Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 4046 (MAD)

National Insurance v. J. Viswanathan

2013-11-28

S.VIMALA

body2013
JUDGMENT 1. The claimant / driver Viswanathan, who claims to have suffered 60% physical disability / 100% functional disability, filed claim petition for compensation under Employees' Compensation Act, claiming a sum of Rs.5 lakhs. The claim petition was allowed by the Deputy Commissioner of Labour awarding a sum of Rs.4,02,749/-. 2. The claim petition was allowed on the findings that, a) there was relationship of employee and employer between the claimant and the second respondent herein / first opposite party, namely, Smt. Pushpa; b) the injuries sustained were employment injuries, sustained in the course of employment and that c) the respondents therein, i.e. the appellant and the second respondent herein, are liable to pay compensation. 2.1. These findings are under challenge in the appeal filed by the insurance company. 3. The appellant is the second opposite party before the Commissioner. The owner, who is the first opposite party in the claim petition, has not been served. However, as the existence of the insurance is not denied, the interest of the owner would be taken care of by the insurance company. Therefore, as per the request made, the notice to the second respondent herein is dispensed with. 4. In this appeal, it is the contention of the insurance company that there was no First Information Report to prove the occurrence and therefore, the finding of the Tribunal is not correct. The second contention is that the relationship between the injured and the employer has not been proved and therefore, the claim petition ought not to have been allowed. 5. Whether these contentions raised by the insurance company could be accepted is the issue to be considered. 6. Only when a complaint is preferred, there can be a First Information Report based upon that complaint. The aggrieved party is always entitled to choose the form of remedy. The party may seek civil remedy or remedy under Criminal Law. 7. So far as this case is concerned, the injured has suffered head injury. Therefore, the persons along with the injured might have been busy in taking the injured to the hospital. Therefore, just because there is no First Information Report, it would not lead to the conclusion that there was no occurrence at all. Whether the alleged occurrence was true or not has to be analysed with reference to the available evidence before the Court. 8. Therefore, just because there is no First Information Report, it would not lead to the conclusion that there was no occurrence at all. Whether the alleged occurrence was true or not has to be analysed with reference to the available evidence before the Court. 8. It is the evidence of the claimant that though he was a driver by avocation, he was inclined to assist the cleaner and therefore, after loading the materials in the vehicle, he was tying the rope along with the cleaner on the vehicle and at that time, he fell down. This evidence of the claimant is supported by the evidence of the cleaner, who worked along with him and he was examined as P.W.2. The evidence of P.Ws.1 and 2 is corroborated by the evidence of the employer herself, wherein she has admitted that the claimant was employed as a driver, working under her and that during the course of employment, the claimant sustained injuries. 9. Then coming to the nature of injuries sustained, according to the contention of the learned counsel for the claimant, the claimant has practically become a deadwood. Breathing amounts to living for him, as some of the organs have become dysfunctional and some have become less functional. On account of the fracture in the skull bone, he has become immobile. 10. When the consequences are so serious in nature and that too, when it has arisen out of an accident and the same was also admitted by the employer herself, there is no point for the insurance company in contending that the alleged accident itself cannot be true. Therefore, the Commissioner has rightly taken the percentage of disability as 100% and awarded compensation of Rs.4,02,749/-. 11. In the result, there is no merit in this appeal and the Civil Miscellaneous Appeal is dismissed. The first respondent / claimant is permitted to withdraw the award of compensation as ordered by the Deputy Commissioner of Labour, Salem. No costs. Consequently, connected C.M.P. is also dismissed.