Divisional Manager, United India Insurance Co Ltd v. Akbar Ali
2019-04-01
P.G.M.PATIL
body2019
DigiLaw.ai
JUDGMENT : P.G.M. PATIL, J. 1. The insurer United India Insurance Company Limited being aggrieved by the judgment and order dated 10.05.2012 passed by the Commissioner for Workmen's Compensation, Raichur in WCA Nos. 203/2008 and 204/2008 has filed these appeals. 2. The brief facts of the case are as follows; The claimants made claim petition before the Commissioner for Workmen's Compensation, Raichur against respondent Nos. 1 and 2 seeking compensation for the injuries sustained by the claimant employees in the course of their employment. The claimants have stated before the learned Commissioner for Workmen's Compensation that the claimant Akabar Ali in WCA No.203/2008 has stated that he was working as driver in the lorry bearing No. AP-21/V-1357 belonging to the respondent No.1, claimant Veeresh in WCA No.204/2008 was working as a cleaner in the said lorry, claimants in WCA Nos. 205/2008 to 208/2008 were working as hamals in the said lorry. It is further stated that on 31.12.2007 on the instructions of respondent No.1 the employer, the claimants carried load in the said lorry from Bellary to Challikeri and after unloading the load, they were returning on NH 19. When the lorry driven by the claimant in WCA No.203/2008 was proceeding on the proper side of road, another lorry came from opposite direction in a rash and negligent manner and dashed to their lorry at about 03.30 a.m. Due to said accident all of them sustained grievous injuries. They were shifted to Primary Health Center Torangal and thereafter they have taken treatment in different hospitals. Rampur police have registered case in Crime No. 79/2007 in respect of the said accident. The claimants have further stated that due to the injuries in the said accident they are suffering from permanent disability. The claimant in WCA No. 203/2008 has stated that respondent No.1 was paying salary of Rs.4,000/- per month to him, claimant in WCA No. 204/2008 has stated that respondent No.1 was paying Rs.3,500/- per month and claimant Nos. 3 to 6 have stated that respondent No.1 was paying coolie of Rs.150/- per day. Therefore, all the claimants being employees of respondent No.1 made the said claim petitions. 3. Respondent No.1 owner of the offending vehicle and respondent No.2 insurer of the said vehicle appeared before the learned Commissioner for Workmen's Compensation and filed their written statements. 4.
3 to 6 have stated that respondent No.1 was paying coolie of Rs.150/- per day. Therefore, all the claimants being employees of respondent No.1 made the said claim petitions. 3. Respondent No.1 owner of the offending vehicle and respondent No.2 insurer of the said vehicle appeared before the learned Commissioner for Workmen's Compensation and filed their written statements. 4. Respondent No.1 filed written statement admitting that the claimants were working under him as driver, cleaner and coolies respectively and have sustained injuries in the accident. He has further stated that his vehicle was duly insured with respondent No.2 and policy was in force. The driver of the vehicle was having valid and effective driving licence. Therefore, liability to pay the compensation may be saddled on Respondent No.2. 5. Respondent No.2 filed written statement denying the averments made in the claim petitions. He denied that the claimants were driver, cleaner and hamals in the lorry belonging to the Respondent No.1 and that there was no accident, and they have not sustained any injuries. Further he denied that there was relationship of employees and employer between claimants and the respondent No.1 and that the claimants are suffering from any permanent disability. Therefore, the claim petitions against him be dismissed. 6. Claimants got examined themselves before the learned Commissioner for Workmen's Compensation and got marked 19 documents. They also got examined the doctor who has examined and issued disability certificates in respect of the claimants. Thereafter respondent Nos. 1 and 2 have also got examined their witnesses and got marked copy of insurance policy. The learned Commissioner for Workmen's Compensation after hearing all the parties passed the judgment awarding compensation of Rs.2,03,318/-, Rs.1,67,356/- Rs.1,61,280/-, Rs.1,61,280/-, Rs.1,58,364/- and Rs.1,36,653/- respectively together with interest at 12% per annum from the date after 30 days of the date of accident. 7. Learned counsel for the appellant submitted that the Court below has not properly assessed the disability of the claimants and on erroneous basis huge compensation is awarded and that the same is liable to be reduced. Learned counsel further submitted that the insurer is liable to satisfy two claims and that though the claimants are residents of Raichur, they got produced disability certificates issued by the doctor at Bellary only for the purpose of claiming compensation and therefore, sought for reduction in the compensation. 8.
Learned counsel further submitted that the insurer is liable to satisfy two claims and that though the claimants are residents of Raichur, they got produced disability certificates issued by the doctor at Bellary only for the purpose of claiming compensation and therefore, sought for reduction in the compensation. 8. Per contra learned counsel for the claimants submitted that all the claimants being the employees of respondent No.1, their risk is covered under the policy. Since the vehicle involved in the accident is heavy goods vehicle and that in case of heavy goods vehicle seven persons are permitted to travel in the said lorry as coolies or hamals including the driver. Learned counsel further submitted that the doctor examined by the claimants is a competent doctor. Therefore, his evidence and certificate issued by him cannot be ignored. 9. Heard both the counsels for the parties. The following questions arise for consideration before this Court; (1) Whether the Commissioner for Workmen's Compensation Raichur was legal and correct in accepting the evidence of the claimants and the doctor and awarding the compensation? (2) Whether the appellant Insurance Company has made out any grounds to interfere with the impugned judgment and order? 10. The main ground on which the Insurance Company is seeking to reduce the compensation awarded in favour of the claimants is that the claimants have not proved that they are suffering from disability and that they sustained injuries in the course of employment and further that the risk of only two persons is covered under the policy. The claimants have got examined themselves before the learned Commissioner for Workmen's Compensation. They have also got examined Dr. M.Rajesh in order to prove the disability certificates issued by him in respect of the claimants and the said Doctor was subjected to cross examination on behalf of the respondent insurer. Dr.M.Rajesh has deposed that he is running Gourishankar Ortho Care Center at Bellary since many years. He has stated about the examination of the claimants in the case and that he has issued disability certificates in respect of the said claimants. He has gone through the documents of treatment in respect of them. He has given details of the disability suffered by each of the claimants. In his cross examination his competency to assess the disability and issue of disability certificates is not at all disputed.
