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2018 DIGILAW 451 (KAR)

Oriental Insurance Company Ltd. v. Ulavappa

2018-04-02

KRISHNA S.DIXIT

body2018
JUDGMENT : This appeal is directed against the Judgment and Order dated 18.02.2008 rendered by Labour Officer cum Commissioner for workmen’s compensation, Hubballi whereby the compensation of Rs.1,46,909/- has been awarded in favour of the claimant with 12% interest. The Commissioner has also levied a penalty of Rs.25,000/-. 2. The brief facts stated are; the Claimant was employed as a cleaner in the truck bearing registration No.AP-28/X-0318 belonging to the ownership of respondent- Mahesh Kumar K ; he was drawing a monthly wage of Rs.5,000/- and a daily batta of Rs.35/- ; on 11.10.2006, on the instruction of the truck owner, the driver had taken the truck from Ballari to Karwar ; when the journey was half a through the accident occurred near Sukhsagar Dhaba on Hubballi-Gadag road because of rash and negligent driving ; the truck collided with the bullock cart head on and eventually the claimant fell down on the road sustaining grievous injuries. 3. The respondent-claimant filed the claim petition on 26.02.2007 seeking huge compensation amount alleging that he sustained grievous injuries because of the vehicular accident that happened in the course of employment. The appellant-Insurance company had resisted the claim by filing the Written Statement specifically taking up a contention as to the absence of ‘employer-employee relationship’ and also it had disputed the quantum of wages. The respondent-owner of the vehicle neither filed the Written Statement nor participated in the proceedings. 4. To prove the claim, the claimant was examined as PW-1 in whose evidence 10 documents came to be marked as Ex.A-1 to A-10. The claimant had also examined Dr. Mahantesh Hanchinal who had treated him. From the side of the respondents none was examined, although the Insurance company got marked the Insurance Certificate cum policy as Ex.R-1. 5. Considering the pleadings of the parties and the evidence tendered by them, the Commissioner for Workmen Compensation has made the impugned Judgment and order awarding the compensation which are now in challenge. 6. From the side of the respondents none was examined, although the Insurance company got marked the Insurance Certificate cum policy as Ex.R-1. 5. Considering the pleadings of the parties and the evidence tendered by them, the Commissioner for Workmen Compensation has made the impugned Judgment and order awarding the compensation which are now in challenge. 6. The counsel for the Appellant-Insurance Company submits that, the evidence of PW-1, the claimant does not generate confidence as to he being employed with the Respondent-Owner of the truck in as much as he has never met the owner of the truck; he was engaged by the driver of the truck who was not injured in the accident; he has not produced even a small piece of paper to prove his employment ; he never lodged the police complaint nor did he make any statement to the police under Section 161 of the Cr.P.C. In substance, the counsel vehemently argues that there is absolutely no legal material required for establishing the vehiculum juris of employment. 7. I have carefully considered the deposition of PW-1 who is the Claimant. Apparently he is a rank illiterate. His signature made in Kannada language itself is the testimony of this. He has specifically admitted that he has never seen the owner of the vehicle. But that alone is not sufficient to disprove the employer-employee relationship in as much as ordinarily the cleaners are engaged by the drivers for and on behalf of the vehicle owners. It is also a common knowledge which this Court presumes acting under Section 114 of the Evidence Act, 1872 that no appointment letters would be ordinarily issued to the cleaners except where the owner has a fleet of vehicles and the business is normed. That is not the case here. Therefore, absence of document may not necessarily disprove the presence of employer-employee relationship. 8. The counsel for the Appellant-Insurance Company next contends that if the claimant was really injured in the accident, it is he who should have lodged the police complaint whereas, it is the owner of the bullock cart who had lodged the FIR. It is of general understanding that when an accident takes place, ordinarily the injured or the aggrieved persons become wild and that to escape from the wrath, the drivers and cleaners run away from the spot to save their body and soul. It is of general understanding that when an accident takes place, ordinarily the injured or the aggrieved persons become wild and that to escape from the wrath, the drivers and cleaners run away from the spot to save their body and soul. The same has happened here too and the FIR is lodged by some other person. Therefore, this contention also does not come to the aid of the Insurance Company. 9. The counsel for the Appellant next contended that in the said accident, if the Claimant is injured, then the driver also ought to have been injured, whereas, driver is not injured at all. I have carefully considered the evidentiary material placed on record. The Claimant has specifically stated as to why he alone was injured. He has explained that the side where ordinarily the cleaner sits in a truck had hit the bullock cart and therefore the question of driver also getting injured is ruled out. This is a plausible explanation as to why only the cleaner is injured and the driver is not. Therefore, this contention also fails. 10. The counsel for the appellant next contended that, although the Claimant had alleged that his monthly wages were Rs.5000/- + daily batta of Rs.35/-, the commissioner is not justified in taking the monthly wages at Rs.3,000/-. I have seen the notional monthly wage chart ordinarily operated by the Lok Adalath which mentions the monthly wages, in such case are Rs.3,500/-. Therefore, I do not find any lacuna in the commissioner taking it at Rs.3,000/-, which is Rs.500/- less. 11. The counsel for the Appellant next contended that the physical disability is stated to be 45% by the PW-2 who was examined as expert medical witness. The certificate itself shows that the PW-2 is an Orthopedic surgeon who has treated the Claimant. The Commissioner has approximated the physical disability to the percentage of loss of income which according to the counsel is defective. He points out that, ordinarily the loss of income is taken to be 1/3 to 1/2 of the medical disability/physical disability. However, I am not impressed by this argument either in as much it is not open to the Court to substitute its feel for the ‘feel of the expert’ in the absence of impeaching material on record. Therefore, this contention is liable to be rejected. 12. However, I am not impressed by this argument either in as much it is not open to the Court to substitute its feel for the ‘feel of the expert’ in the absence of impeaching material on record. Therefore, this contention is liable to be rejected. 12. The counsel for the Appellant lastly contended that the Commissioner was not justified in levying a fine of Rs.25,000/- in as much as the fact-matrix warranting invocability of the provision of levy of fine in the WC Act, 1923 was lacking. I have examined the record and I opine that the counsel is justified in making this submission. Therefore, the levy of fine is set aside, since no reasons are assigned by the Commissioner for exercising this discretion. 13. Except the aforesaid points, no other argument has been advanced. Accordingly, I pass the following order: ORDER The appeal is partly allowed. The levy of fine of Rs.25,000/- alone is set aside. The impugned Judgment and Order are confirmed, in the rest. The commissioner for workmen’s compensation is hereby directed to release the amount to the claimant at once and without brooking any delay, however after ascertaining his credentials.