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2017 DIGILAW 2915 (ALL)

New India Assurance Co. Ltd. v. Naresh Kumar

2017-12-13

K.J.THAKER

body2017
ORDER : KAUSHAL JAYENDRA THAKER, J. 1. Heard Sri V.C., learned counsel for the appellant, Sri Nigamendra Shukla, learned counsel for the respondent and perused the record. 2. This appeal is taken up for final hearing as per provisions of Order 41 Rule 24 of C.P. Code, as the record is sufficient to decide the case. 3. The appellant has felt aggrieved by order of Workmen Compensation Commissioner, Meerut, who awarded a sum of Rs. 4,36,758/- to the claimant - Naresh Kumar for the employment injury, which he sustained. 4. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter known as the 'The Act'). The apex court in Om Prakash Batis V. Ranjit, (2008) 12 SCC 212 has held as under: "19 .......................... It is one thing to say that the findings of the Workmen Compensation Commissioner were perverse and in arriving at its findings it failed to take into consideration relevant facts or took into consideration irrelevant factors which were not germane for the purpose of determining the issue, but whether a witness is trustworthy or not, has nothing to do with determining into the question of perversity." 5. Parties are referred as 'claimant' and 'appellant'/'Insurance Company'. 6. The brief facts are that the claimant has preferred the claim petition before the Commissioner, Workmen's Commission Act, Meerut (hereinafter referred to as 'Commissioner'). The claimant was a driver and was driving the vehicle of respondent No. 1 bearing vehicle No. H.R.-26-7339 and the said vehicle was insured with respondent No. 2. On 4.7.2003 when he was plying the said vehicle from Sahibabad to Kanpur, at about 6.00 am an animal came on the road and so as to save the said animal he applied breaks and because of his application of breaks, the accident took place and he sustained injuries. 7. F.I.R. was lodged on 6.7.2003 by the owner of the vehicle. The claimant was admitted in the hospital at Etah and was treated from 4.7.2003 to 5.7.2003. However, he was advised to go to a private hospital where he would get better treatment and, therefore, he was admitted to one Navjeevan Nursing Home at Modinagar where in his right lower limb a rod was inserted. 8. It was contended that he was 30 years of age at the time of accident and he was earning Rs. 4,000/- per month. 8. It was contended that he was 30 years of age at the time of accident and he was earning Rs. 4,000/- per month. It was submitted that all the expenses for medical treatment were borne by the owner and has claimed a sum of Rs. 2,99,491/- with interest at the rate of 12% from the date of accident till the amount is paid. 9. The claimant filed the following documentary evidence namely, the G.D. Entry, the Driving License of the claimant, the cover note of the vehicle, all the bills relating to his injuries coupled with x-ray reports of Chief Medical Officer, Meerut and the Disability Certificate given by CMO, Meerut and x-ray report where the plate was seen. 10. The claimant has filed his affidavit in support of his claim. The respondent No. 1 and 2 filed their replies. The respondent No. 1 i.e. the owner, accepted most of the averments made in the claimant's application and alongwith that filed the documents which would show that it would be the Insurance Company which would be liable namely the policy of the said vehicle, Road Tax Certificate, Permit, Driving License of the driver and the Fitness Certificate whereas the Insurance Company as usual gave a rebuttal of all the averments made in the claim petition. The claimant file his rejoinder also. Respondent No. 2 cross examined the claimant who withstood the cross examination made by respondent No. 2 but accepted that he did not have the appointment letter with him. He was appointed since 2003 by Sri Brijesh Yadav. He was not being given his salary by cheque but was given salary in cash. No signature was taken from him on any register and he withstood the question that he was never engaged and he answered the same in the negative. 11. The claimant has denied the fact that after the accident, though the license was renewed from 2003, he was able to drive the vehicle in question. He has denied that the question whether his medical certificate was forged. 12. The question of law has not been framed by my brother while admitting this appeal but held that matter be decided on substantial questions of law framed by the appellant. They are as under:- "(i) Whether the Commissioner had empowered to award compensation under the Act in absence of any documentary evidence about the employment of the claimant? 12. The question of law has not been framed by my brother while admitting this appeal but held that matter be decided on substantial questions of law framed by the appellant. They are as under:- "(i) Whether the Commissioner had empowered to award compensation under the Act in absence of any documentary evidence about the employment of the claimant? (ii) Whether in absence of any documentary evidence about the income, the Commissioner was justified in awarding the compensation accepting income of Rs. 3,500/- per month instead to accept it as provided under Minimum Wages Act? (iii) Whether the Commissioner was justified in accepting the employment as well as income of the Claimant as a Driver of the vehicle in question only on the basis of oral evidence? (iv) Whether the Commissioner was justified in awarding compensation accepting the 100% loss of earning capacity, whereas the disability certificate discloses only 50% disability to the claimant? (v) Whether the Commissioner had empowered to award compensation excess to the amount as claimed by the Claimant in his Claim Petition? (vi) Whether the claim petition is barred by section 10 of Act, as no notice or information was given to the appellant?" 