1. Both the claimant/petitioner and the Insurance Company/2nd respondent, have filed these appeals, questioning an order/award passed by the Commissioner for Workmen's Compensation ('CWC for short), allowing the claim petition in part and directing the 2nd respondent/Insurance Company to pay the compensation amount to the workman.
2. MFA 10497/2007 is by the petitioner and MFA 10997/2007 is by the Insurance Company. For convenience, the parties would be referred with reference to their rank in the claim petition filed before the CWC.
3. T.M.Ganeshan/ 1st respondent, was the owner of a bus bearing registration No.KA-16/4546 The petitioner was employed by the 1st respondent to work as a driver in the said bus. On 3.4.2005, when the petitioner was driving the vehicle, an accident occurred and he sustained injury, which arose out of and during the course of employment. After obtaining the treatment and finding permanent disability and loss of earning capacity, a claim petition was filed on 13.7.2005 under S.22 of the Workmen's Compensation Act, 1923 ('the Act' for short) against the employer/owner and insurer of the offending vehicie to pay compensation. KSRTC was impleaded as additional respondent pursuant to an order dated 22 8.2006 passed by the CWC. The 1st respondent/owner of the offending vehicle despite service of notice of the claim petition, did not appear and participate in the proceedings before the CWC. The 2nd respondent/Insurance Company filed statement of objections, wherein, it admitted the issuance of the insurance policy to the vehicle in question for the period from 27.9.2004 to 26.9.2005. It was contended that, the vehicle having been leased to the KSRTC, though respondent 1 was the owner/insured, had no control over the running, plying, operation and maintenance of the vehicle and therefore the claimant was not employed by the petitioner and heme, the claim petition was not maintainable it denied the jural relationship, the quantum of wages of the workman, nature of injury sustained and the loss of earning capacity and also its liability to pay the compensation. KSRTC which was impleaded as respondents 3 and 4 filed its statement of objections on 6.12.2006 and contended that, it has no liability to pay the compensation and the claim petition filed against it is not maintainable. It was submitted that, the Corporation in order to provide transport and conveyance facilities to the travelling public, hired buses from willing bus owners to run the same on the routes held by it and in that regard, the Corporation hired the vehicle in question belonging to respondent 1. It was contended that, the liability for the injury sustained and the resultant loss of earning capacity of the petitioner is that of the owner and insurer of the vehicle in question i.e., respondents 1 and 2 and that the KSRTC is not at all liable for paying any compensation.
4. Based on the pleadings of the parties, 5 issues were raised. Petitioner got examined himself as AW.l and examined a qualified medical partitioned as AW.2. Exs.Al to Alt were marked. For the Insurance Company, its authorised representative deposed as RW.l, through whom Ex.R2(i) was marked. Considering the rival contentions and upon appreciation of evidence, CWC alioweo the claim petition, interalia holding that, the vehicle in question belonged to the 1st respondent, who had employed the petitioner as a driver to drive the vehicle, which met with an accident on 3.4.2005 resulting in injury being sustained by the workman arising out of and during the course of employment and there being partial permanent disability, reckoning the wages at 4,000/- p.m, the loss of earning capacity was determined at 45% of wages and compensation of 2,30,655/- was ordered to be paid within 30 days of the award and in case of default, to pay interest at 12% p.a.
5. Sri B.M.Siddappa, learned counsel for the petitioner firstly contended that, the CWC has erred in assessing the partial permanent disability and loss of earning capacity at 45% without taking into consideration the injury sustained and the nature of avocation of the claimant. According to the learned counsel, keeping in view the avocation of the claimant, it is a case of total disability and not partial disability and hence, the compensation determined being arbitrary and illegal, interference in the matter is called for. Secondly, the CWC is not justified in not allowing interest on the compensation amount after 30 days from the date of ^occurrence of the accident. 6. Sri A.N.Krishna Swamy, learned counsel appearing for the 2nd respondent/Insurance Company on the other hand firstly contended that, the assessment of loss of earning capacity at 45% is without lawful basis and is excessive. Secondly, the insured vehicle having Deen given on hire basis to the Corporation and the accident having occurred when the vehicle was plying on the route as per the permit granted in favour of KSPTC, the saddling of liability on the Insurance Company to pay compensation is illegal, in view of the decision in the case of RAJASTHAN STATE ROAD TRANSPORT CORPORATION VS. KAILASHA NATH KOTHARI AND OTHERS (AIR 1997 SC 3444). Learned counsel contended that, the CWC has failed to notice the clear violation of terms and conditions of the policy-by the insured and hence, saddling of liability on the insurer in respect of the vehicle which had been entrusted on lease basis to KSRTC is unjustified.
