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2013 DIGILAW 3868 (MAD)

National Insurance v. J. K. Jaganathan

2013-11-08

C.S.KARNAN

body2013
JUDGMENT 1. The appellant / 2nd opposite party has preferred the present appeal in C.M.A.No.1489 of 2009, against the order passed in W.C.No.313 of 2006, on the file of the Commissioner for Workmen Compensation, Salem. 2. The short facts of the case are as follows:- The applicant has filed the claim in W.C.No.313 of 2006, claiming compensation of Rs.5,00,000/- from the opposite parties for the injuries sustained by him in an accident arising out of and in the course of doing his duty under the employment of the 1st opposite party. It was submitted that the petitioner was working as a loadman under the 1st opposite party and that on 12.08.2004, as per the instructions of the 1st opposite party, when he with other workers had loaded coconuts in the 1st opposite party's van bearing Registration No.TN-38-C-1062, at Kovai Kutralam and when the van was proceeding on the Kovai-Erode N.H. and nearing Avinashi, at around 8.30 p.m., the van bearing Registration No.AP-09-V-6218, coming in the opposite direction and driven in a rash and negligent manner, dashed against the van in which the petitioner was travelling. As a result, the driver of the 1st opposite party's van, namely Kittusami died on the spot. The applicant sustained fracture of bone in his right hand and also sustained injuries all over his body. He was given first aid at Mayura Hospital, Perumanallur and subsequently admitted at Vijaya Hospital, Erode, wherein he received treatment as an inpatient for one month and surgical operations were performed to set right the fractured bones. At the time of accident, the applicant was aged 24 years and earning a sum of Rs.5,000/- per month. Due to the disability sustained by him, he is not able to do his work as before. Hence, the applicant has filed the claim against the 1st and 2nd opposite parties, who are the owner and insurer of the van bearing Registration No.TN-38-C-1062. 3. The 1st opposite party in his counter had admitted the employment of the petitioner as a loadman for his van and that he had sustained injuries in the accident on 12.08.2004. It was submitted that the driver had died and one other loadman, had sustained injuries in the said accident and that those two persons were also employed by him. It was submitted that a criminal case had been registered against the driver of the van bearing Registration No.AP-09-V-6218. It was submitted that the driver had died and one other loadman, had sustained injuries in the said accident and that those two persons were also employed by him. It was submitted that a criminal case had been registered against the driver of the van bearing Registration No.AP-09-V-6218. It was submitted that as the vehicle was covered under a valid R.C. and as the vehicle was insured with the 2nd opposite party at the time of accident, only the 2nd opposite party is liable to pay compensation. 4. The 2nd opposite party in his counter had denied the averments in the claim regarding age and income of the applicant. It was submitted that as the applicant had admitted in his claim that the accident was caused by the rash and negligent driving of the driver of the van bearing Registration No.AP-09-V-6218, the claim was bad for non-joinder of the owner and insurer of the said van. It was further submitted that as five persons had travelled in the 1st opposite party's van, the policy conditions of insurance had been violated and as such the 2nd opposite party is not liable to pay compensation. It was submitted that the claim was excessive. 5. The Deputy Commissioner of Labour framed five issues for consideration in the case namely: (1) Did the applicant sustain injuries in an accident arising out of and while doing his duty in the course of employment under the 1st opposite party? (2) If so, what is the age and income of applicant? (3) What is the percentage of loss of earning capacity sustained by the applicant? (4) What is the quantum of compensation which the applicant is entitled to get? and (5) Who is liable to pay compensation? 6. On the applicant's side, 2 witnesses were examined and five documents were marked as Exhibits P1 to P5 namely: Ex.P1-F.I.R.; Ex.P2-Wound Certificate; Ex.P3-Copy of Policy; Ex.P4-Disability Certificate; and Ex.P5-X-ray. On the 2nd opposite party's side, one witness was examined and one document namely Copy of Insurance Policy of the Vehicle bearing Registration No.TN-38-C-1062 was marked as Ex.R1. 7. PW1 had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his claim, he had marked Exhibits P1 to P5. 8. 7. PW1 had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his claim, he had marked Exhibits P1 to P5. 8. The Tribunal, on observing that the 1st opposite party in his counter has admitted the employment of the applicant as his loadman and on scrutiny of Ex.P1 and Ex.P2 held that the applicant was employed as a loadman under the 1st opposite party and that he had sustained injuries in an accident arising out of and while doing his work in the course of employment under the 1st opposite party on 12.08.2004. On scrutiny of Ex.P2, discharge summary issued at Vijaya Hospital, Erode, it is seen that the applicant was aged 24 years at the time of accident. Though the applicant had stated in his claim that he was earning Rs.5,000/- per month, no documentary evidence had been marked to prove the same. The Deputy Commissioner further observed that the 1st opposite party had not produced any salary certificate to prove the income of the applicant. Hence, the Deputy Commissioner of Labour held that the notional income of the applicant could only be taken as Rs.3,481/- per month, as per the minimum Wages Act, 1948 and as per the G.O.No.2D No.47 dated 01.08.2003 of Deputy Commissioner of Labour and Employment (J-1). 