13. As far as the question (i) is concerned, this is a pure question of fact however, as my brother has raised it while passing the first order, it would be necessary to decide the same. This question and issue will have to be decided in favour of the claimant as the Tribunal has accepted the statement of the owner that the claimant was the driver on the said vehicle. He was admitted in hospital at Etah. The G.D. Entry shows that the owner had given the complaint where claimant is shown as driver. The owner's version has not been contradicted in any way and, therefore this question of fact as decided by the Commissioner is concurred and is answered against the appellant/Insurance Company. 14. This takes this Court to the second question of law. The Commissioner while deciding the income of claimant, has considered his income to be Rs. 3500/-. The claimant claimed that he was earning Rs. 4,000/-. The respondent No. 1 has in his reply submitted that he was paying Rs. 3,000/- as salary and Rs. 1,000/- for his daily allowances hence, this issue as decided cannot be found fault with. 15. The Commissioner while deciding the income of claimant, has considered his income to be Rs. 3500/-. The claimant claimed that he was earning Rs. 4,000/-. The respondent No. 1 has in his reply submitted that he was paying Rs. 3,000/- as salary and Rs. 1,000/- for his daily allowances hence, this issue as decided cannot be found fault with. 15. The appellant before the Commissioner also submitted that the amount to be considered should be the basis of minimum wages however, the Commissioner considered it as Rs. 3,500/- which is neither arbitrary nor fanciful. 16. The question Nos. 2, 3 and 4 are decided together. The fact that the Commissioner held that the driver/claimant had lost capacity of driving and that is how considered that the driver was 100% incapacitated to drive and considered his functional disability to drive the vehicle at 50% is submitted to be erroneous by the counsel for the appellant. His medical certificate was for 50% disability as body as a whole and, therefore, that should have been considered the disability and the award should have been considered in that way. 17. It is submitted by Sri V.C. Dixit that the authority below has fallen in error as the claimant failed to prove the disability certificate and there is an error apparent on the face of record in holding that there was 100% loss of income and the same is liable to be set aside. The other question raised was that the driver had the licence to drive light motor vehicle but there was no endorsement of transport vehicle for driving Maruti van. And lastly, it was contended that the interest could not have been awarded against the Insurance company. The questions of law formulated by the appellant narrated herein above are taken up for answering them. As Against this, learned counsel for the respondents has submitted that as questions of law framed cannot be said to be a question of law. He relies on the judgment of Golla Rajanna etc. etc. Vs. Divisional Manager and another, 2017 (1) TAC 259 (SC), is pressed into service by the appellant. As Against this, learned counsel for the respondents has submitted that as questions of law framed cannot be said to be a question of law. He relies on the judgment of Golla Rajanna etc. etc. Vs. Divisional Manager and another, 2017 (1) TAC 259 (SC), is pressed into service by the appellant. Unfortunately, the said decision cannot aid the appellant as it is a question of fact and has further submitted that once the Commissioner has come to a finding on the earning capacity of a person, which is a question of fact it will attain finality unless it is shown that the finding is perverse and not given by professional Doctor. It is submitted that in this case it is proved by cogent evidence led before the Commissioner that the driver could not drive the vehicle, which goes to show that there would be functional disability to the tune of 100% as held by the Apex Court in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 . 18. Learned counsel for the appellant has relied on Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343 , and the decisions of this High Court in First Appeal From Order No. 247 of 2016 (Jagesh Pratap Singh Vs. Udai Singh and Another) decided on 10.5.2016 and First Appeal From Order No. 4183 of 2012 (Royal Sundaram Alliance Insurance Vs. Karan Agarwal and Others) decided on 3.12.2017. 19. I would have to decide what are the question of law and what are the question of fact in view of the stand taken by the respondent's counsel that issue whether the disability is of 100% or 50% is a pure question of fact which cannot be decided without deciding whether it is a question of law or fact or mixed question of fact and law which goes to the root of the matter in such issue where the Certificate states 50% disability and the Commissioner holds it to be 100%. 20. Question (v) has to be decided in light of the object of the legislation. The learned counsel for the appellant submitted that unlike the Motor Vehicles Act, 1988, the Commissioner was bound to decide the matter as per the provisions of law and could not have been awarded much more than the claimant had claimed. 21. 20. Question (v) has to be decided in light of the object of the legislation. The learned counsel for the appellant submitted that unlike the Motor Vehicles Act, 1988, the Commissioner was bound to decide the matter as per the provisions of law and could not have been awarded much more than the claimant had claimed. 