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2018 DIGILAW 788 (ALL)

ORIENTAL INSURANCE CO. LTD. v. LALCHANDRA GOND

2018-04-03

ARVIND KUMAR MISHRA I

body2018
JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—Heard learned counsel for the appellant-insurance company- and the learned counsel for the injured claimant-respondent and perused the record. 2. This is an appeal against award dated 30.7.2012 passed by Court of Workmens’ Compensation Commissioner/Dy. Labour Commissioner, Azamgarh, whereby compensation amount Rs. 3,67,416/- alongwith accruing interest at the rate of 12% per annum has been directed to be paid to claimant-respondent No. 1. 3. Facts of this case as reflected from record suggest that the injured was employed as driver of Truck No. U.P. 50 F/3813 at monthly salary of Rs. 5500/-. As per the direction of the vehicle owner, the claimant-respondent No. 1 was driving the bus around 4 P.M. on 22.9.2009 going to Azamgarh from Robertsganj district Sonbhadra, the driver was checking wheel of his truck at Market of village Maddhupur within circle of police station- Robertsganj district Sonbhadra, in the meanwhile, some tractor came from behind and collided the same with the claimant respondent No. 1, thus causing serious injury to him and due to this accident, the claimant-respondent No. 1 sustained permanent disability on his right hand. Because of the aforesaid accident, the claimant-respondent No. 1 was unable to drive any vehicle and has been removed from service by the vehicle owner. Documents pertaining to Expenses incurred in treatment of the claimant respondent No. 1 were proved before the tribunal. It was claimed that the earning capacity of the claimant-respondent No. 1 had diminished. The disability occurred during the course of the employment while the vehicle was being driven at the direction of the vehicle owner. The claimant-respondent stated his age about 48 years. It was claimed that the concerned Truck UP 50 F/3813 was insured with the present appellant Insurance Company at the time of the accident and there was existing a valid insurance policy. The petitioner respondent No. 1 claimed in all compensation amount Rs. 3,83,520/- under various heads alongwith interest at the rate of 18% per annum. 4. The case was contested by the insurance company and written statement was filed denying the claim so raised and as many as five specific issues were framed by the tribunal for disposal of the claim petition: (i) Whether the petitioner respondent-Lalchandra Gond- was driver of the Truck No. U.P. 50 F/3813 and was getting salary Rs. 4. The case was contested by the insurance company and written statement was filed denying the claim so raised and as many as five specific issues were framed by the tribunal for disposal of the claim petition: (i) Whether the petitioner respondent-Lalchandra Gond- was driver of the Truck No. U.P. 50 F/3813 and was getting salary Rs. 5500/- per month, and he was on duty on the date of the incident and was driving the said vehicle on 22.2.2009 from Robertsganj, Sonbhadra to Azamgarh? (ii) Whether the driver was driving the aforesaid bus on aforesaid date at the direction of the vehicle owner? (iii) whether the aforesaid truck was not insured with the present appellant-insurance company- at the time of the accident? (iv) Whether the clamaint was possessing valid and effective driving license to drive the vehicle in question at the time and on the date of the accident? (v) The last issue related to be factum of compensation if any- then how much? 5. The Workmens’ Compensation Commissioner after recording specific finding on all the aforesaid issues No. 1, No. 2, No. 3 and issue No. 4 against Insurance Company- the present appellant. 6. In so far as factum of assessment of compensation amount is concerned, detailed finding has been recorded after taking note of various facts of the case. In the final count conclusion was drawn, inter alia, relying on various citations of the Hon’ble Apex Court and after considering the entirety of the case, wholesome view was taken to the ambit that, no doubt the disability certificate shows disability to the extent and magnitude of 46% in the right hand of the claimant-respondent No. 1, but in view of the law laid down in the various cases (referred to in the award of the commissioner), the Workmens’ Compensation Commissioner was of the view that considering the nature of the job and looking to the disability incurred in the accident, the overall disability shall be taken to be 100% and it cannot be deviated from that point, therefore, the Commissioner awarded the compensation amount on the basis of the above analogy and reasoning, which under facts of this case is found just and reasonable. 7. However, learned counsel for the claimant respondent No. 1 has based his submission on the decision of Hon’ble Apex Court in the case of Gola Rajjana Etc. Etc. 7. However, learned counsel for the claimant respondent No. 1 has based his submission on the decision of Hon’ble Apex Court in the case of Gola Rajjana Etc. Etc. v. Divisonal Manager and another, 2017 (1) TAC 259 (SC), whereby it has been laid down that re-appreciation of facts cannot be done by the High Court. 8. Submission is sustained for reason that this is an appeal preferred by the Insurance Company and the Insurance Company is expected not to contend on factual aspects of the case but on the legal aspect on the point of disability incurred by the claimant and compensation awarded to the claimant-respondent No. 1. 9. Learned counsel for the appellant vehemently contended that in so far as the point of disability is concerned, it is to be seen that the disability of one limb of the body would not ipso facto be counted as disability to the extent of 100%. 10. This Court does not agree with the view so mooted for two specific reasons; first, it is to be seen- what was the nature of the employment, and secondly the injury was caused while the claimant was in the employment of owner of the vehicle. It is the ratio of the Hon’ble Apex Court that was acted upon by the commissioner and determined that the disability so incurred would be rated 100% for the purpose of assessment of compensation. 11. In view of above, there is no error in the finding recorded by the Commissioner and the compensation awarded, therefore, this First Appeal From Order sans merit and the same is dismissed. 12. Parties shall bear their own cost.