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2018 DIGILAW 43 (MAN)

National Insurance Company Ltd. v. Md. Sanathoi

2018-09-07

RAMALINGAM SUDHAKAR

body2018
ORDER : 1. The National Insurance Company Limited has filed this appeal challenging the Judgment and Order of the Commissioner for Workmen's Compensation, Manipur passed in Claim Case No. 22 of 2006 dated 7.7.2011. The appeal was filed on 25.4.2013, and thereafter notice was issued, however, the case has not been admitted so far. 2. Having heard Mr. Nirpenchandra, learned counsel appearing for the appellant/Insurance Company, the appeal is admitted on the following questions of law. (i) Whether the Ld. Commissioner has the authority and power to assess the loss of earning capacity of the claimant on its own merit without the specific findings by a qualified medical practitioner? (ii) Whether the relevant factor adopted by the Commissioner in assessing the amount of compensation is applicable to the claimant? (iii) Whether the driver of the insured vehicle was holding an effective Driving License at the time of the accident? (iv) Whether the insurance Policy covers the risk of the injury suffered by the 2nd handyman cum second driver? 3. Heard Mr. H. Dijen, learned counsel appearing for the respondents. The brief facts are as follows: The respondent No. 1, workman was employed by respondent No. 2, Mrs. Elizabeth Hrangchal, to work as a handyman-cum-second driver in respect of a vehicle bearing Tata Truck registration No. MN01/5564 which was driven by a driver, namely, Mr. Ingachao (alias Ingajao) Kabui. The truck was carrying stone and on 29.10.2003 at about 9:00 a.m. when the vehicle was plying near Meijrao Saw Mill under Wangoi Police station area, it suffered an accident as a result of which respondent No. 1, employee, suffered serious head injury and other multiple injuries on his right upper limb and lower resulting in permanent total disablement. He was treated in a hospital. Despite medical treatment, he suffered disability, as a result of which he filed a claim for compensation assisted by his mother. It appears that respondent No. 2/owner of the Truck, gave an amount of Rs. 40,000/- (Rs. Forty thousand only) at the first instance to enable him (injured employee) to take medical treatment. 4. On the basis of the claim before the Commissioner Workmen's Compensation, the case was taken up and notice was issued. The owner was respondent No. 1, and the present appellant was respondent No. 2 before the Commissioner, Workmen's Compensation. Before the said authority, following 4 (four) questions were raised and adjudicated: 1. 4. On the basis of the claim before the Commissioner Workmen's Compensation, the case was taken up and notice was issued. The owner was respondent No. 1, and the present appellant was respondent No. 2 before the Commissioner, Workmen's Compensation. Before the said authority, following 4 (four) questions were raised and adjudicated: 1. Whether the applicant is a workman within the meaning of the said Act? 2. Whether the accident to the applicant arose out of and in the course of the applicant's employment? 3. Whether the amount of compensation claimed is due or any part of the amount? 4. Whether the opposite parties are liable to pay such compensation as is due? 5. Evidence was let in by the claimant with the Exhibits. The owner and the Insurance Company filed a written statement and witnesses. The owner/first opposite party before the Commissioner Workmen's Compensation, did not dispute the fact that injured workman was employed under her. She also did not dispute that the accident arose out of and in the course of employment. The Insurance Company on its part, also does not dispute that the injured employee is workman within the meaning of the Act and that he suffered injuries in the course of employment. The 2 (two) other questions that remained in contest was the compensation amount and the other issue is liability. 6. The present appeal is focused on Question No. 3 & 4 i.e. the quantum of compensation and other on liability. 7. We shall first address the issue of compensation. In this case, a claim for a sum of Rs. 4,50,000/- (Four lakhs fifty thousand) only was made stating that it is a permanent total disablement and the employee handy-man-cum-second driver cannot pursue the same employment as before. To support this plea, the evidence of doctors were let in and the doctors on the basis of the injuries and his post injuries recovery status assessed disability of 60% and they also opined that it cannot improve in the course of time. Doctor S. Manikanta Singh has given a detailed evidence on this issue. 