. On scrutiny of Ex.P1 discharge summary issued at Stanley Hospital, it is seen that the claimant had sustained fracture of right humerus shaft middle and distal 1/3 of humerus and that plates and screws were fixed. 10. P.W.2 Dr.Thiagarajan had adduced evidence that he had examined the applicant and found that due to the accident, the applicant had sustained fracture of bone in his right hand and that a surgical operation was done and steel plate had been implanted in the operated area. He deposed further that the fractured bone had malunited that the muscles in his hand had lost it's flexibility. He deposed further that upward movement of his arm had been restricted to 80 Degrees and that the encycling movement had been reduced by 20 Degrees. He certified that the applicant had sustained 50% disability. 11. On scrutiny of Ex.P3, it is seen that the applicant was aged 47 years at the time of accident. As no documentary evidence had been marked to prove the income of the applicant, the Deputy Commissioner of Labour held that the notional income of the applicant was Rs.3,947/- as per the Minimum Wages Act, enacted by the Government in G.O.No.(2) 47, Labour & Employment, dated 01.08.2003. 12. As no documentary evidence had been marked to prove the income of the applicant, the Deputy Commissioner of Labour held that the notional income of the applicant was Rs.3,947/- as per the Minimum Wages Act, enacted by the Government in G.O.No.(2) 47, Labour & Employment, dated 01.08.2003. 12. R.W.1 Krishnamoorthi, Assistant Manager of Johal Carriers Pvt., Ltd., had adduced evidence that the applicant was employed by them as a casual driver and that 200 casual drivers had been employed by them to transport the second respondent's chassis vehicles and that as they had taken a workmen compensation policy with the third respondent, only the third respondent is liable to indemnify them. 13. R.W.2 S.K.Lakshmi, Administrative Officer of the third respondent's firm, had adduced evidence that as per the policy taken by the first respondent with them, they are liable to cover the risk of 400 drivers of the first respondent's firm and that their liability was limited to only Rs.3,000/-for each driver. The Deputy Commissioner of Labour, on observing that the extent of coverage is for Rs.12,00,000/- for 400 drivers during period of 02.08.2005 to 08.08.2006, held that the third respondent is liable to pay the compensation to the claimant. 14. The Deputy Commissioner of Labour, on adopting a multiplier of 163.07, awarded a sum of Rs.1,93,091/- as compensation to the applicant under the head of loss of earning (3,947 X 163.07 X 50/100 X 60/100). The Tribunal directed the third respondent Insurance Company to deposit the said sum within thirty days from the date of it's order. Failing which, the third respondent Insurance Company was directed to pay the said sum together with interest at the rate of 12% per annum from the date of filing the claim till the date of payment of compensation. 15. Aggrieved by the award passed by the Deputy Commissioner of Labour, the third respondent Insurance company has preferred the present civil miscellaneous appeal. 16. The learned counsel appearing for the appellant has contended in the appeal that the first respondent herein did not have a licence to drive the impugned vehicle involved in the accident on the date of accident. It is submitted that the first respondent herein received his licence only on 01.02.2006 and that the validity of this was upto 31.01.2009, whereas the said accident took place on 12.09.2005. It is submitted that the first respondent herein received his licence only on 01.02.2006 and that the validity of this was upto 31.01.2009, whereas the said accident took place on 12.09.2005. It was contended that as the first respondent herein was found fit enough to drive the transport vehicle as per the renewed licence issued to him by the R.T.O., the assessment of disability at 50% for the fracture of shaft of humerus bone as per Ex.P1, was excessive. It is also contended that the income of the applicant fixed at Rs.3,947/-per month was erroneous as it is contrary to the statement of wages submitted by the second respondent herein to the appellant herein showing the wages paid to the first respondent herein as Rs.2,262/-per month. Further, it is contended that as per the contract of insurance, the liability of the appellant herein is only Rs.1,10,660/-(60/100 X 2,262 X 163.07 X 50/100) as against the compensation of Rs.1,93,091/-fixed by the Deputy Commissioner of Labour and as such the Deputy Commissioner ought to have made the second respondent herein liable to pay the excess amount of Rs.82,431/-to the victim. Hence, it is prayed to set aside the order passed by the Deputy Commissioner of Labour-1, Chennai-6, as against the appellant herein. 17. The highly competent counsel for the applicant has submitted that the applicant was working as a driver under the first opposite party and the first opposite party is a recognized contractor under the second opposite party and the second opposite party company had insured their vehicle with the third opposite party. On 12.09.2005, at about 03.00 p.m., the applicant had driven the Ashok Leyland Chassis/engine on the state highway and when the vehicle was nearing the Veeravathanam bridge, some buffaloes had suddenly crossed the road. Hence, the applicant had applied sudden brake and as a result, the chassis had capsized in a ditch and the applicant had sustained grievous injuries. As such, the accident had occurred in the course of employment. Further, the employer-employee relationship had also been proved. The applicant underwent treatment as an inpatient at Stanley Government Hospital. Therefore, the case had been proved beyond doubts. The learned Deputy Commissioner of Labour had decided the case on merits, after framing five issues. Therefore, there is no lacuna in the said impugned order. Further, the employer-employee relationship had also been proved. The applicant underwent treatment as an inpatient at Stanley Government Hospital. Therefore, the case had been proved beyond doubts. The learned Deputy Commissioner of Labour had decided the case on merits, after framing five issues. Therefore, there is no lacuna in the said impugned order. Further, the applicant had sustained 50% disability and therefore the Deputy Commissioner of Labour had decided the compensation on the basis of salary and disability. Further, as per G.O.No.(2) 47, Labour and Employment, dated 01.08.2003, the minimum wages of a driver has been shown as Rs.3,947/-. Therefore, the compensation, which had been assessed, based on this minimum wages, as well as age and disability is appropriate. Hence, the highly competent counsel prayed this Court to dismiss the appeal. 18. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award, this Court is of the view that the impugned order has been passed after determining the employer-employee relationship and also after ascertaining that the accident had occurred during the course of employment and as such the award is found fit to be executed. 19. As per the records, it is seen that the entire compensation amount has been deposited by the appellant to the credit of W.C.No.114 of 2006, on the file of the Commissioner for Workmen's Compensation-1 / Deputy Commissioner of Labour-1, Chennai-6. 20. Now, it is open to the applicant to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of W.C.No.114 of 2006, on the file of the Commissioner for Workmen's Compensation-1 / Deputy Commissioner of Labour-1, Chennai-6, after filing a memo, along with a copy of this Judgment and after identification of the applicant by his counsel. 21. In the result, this civil miscellaneous appeal is dismissed and the Order dated 22.10.2008, made in W.C.No.114 of 2006, on the file of the Commissioner for Workmen's Compensation-1/Deputy Commissioner of Labour-1, Chennai-6, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.