7. Sri B.L.Sanjeev, learned counsel appearing for the KSRTC contended that, the vehicle belonged to the 1st respondent and the petitioner was employed by the 1st respondent to drive his vehicle and the bus was plying under the contract of Corporation driven by the driver employed by the owner of the vehicle and in the circumstances, the CWC is justified in dismissing the claim petition filed against the KSRTC. Learned counsel placed reliance on the judgments dated 25.7.2011 in C.A.5901/2011 (UPSRTC VS. KULSUM AND OTHERS) and MFA Nos.6286/2009 C/w. 7358/2009 decided on 22.6.2011.
8. Keeping in view the rival contentions, I have perused the record of the case. The substantial questions of law which arise for determination are:
1. Whether the CWC is justified in assessing the loss of earning capacity at 45% ?
2. Whether the CWC is justified in not awarding interest on the compensation amount after 30 days of the occurrence of accident/the date from which the cause of action for the claim arose?
3. Whether CWC is justified in fastening the liability to pay compensation amount on the Insurance Company instead of KSRTC?
Re-question No. 1
9. The facts which are well established from the record are:
The petitioner was a driver in the bus, which belonged to the 1st respondent and was insured by the 2nd respondent. On 5.4.2005, an accident occurred and the petitioner sustained injury, which arose out of and during the course of employment. As on the date of the accident, the vehicle had been given on hire basis by the 1st respondent to the KSRTC. The driver having been em-ployed by the owner of the vehicle was driving the vehicle on the route to which the Corporation had the permit. Occurrence of the accident is established from Exs Al to A4. Ex.A5 is the wound certificate of the petitioner and he took treatment at Basaveshwara Hospital and Research Centre Pvt. Ltd. Ex.A6 .is the discharge, summary. AW.2 examined the claimant and found that, there was fracture of left tibia and fibula, which are mal united. He assessed the disability to the limb at 55% and loss of earning capacity at 55%.
10, Petitioner was admitted for treatment at Basaveshwara Hospital and Research Centre Pvt. Ltd., Chitradurga on 03.04 2005. He was discharged on 14.04.2005. The discharge summary Is Ex.P-6. Ex.P-7 is the disability certificate issued by PW-2, Dr.Venkatasiva Reddy. On examination, he has found the petitioner to be limping and not allow to stand on left leg, as well difficulty in sitting cross-legged. He has opined that, the disability to the limb being 55%, there is loss of earning capacity at 55%. Injury suffered is not one mentioned in Schedule-I of the Act which are deemed to result in permanent total disablement and hence, the disability has to be determined with reference to the work which the petitioner can perform. Even if it is taken that the injury has incapacitated the petitioner from doing the work which he was doing before the accident, still he being capable of performing "other work", it cannot be said that, there is total disablement and that, the CWC has erred In the matter of assessing the percentage of disability and the consequential loss of earning capacity. The photograph of the claimant is at Ex.P-11. The petitioner, except for the injury sustained to the left leg i.e., fracture of tibia and fibula, appears to be normal and is capable of performing "all other works" and earn wages.
11. Determination of the loss of earning capacity has to be with reference to "oil the work" which the workman was capable of performing at the time of the accident resulting in such disablement and not with reference to the work which the workman was performing at the time of the accident. The workman has not established of acceptable evidence, that after the injury, he is not able to do any other work on account of injury sustained in the accident. The CWC by merely noticing the affidavit evidence of PW-2 and without taking into consideration the facts elicited in the cross-examination, has held that, there is loss of earning capacity at 45% In the circumstances, the loss of earning capacity can he 33% and not 45%. As a result, the compensation payable stands determined at ?1,69,147.40 (2400/- x 213.57 x 33/100).
Re-question No.2:
12. The obligation to pay the compensation to the injured workman arose with the occurrence of the accident and the injury sustained. The compensation ought to have been paid/deposited within 30 days of occurrence of the accident. The compensation having not been either paid to the workman or deposited, the CWC ought to have exercised the power under S.4-A(3) of the Act and directed payment of interest on the compensation amount with effect from the date of expiry of 30 days period from the date of occurrence of the accident. In ILR 2009 KAR 1422, it has been held as follows:
"8. Keeping in mind the ratio of law laid down in the ease referred to supra, it is just and necessary/ to state that the larger Bench decision in the case of PRATAP NARAIN SINGH DEO (SUPRA) appears (o have not been brought to the notice of the Hon'ble Supreme Couit. when the decision in the case of NATION AI INSURANCE COMPANY LTD. vs MUBASIR AHMED AND KAMALA CIIATURVEDI'S CASE (SUPRA) were delivered. The said two decisions are by Benches of two Hon'ble Judges of the Apex Court, whereas, the ratio of law laid down in the case of Piatap Narain Singh Deo's case, which has been followed in the subsequent eases, was rendered by a quorum of more than two Hon'ble Judges. Under Article-141 of the Constitution of India, the Judgment of the Hon'ble Supreme Court is binding on all the Courts in the country. However, in the event if there is conflict on the question of law in two decisions, while considering the question of law on the point and interpretation of statute, this Court is required to follow the course of action as has been laid down by the larger Full Bench of this Court in the case of Govindanaik G Kalaghatigi (supra).