8. The Commissioner Workmen's Compensation, relied upon 2 two decisions of the Supreme Court to come to the conclusion that the injury suffered by the employee has completely paralyzed him from regular permanent employment. Doctor S. Manikanta Singh has given a detailed evidence on this issue. 8. The Commissioner Workmen's Compensation, relied upon 2 two decisions of the Supreme Court to come to the conclusion that the injury suffered by the employee has completely paralyzed him from regular permanent employment. As a result the determination of the compensation was made in the following manner: (i) The judgment of the Hon'ble Supreme Court of India in the case of Pratap Narain Singh vs. Sriniwas Sabatta, AIR 1976 SC 222 , is that a Carpenter, who is permanent partial disablement as defined by section 2(1)(g) of that said Act, is total disablement as defined by section 2(1) of the said Act for the reason that the workman concerned is unfit for the work of Carpenter by his disablement. Another judgment in the case of A.T. Janardhan vs. United India Insurance Co. Ltd. and Another, 2008 (3) TAC 279 (SC) is that a driver, who is permanent partial disablement, is total disablement as defined by section 2(1)(1) of the said Act for the reason that the workman concerned is unfit for the works of driver. (ii) Therefore, I hold the view that the applicant is "total disablement" as defined by section 2(1)(1) of the said Act read with the said judgments of the Apex Court and the High Court, Therefore, the provisions of section 4(1)(c)(ii) and the said Act to assess the loss of earning capacity of the applicant as resulted from his instant personal injury as pointed out by the opposite party No. 2 in para No. 4 of his written arguments are not invoked by me in the instant applicant's disablement which is not a permanent partial disablement being within the purview of the said provisions. (iii) Under section 4(1)(b) of the said Act the amount of compensation payable for the personal injury resulting into "permanent total disablement" is an amount equal to 60 % of monthly wages of the workman (subject to maximum of Rs. 4,000/-) multiplied by relevant factor of the age of the workman as on his last birthday immediately preceding the date on which the compensation fell due or Rs. 90,000.00, whichever is more. The applicant claims that he receives monthly wages Rs. 2,50,000.00 and he is aged 19 years at the time of the instant accident. The opposite party No. 1 deposes that monthly wages of the applicant is Rs. 90,000.00, whichever is more. The applicant claims that he receives monthly wages Rs. 2,50,000.00 and he is aged 19 years at the time of the instant accident. The opposite party No. 1 deposes that monthly wages of the applicant is Rs. 2,200.00, which is accepted by the applicant and the opposite party No. 2 before me thereby I have no comment thereon. The applicant is not able to adduce any evidence with respect to his date of birth and the date of birth of the applicant is not settled by the parties before me. As such, I refer to the Medical Treatment Records before me containing the first statement of the injured applicant. The immediate medical treatment record under OPD No. 6394 dated 29-10-2003 of PHCS Lilong (Exbt. A/3) recorded that the age of the applicant is 18 years as on 29.10.2003. Accepting and considering his such age of 18 years as on 29.10.2003, I decide that the applicant is born on 29.10.1985. The instant accident occurs on 29.10.2003 there by the compensation falls due on 29.10.2003. Taking 29.10.1985 as the date of birth of the applicant the last birth day of the applicant immediately preceding 29.10.2003 is 29.10.2002. The applicant is aged 17 years as on his such last birth day (29.10.2002). The relevant factor of this 17 years is 227.49 as specified in the Schedule IV to the said Act. The monthly wages of the applicant is Rs. 2,200 only as agreed by the parties. The amount equal to 60% of his monthly wages of Rs. 2,200.00 multiplied by 227.49 is the amount of compensation for the total disablement of the applicant as provided under section 4(1)(b) of the said Act. (iv) 60% of Rs. 2,200.00 multiplied by 227.49 is Rs. 3,00,286.00 (Rupees three lakhs two hundred eighty six) only. There is no amount to be recovered by the opposite parties from the amount of compensation payable to the applicant. Therefore, this question is settled that the amount of compensation payable to the applicant under section 4(1)(b) of the said Act is Rs. 3,00,286.00 only and not Rs. 4,50,000.00 as claimed by the applicant. The amount of compensation due to the applicant from his employer is Rs. 3,00.286.00 only. 9. The appellant has not controverted the evidence let in by the injured claimant. 