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2019 DIGILAW 1441 (KAR)

Prasanna Kumar v. Shivanandaiah

2019-06-26

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. The claimant filed the present miscellaneous first appeal against the judgment and order dated 01.04.2015 made in ECA.No.27/2014 on the file of the Senior Civil Judge and Additional MACT, Challakere (hereinafter referred to as 'the Tribunal') whereby, the claim petition filed under Section 22 of the Workmen's Compensation Act, 1923/Employee's Compensation Act, 1923 (hereinafter referred to as ' the E.C.Act' for brevity) was dismissed. 2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal. 3. The claimant filed the claim petition seeking compensation for the injuries suffered during the course of his employment, contending that on 26.11.2006, at about 2.15 p.m., near S.H.-19, Road of Chikkammanahalli Village of Challakere, within the limits of Talak Police, while the petitioner was discharging his legitimate duty as a driver of the vehicle bearing registration No.KA-21-1191 belonging to respondent No.1, he met with an accident. Due to the accident, he sustained fracture of left calcaneum, mild dislocation and lateral condyle of right radius and other injuries and he has taken treatment at Vinayaka Orthopedic Center, Challakere under expert surgeon. He further contended that he was working as driver under respondent No.1 for monthly wages of Rs.4,000/- and batta at Rs.100/- per day. Therefore, he sought for compensation. 4. Respondent No.1 filed objections denying the averments made in the claim petition and contended that he is the RC owner of the Maxi Cab bearing registration No.KA-21-1191, same was insured with respondent No.2 and the policy was in force as on the date of the accident admittedly which occurred on 26.11.2006, during the course of the employment of the petitioner. 5. Respondent No.2 - insurance company filed the objections and contended that the policy issued in respect of the passenger carrying commercial vehicle, and the liability is only to the vehicle bearing No.KA-21- 1191 in favour of respondent No.1 with effect from 28.03.2006 to 27.03.2007. The conditions of the policy would not be applicable to the petitioner and the same are violated. The driver was not having valid driving license as on the date of the accident and also denied the relationship of master and servant between the employee and the employer and monthly wages as alleged and sustained injuries in the course of the employment. Therefore, he sought for dismissal of the appeal. 6. The driver was not having valid driving license as on the date of the accident and also denied the relationship of master and servant between the employee and the employer and monthly wages as alleged and sustained injuries in the course of the employment. Therefore, he sought for dismissal of the appeal. 6. Based on the pleadings, the tribunal framed the following issues: "1. Whether petitioner proves that while he was discharging the duty as a driver under the employment of respondent No.1, sustained injuries in the road accident that was occurred on 26/11/2006 at about 2:15 P.M. near SH-19 road of Chikkammanahalli village within the jurisdiction of Talaku P.S.? 2. Whether the petitioner is entitled for the compensation? If so, how much? from whom? 3. What award?" 7. In order to establish the case, the claimant examined himself as PW.1 and the doctor, who treated him as PW.2 and also got marked documents as Exs.P.1 to P.8. The respondent No.1 got himself as RW.1 and respondent No.2 examined the Senior Assistant of the insurance company as RW.2 and got marked the insurance policy as Ex.D.1. 8. The tribunal after considering the entire materials on record as recorded the finding that the claimant has proved that he was discharging his duty as driver under the employment of respondent No.1, it was during the course of his employment and sustained injuries in the accident which occurred on 26.11.2016 but recorded that he is not entitled for any compensation. Accordingly, the tribunal by the impugned judgment and order dated 01.04.2015 dismissed the appeal. Hence, the present appeal is filed by the claimant. 9. I have heard the learned counsel for the parties to the lis. 10. Sri R. Shashidhara, learned counsel for the appellant/petitioner contended that the impugned judgment and order passed by the tribunal dismissing the petition is erroneous and contrary to the materials on record. He further contended that when the tribunal recorded the fact that the accident occurred on 26.11.2006, during the course of his employment has erred in dismissing the petition. He would further contend that the tribunal erred in dismissing the petition mainly on the ground that the appreciation of oral and documentary evidence placed by the claimant is not just and proper. He would further contend that the tribunal erred in dismissing the petition mainly on the ground that the appreciation of oral and documentary evidence placed by the claimant is not just and proper. It is evident that the claimant sustained injuries in the road accident and same occurred due to rash and negligent driving of the petitioner himself and which do not cover under Sub-section 1 of Section 3 of the E.C.Act. The said finding is erroneous and contrary to the very provision of Section 3 of the E.C.Act and therefore, he sought to allow the appeal. 