9. PW2, Dr.K.Periyasamy, Orthopedist had adduced evidence that he had examined the applicant and observed that due to the accident, the applicant had sustained fracture of his bone in right hand and that a surgical operation had been conducted. He deposed that the movements of the applicant's right forearm had become restricted and that he would not be able to lift heavy objects or do any hard manual labour. He certified that the applicant had sustained 20% disability. The Commissioner for Workmen's compensation on holding the loss of earning capacity sustained by the applicant as 20% and on adopting a multiplier of 218.47, awarded a sum of Rs.91,259/- (60/100X3481X218.47X20/100) as compensation to the applicant under the head of loss of income. 10. RW1, the Assistant Manager of the 2nd opposite party's firm had adduced evidence that in the same accident, two other claim petitions were received by them in W.C.No.311 of 2006 and W.C.No.312 of 2006, wherein the petitioners in those claims had also claimed compensation for injuries sustained by them. 10. RW1, the Assistant Manager of the 2nd opposite party's firm had adduced evidence that in the same accident, two other claim petitions were received by them in W.C.No.311 of 2006 and W.C.No.312 of 2006, wherein the petitioners in those claims had also claimed compensation for injuries sustained by them. He deposed that as per the R.C. of the 1st opposite party's van, only two persons other than the driver of the van were permitted to sit in the cabin of the van and that no persons were allowed to travel in the rear of the van which is only meant for carrying of goods. He deposed that premium had been paid by the 1st opposite party to ensure coverage of 3 persons including the driver and that as 10 persons had travelled in the van, at the time of accident, as is seen on perusal of F.I.R., the policy conditions of Insurance had been violated and as such the 2nd opposite party is not liable to pay any compensation and in support of his evidence, he had marked Ex.R1. 11. The Deputy Commissioner, on scrutiny of Ex.R1, observed that the 1st opposite party's van was a goods vehicle and that the driver and cleaner of the van were given coverage of insurance. The Deputy Commissioner further observed that premium of Rs.50/- and Rs.75/- had been paid to the Insurance Company to extend coverage of Insurance for two other personal travelling in the van. Hence, the Tribunal on scrutiny of oral and documentary evidence, directed the 2nd opposite party to pay the said compensation, to the applicant within a period of 30 days from the date of its order, failing which it was directed to pay the said sum together with interest at the rate of 12% per annum. 12. Aggrieved by the award passed by the Commissioner for Workmen Compensation, the 2nd opposite party / The National Insurance Company Limited, Erode has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Commissioner after considering the evidence of RW1, who had stated that as per the F.I.R., around 10 persons had travelled in the vehicle against the permitted capacity of 3 in all i.e. driver and two workmen for which only the premium was paid, ought not to have held the appellant liable to pay compensation to the claimant. It was contended that the Commissioner erroneously interpreted that a total of 3 persons were covered by the policy without considering the possibility that there is no bar in filing other claim petitions in future. It was contended that the Commissioner erred in finding that the injuries of the applicant was under the course of employment in the absence of acceptable oral evidence and also erred in fixing the income of applicant at Rs.3,481/- in absence of proof of employment. Hence, it was prayed to set aside the award passed by the Commissioner for Workmen's Compensation. 13. The very competent counsel for the applicant submits that in the said accident, 3 separate compensation petitions had been filed by their respective parties as per the policy condition, coverage is extended for 3 persons and as such the Insurance Company is liable to pay compensation to the applicant. In order to prove the employment, the 1st opposite party had admitted employment of applicant. As per F.I.R., it is crystal clear that the accident had occurred in the course of employment of the applicant, who had travelled in the 1st opposite party's van loaded with goods. Therefore, employer-employee relationship and the occurrence of accident during the course of employment have been proved. The learned Deputy Commissioner of Labour had framed necessary issues and decided the case in an appropriate manner. 14. On verifying the facts of the case and on hearing the arguments advanced by the learned counsel on either side and on scrutinising the impugned award of the Deputy Commissioner of Labour, this Court does not find any lapse in the conclusions arrived at regarding employer-employee relationship and the occurrence of accident during the course of employment of the applicant. Besides this, the compensation had been decided on the basis of age and income of the applicant. Therefore, this Court confirms the award passed by the Deputy Commissioner of Labour. It is seen from the records that the entire compensation amount had been deposited before the Deputy Commissioner of Labour. 15. Besides this, the compensation had been decided on the basis of age and income of the applicant. Therefore, this Court confirms the award passed by the Deputy Commissioner of Labour. It is seen from the records that the entire compensation amount had been deposited before the Deputy Commissioner of Labour. 15. Now, it is open to the applicant to withdraw the apportioned share amount, with accrued interest thereon, as per the ratio fixed by the Deputy Commissioner of Labour, lying in the credit of W.C.No.313 of 2006, on the file of the Deputy Commissioner of Labour, Salem, after filing a memo, along with a copy of this order and after identification of the applicant by their counsel, subject to deduction of withdrawals made, if any. 16. In the result, the above appeal is dismissed. Consequently, the award passed in W.C.No.313 of 2006, on the file of the Deputy Commissioner of Labour, Salem, dated 30.04.2008, is confirmed. No costs. Consequently, connected miscellaneous petition is closed.