3,00,286.00 only and not Rs. 4,50,000.00 as claimed by the applicant. The amount of compensation due to the applicant from his employer is Rs. 3,00.286.00 only. 9. The appellant has not controverted the evidence let in by the injured claimant. The mere objection has been made and the Commissioner Workmen's Compensation has relied upon the evidence of the Doctor and the decisions of the Apex court in the cases referred to above and has come to a conclusion that in the case of the injured claimant, a handyman- cum-driver is completely paralyzed from regular employment and granted the compensation and in this view of the matter, this court does not find any error in the determination of the compensation by the competent authority, therefore, the said plea raised by the appellant stands rejected and is answered against the appellant. 10. The next question raised, is on the plea that the petitioner did not hold a valid driving license. This is answered in Question No. 4 by the Commissioner. To be more precise, the findings are set out as follows:- "The opposite party No. 1 is the employer of the applicant as defined by section 2(1)(e) of the said Act. The applicant is a workman within the meaning of the said Act and the instant accident to the applicant arises out of and in the course of the applicant's employment. The opposite party No. 1 accepts the liability to pay compensation for the personal injury to the applicant. He pays a sum of Rs. 40,000.00 (Rupees forty thousand) only to the applicant as compensation informally at the time of medical treatment of the injury of the applicant. He fails to make payment of half-monthly compensation under section 4(1)(d) of the said Act. Therefore, the opposite party No. 1 is liable under sections 3 and 4 of the said Act to pay the compensation as is due to the applicant. As per the Insurance Policy (Exbt. He fails to make payment of half-monthly compensation under section 4(1)(d) of the said Act. Therefore, the opposite party No. 1 is liable under sections 3 and 4 of the said Act to pay the compensation as is due to the applicant. As per the Insurance Policy (Exbt. A/15) read with the proviso to sub-section (1) of section 147 of the Motor Vehicles Act, 1988 the opposite party No. 2 is the insurer of the opposite party No. 1 for the purposes of legal liabilities arising out of the use of the said vehicle including the compensation payable by the opposite party No. 1 under the said Act for the personal injury to or death of the employees engaged in the driving of the said vehicle. As per records before me there is no case of breach of the term and the conditions of the contract of insurance by the opposite party No. 1 at the time of the instant road traffic accident of the said vehicle. The said vehicle is driven by one Mr. Ingachao (alias Ingajao) Kabui, who holds a valid and effective Driving License (Exbt. A/16), at the time of the instant road accident of the said vehicle. The Driving License of the said driver is found valid and effective at the time of the instant road traffic accident of the said vehicle as per the report of the local inspection made with the applicant and the opposite party No. 2 in the District Transport Office (Imphal West) which maintained the records of the renewal or otherwise of the said Driving License, I do not find any evidence adduced by the opposite party No. 2 showing the ground under which he is not liable to indemnify the opposite party No. 1 the liability to pay compensation as is due to applicant. Therefore, the opposite party No. 2 being an insurer of the opposite party No. 1, liable under section 147(5) of the Motor Vehicles Act, 1988 to indemnify the opposite party No. 1 the liability to pay compensation as is due to the applicant." 11. In the result, it appears to be that the vehicle was driven by Ibochou who had a valid Driving License (Exbt. A/16), therefore, the plea of holding no valid driving license cannot be accepted. In any event, no material has been placed to dispute the finding of Commissioner. In the result, it appears to be that the vehicle was driven by Ibochou who had a valid Driving License (Exbt. A/16), therefore, the plea of holding no valid driving license cannot be accepted. In any event, no material has been placed to dispute the finding of Commissioner. Therefore, this question is also answered against the appellant in favour of the first respondent. 12. The last issue raised is that the insurance policy does not cover this injury of the handyman-cum-driver. This plea has to be rejected at the outset because the policy (Annexure-A/10) at page 51 includes the Driver, Cleaner, Conductor Number 2. Therefore, this plea is also held against the appellant in favour of the first respondent. 13. In the result, appeal stands dismissed. The Claimant is entitled to receive the amount as per order of the Commissioner Workmen's Compensation, Manipur.