21. The learned counsel for the respondent has submitted that as per the provisions of the Section 4 of Act, it is a beneficial piece of legislation and the objective of the Act was to indemnify the injured or the heirs of the deceased for the employment death or the employment injuries and, therefore, having considered the statement of objects and reasons and therefore the principle enunciated by the apex court should also be applied to this legislation. 22. Sri Nigamendra Shukla, learned counsel for the respondent-claimant has heavily relied on the term 'payable'. Compensation payable to an employee should be given the objective meaning and, therefore, he has submitted that the Commissioner is right in granting more compensation. 23. It is correct that the word 'payable' is used and the apex court has also interpreted that this Act is a piece of beneficial legislation and, therefore, Commissioner had not committed any error in awarding the amount considering loss of earning capacity and the quantum of compensation. 24. The apex court way back in the year 2007 held that it being a beneficial legislation, have to be given a liberal construction and legislative intent has to be given effect thereto. I am fortified in my view by the judgment of the apex court in Oriental Insurance Company Limited Vs. Mohd. Nasir and Another, 2009 (3) T.A.C. 598 (SC) and, therefore, no fault can be found with the Commissioner while awarding more amount. However, as held hereinabove, the answer to question (ii) and (iii) which are answered to some extent in favour of the appellant, this question is answered for the academic purposes only. 25. The provisions of Section 10 of Act is answered by the judgments of the various courts that the said provision will have no applicability as the claimant had time and again requested the owner for intimation. It is not brought on record nor has the Insurance raised this issue before the Commissioner and hence, the said plea, at this stage, cannot be accepted. It is not brought on record nor has the Insurance raised this issue before the Commissioner and hence, the said plea, at this stage, cannot be accepted. The Employer was already under a notice by the claimant as soon as the accident occurred and, therefore, want of notice will not come in the way of the claimant. It is nowhere mentioned in Section 10 of Act, that the notice has to be given to the Insurance Company by the employee. He has already given notice to the employer and hence, the petition was not barred. I am fortified in my view by the decisions of this High Court in Makhanlal Marwari Vs. Audh Beharilal, AIR 1959 All 586 and Division Superintendent, N.R. V. Umrao, AIR 1960 All 283 and the decision of M.P. High Court in Bhagwandas Vs. Pyarelal, AIR 1954 MP 593. 26. Question (iii) and (iv) are intervened. It is submitted by the learned counsel for the appellant that there was no amputation. There was only a fracture. The injury report and the person who has examined the injured has been time and again stated to be giving wrong and exaggerated certificate and the claimant had claimed only Rs. 2,99,491/- knowing fully well that he did not have 100% disability. The Doctor himself had given the certificate that the claimant was having 50% disability as a whole. The said medical certificate and the oral testimony of the doctor is on record and has submitted that the claimant's disability cannot be said to be 100% in absence of any proof that he would in future not be able to drive the vehicle. There was only rod which was inserted in his right lower limb. 27. Per contra, learned counsel for the claimant-respondent has relied on Golla Rajanna etc. etc. Vs. Divisional Manager and another, 2017 (1) TAC 259 (SC), and led emphasis that as the doctor has been examined on oath, the disability cannot be reevaluated which is a question of fact and the Insurance Company has not led any evidence to show that it is perverse. The qualified practitioner has already a qualified person. The Insurance Company has heavily relied on Mohd. Nasir (Supra). I am convinced that once doctor himself has given his disability to be 50% and when there was no amputation, it cannot be said that the driver was unable to undertake any other vocation. The qualified practitioner has already a qualified person. The Insurance Company has heavily relied on Mohd. Nasir (Supra). I am convinced that once doctor himself has given his disability to be 50% and when there was no amputation, it cannot be said that the driver was unable to undertake any other vocation. In light of Mohd. Nasir (Supra), it cannot be said that there was 100% functional disability. It has not been brought on record that he will no longer be able to drive or from 2005 till date it has not been brought on record that he is unable to drive. 28. It is true that assessment is a question of fact but in this case there is perversity which has crept in the judgment as the doctor himself has in his cross examination accepted that he has not treated the claimant. The doctor has only given him the certificate after the claim petition came to be filed. 29. In that view of the matter, as far as the disability part is concerned, the matter will have to be sent back to the Commissioner to decide the actual loss of income as per the Schedule as it is a non scheduled injuries. The said exercise be completed within six months from today. 30. The amount which has already been paid to the claimant may not be recovered. The amount payable would be decided as per the Schedule. 31. Hence, both the appeal and cross objection are partly allowed.