11. Per contra, Sri M.S.Nagaraja, learned counsel for the owner/respondent No.1 sought to justify the impugned judgment and order. 12. Sri P.B.Raju, learned counsel for respondent No.2, fairly submitted that the learned Judge proceeded to dismiss the appeal mainly on the ground that the accident was due to the rash and negligent driving of the claimant himself which is not the intention and enactment of the provisions of Section 3 of the E.C.Act and therefore, he sought for disposal of the appeal. 13. This Court while admitting the appeal framed the following substantial questions for consideration: 1. Whether the Tribunal is justified in dismissing the claim petition when the Tribunal recorded a finding that the claimant has proved that the accident occurred on 26.11.2006 during the course of his employment under respondent No.1? 2. Whether the Tribunal is justified in dismissing the claim petition ignoring the oral documents on record? 14. Having heard the learned counsel for the parties, it is the specific case of the claimant that he is the driver working under respondent No.1 and the accident occurred on 26.11.2006 during the course of his employment. The same is not disputed by the owner / respondent No.1 who filed the objections and contended that the claimant was working under him as driver for monthly wages of Rs.4,000/- and Rs.100/- per day as batta and the accident occurred during the course of employment. The insurance company though filed objections, the fact remains that insurance company has not adduced any contrary material to disprove the claim of the claimant. 15. The insurance company though filed objections, the fact remains that insurance company has not adduced any contrary material to disprove the claim of the claimant. 15. The tribunal considering the entire materials on record answered issue No.1 in affirmative by holding that the claimant proved that while he was discharging duty as the driver under the employment under respondent No.1 has sustained injuries in road accident that occurred on 26.11.2006 at about 2.15 p.m., near SH-19 Road of Chikkammanahalli village of Challakere within the jurisdiction of Talaku police station. Having been held that the accident occurred during the course of employment, the tribunal proceeded to dismiss the petition erroneously on the ground that the accident occurred was due to rash and negligent driving of the claimant. 16. The provisions of Sub-section 1 to Section 3 of the E.C.Act reads as under: "3. Employer' s liability for compensation.- (1) If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-- (a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days; (b) in respect of any injury, not resulting in death, or permanent total disablement caused by an accident which is directly attributable to-- (i) the employee having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or (iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee." It is clear from the above provision that if a personal injury is caused to an employee by the accident arising out of and in the course of employment his employer shall be liable to pay compensation in accordance with the provisions of this Chapter. 17. 17. The learned single Judge failed to notice that it is well settled that E.C.Act is a piece of social security, for welfare and protection to the workmen and therefore, the provisions of the Act should not be interpreted too narrowly which may defeat the purpose of the Act which was introduced by the legislature. The primary purpose of the Act is to make the employer and insurer of the workmen responsible for the loss or costs incurred for the injuries or death which ought to have happened while the workman that arise out and during the course of employment. 18. The learned Judge wrongly proceeded to hold that the accident occurred on the account of rash and negligent driving of the claimant himself, that is not the word used nor the intention of the legislature. Therefore, the substantial questions framed in present case are held in negative and the tribunal is not justified in dismissing the petition when the tribunal recorded the finding that the accident occurred during the course or arising out of the employment and it is not at all challenged by the insurance company. 19. For the reasons stated above, the appeal is allowed. The impugned judgment and order dated 01.04.2015 made in ECA.No.27/2014 on the file of the Senior Civil Judge and Additional MACT, Challakere is hereby set aside and the matter is remanded back for reconsideration on merits strictly in accordance with law. Both the parties are permitted to adduce and produce evidence. The tribunal is directed to dispose of the claim petition expeditiously subject to the co-operation of both the parties.