He has gone through the documents of treatment in respect of them. He has given details of the disability suffered by each of the claimants. In his cross examination his competency to assess the disability and issue of disability certificates is not at all disputed. Some suggestions are put to him in his cross examination stating that the claimants had not sustained any grievous injuries and that they are not suffering from any permanent disability and that he has issued false disability certificates in order to help them, he has denied all the suggestions. The disability certificate in respect of claimant Veeresh who is respondent No.1 in MFA No. 31801/2012 is marked as Ex.A-11 and disability certificate in respect of claimant respondent No.1 in MFA No. 31800/2012 is marked as Ex.A-6. They are suffering from partial permanent disability of 35% and 40% respectively as deposed by Dr. M. Rajesh. In fact the evidence of this witness was recorded through the Court commissioner at Bellary. 11. Learned counsel for the claimants relying on the decision of this Court in MFA No. 6197/2003 with connected appeals decided on 20th October 2010 submitted that competent doctor was examined in order to prove disability certificates in respect of the claimants and the same has been properly accepted by the Court below. In the above referred case this Court has observed in para No. 7 that; "The only question that arise in these appeals is as to whether the award is contrary to the Section 4 sub-section 1 Clause (C) sub clause (2) of the Workmen's Compensation Act. In case of disability suffered by the claimant during the course of his employment, the compensation awarded should be in proportionate to the disability in the earning capacity as assessed by the qualified medical practitioner as such disability is permanent." Therefore in order to prove the disability the qualified medical practitioner is examined by the claimants and as such it cannot be held that there is violation of section 4(1)(C) and 4(2) of Workmen's Compensation Act. 12. Respondent No.1 Maqthyar Ahmed has filed the written statement before the learned Commissioner for Workmen's Compensation wherein he has deposed in clear terms that the claimant No. 1 was working as a driver under him, claimant No.2 as cleaner and claimant Nos. 3 to 6 as hamals in his lorry involved in the case.
12. Respondent No.1 Maqthyar Ahmed has filed the written statement before the learned Commissioner for Workmen's Compensation wherein he has deposed in clear terms that the claimant No. 1 was working as a driver under him, claimant No.2 as cleaner and claimant Nos. 3 to 6 as hamals in his lorry involved in the case. Respondent No.2 has not produced any evidence except producing the copy of insurance policy. Further respondent No.1 has stated that the claimants sustained injuries in the accident in the course of their employment. When respondent No.1 has admitted these facts, respondent No.2 insurance company without producing any material before the Court below cannot contend that there was no jural relationship between the claimants and respondent No.1 as employees and employer. 13. Learned counsel for the insurer has further submitted that insurance policy issued is in respect of offending lorry was in force and that risk of only two persons is covered under the said policy. The policy is produced at Ex.P-1. It is described as "goods carrying (other than 3-WH) public carriers liability only policy." In the schedule of premium B:TP Basic Rs.6,090/- is shown, for third party damage of 6000 Rs.200/- is shown, IMT-20 WC to two employees Rs.50/- is collected as premium. It is admitted that the vehicle involved in the case is heavy goods vehicle. On this aspect learned counsel for the claimants has relied on the decision of this Court in MFA No. 31248/2013 with connected appeals decided on 22nd March 2016 wherein this Court has considered similar arguments. In that case learned counsel for the insurer contended that liability of the insurer was limited for 2+2 employees only. The vehicle involved therein was lorry. There were five claimants. This Court relying on the decision in the case of the Oriental Insurance Company Ltd., Raichur V/s Mastan and another and also on the judgment in the case of Divisional Manager United India Insurance Company Limited V/s Smt Sumitrabai and others held that where the vehicle involved was heavy goods vehicle and the insurer approached the Court on liability saddled on the insurance company under the Act 1+6 employees, his contention that his liability is only to satisfy 2+1 passengers claim was rejected.
It is further held that Rule 100 of the Rules in the context six employees namely hamals and driver who were carried in goods vehicle and the insurance company has disputed the liability, it has been categorically held that the insurance company is bound to indemnify the insured in view of the specific proviso to Rule 100 of the Rules. Under these circumstances the contention of the appellant Insurer that risk of only two persons is covered under the policy cannot be accepted. Admittedly the vehicle involved is heavy goods vehicle and therefore as per the above stated Rules risk of seven persons including the driver is covered under the policy. Under these circumstances I hold that the Insurance company has failed to make out any grounds to interfere with the impugned judgment and order and no substantial question of law is involved in these appeals. Admittedly the policy issued in respect of offending vehicle was in force as on the date of accident and further it is proved that the claimants were employees under Respondent No.1 and as such, no illegality is committed by the learned Commissioner for Workmen's Compensation, Raichur in awarding compensation to the claimants. Accordingly point No.1 is answered in the affirmative and point No.2 in the negative. Therefore, the appeals being devoid of merits are liable to be dismissed, accordingly they are dismissed. The amount of compensation deposited before this Court shall be transmitted to the concerned Tribunal.