9. In view of the ratio of law laid down by the Apex Court in the case of PRATAL NARAIN SINGH DEO'S (SUPRA), which is the binding precedent in regard to the expression "fell due" appearing in Section-4-A(l) and (3) of the Act, following and applying the said ratio to the facts of the present case, it has to be held that the amount of compensation becomes due on expiry of one month from the date of accident and if the same is not paid or deposited, interest becomes payable alter the expiry of one month period from the date of the workmen sustaining injuries cine to an accident in the course of his employment and not after 30 days from the date of order/award passed by the Commissioner. The learned Commissioner has erred in not applying the law. as enunciated in the case of Pratap Narain Singh Deo (supra) and in not awarding the interest after expiry of 30 days from the date of the accident. Hence, the contentions of the learned Counsel for respondent are unacceptable. Substantial question of law stands answered accordingly."
Following the ratio or" the said decision, the petitioner is entitled to be paid interest on the compensation amount decermineo at 12% p.a w.e.f 03.05.2005 till the date of actual deposit.
In the circumstances, the CWC is not justified in not awarding interest on the compensation amount after expiry of 30 days period from the date of occurrence of accident and the injury sustained.
Re-question No.3:
13. Indisputedly, by entering into an Agreement with KSRTC, the vehicle which belonged to the 1st respondent, driven by his driver i.e., the petitioner, was given on hire basis to the KSRTC for operating the same on a route as per the permit granted in favour of the Corporation. The vehicle in question at the time of the accident was under the control of the corporation, however being driven by an employee of the owner of the vehicle. Indisputedly, the 1st respondent had agreed with the corporation that, the vehicle would be insured and driver would be provided by him. Thus, the vehicle was given on hire by the 1" respondent together with its running insurance policy, which was in force as on the date the accident occurred. Indisputedly, the petitioner possessed a valid and effective driving licence to drive the vehicle in question.
14. In KULSUM & OTHERS (supra) the material facts were, one Ajai Vishen, the owner of mini bus, entered into an Agreement of Contract with Uttar Pradesh State Road Transport Corporation for allowing the Corporation to ply the mini bus, as per the permit issued in favour of the-Corporation by the Road Transport Office (RTO). The Corporation had been vested with right to take the private vehicles on hire as per the contract and to ply the same on the routes as per the permit granted. According to the terms and conditions of the Agreement, the mini bus was to be plied by the Corporation on the routes as per the permit issued by RTO in its favour. Except for the services of the driver, which were to be provided by the owner, all other rights of owner were to be exercised by the Corporation only. The driver of the bus caused an accident and one Vijay Pa! Singh and others sustained fatal injuries.
Legal representatives of the deceased filed claim petitions for awarding of compensation before the MACT. The claim petitions were allowed and by relying upon the decision in the case of RAJASTHAN STATE ROAD TRANSPORT CORPORATION VS. KAILASH NATH KOTHARI & OTHERS, reported in (1997) 7 SCC 481, the liability of payment of compensation was fastened on the Corporation as, at the time of accident, the offending vehicle i.e., the mini bus was being run by the Corporation under the contract. The Corporation questioned the award by filino an appeal. The owner of the bus filed cross-objection against the finding on issue No.4 recorded by the Tribunal that, the insurance company was not liable to make payment and it fastened the liability on the owner also on account of alleged breach of insurance policy. Vehicle had the insurance and the insurance company was exonerated from payment of any compensation. The appeals filed having been dismissed, the Corporation questioned the award/judgment before the Hon'ble Supreme Court,, wherein, the question formulated for consideration was:
If insured vehicle (in this case a mini bus) is plying under an Agreement of Contract with the Corporation, on the route as per permit granted in favour of the Corporation, in case of an accident, whether the Insurance Company would be liable to pay compensation or would it be the responsibility of the Corporation or the owner?
While allowing the appeal, it was held that, the liability of the insurance company is exclusive and absolute.
In view of the clear enunciation of law by the Apex-Court, the fastening of liability in the instant case by the CWC on the insurance company to pay the compensation amount to the petitioner cannot be termed as either erroneous or illegal.
In the result, both the appeals are allowed in part and in modification of the impugned judgment and award, the petitioner is held entitled to compensation of n,69,147.40 with interest at 12% w.e.f 03.05.2005 till the date of actual deposit.
Gut of the amount deposited by the insurance company in MFA 10997/2007, the compensation amount with interest as above, be sent to the CWC and the balance amount if any, be refunded to the insurance company.
In the circumstances of the case, the parties are directed to bar their respective cost.