Judgment:
(Prayer: This Appeal is filed under Section 30(1) of the Workmen’s Compensation Act, against the Judgment and Award dated 25/7/2007 passed in WCA/NF/SR-60/2006 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Hassan Sub-Division, Hassan, awarding compensation of Rs. 4,13,826/- with interest at 12% p.a.)
1. Second respondent in WCA/NF/SR-60/2006 on the file of Commissioner for Workmen’s Compensation. Hassan Sub-Division, Hassan, has come up in this appeal challenging the quantum of compensation awarded to claimant.
2. Brief facts leading to this appeal are as under:
The case of claimant before the commissioner is that he was working as Loader under first respondent in Lorry bearing No.KA-03/C-5319. On 18/2/2006 in the course of his employment under first respondent, he suffered injuries arising out of his employment resulting in amputation of left palm with all the five fingers. He filed Claim Petition before the Commissioner seeking compensation from his employer, and also insurer of the lorry, who are respectively 1st and 2nd respondents in the said proceedings. In the said proceedings he adduced evidence in support of his case as P.W.1 and produced eight documents as per Exs.P-1 to P-8. He also got examined one Dr. Ramakrishna Bhat, as P.W.2, who treated him in Hemavathi Hospital while he was inpatient in the said hospital.
3. The Commissioner on appreciation of pleadings, oral and documentary evidence available on record, proceeded to take the income of claimant at Rs.3,500/- per month and whole body disability at 100% by applying factor 197.06, awarded compensation in a sum of Rs.4,13,826/- payable with interest at 12% from the thirtieth date of order till the date of deposit of entire amount.
4. Second respondent – Insurance Company being aggrieved by the same, has come up in this appeal on the ground that the Commissioner had not appreciated the evidence available on record so far as the cover note issued by second respondent in respect of vehicle in question in this proceeding. It is his case that appellant has received premium in its Chennai Office on 17/02/2006 and issued a policy, to come into force prospectively for the period from 25/02/2006 to 24/02/2007. Thereafter the accident has taken place on 18/02/2006, as on that day, policy issued by appellant had not come into force, therefore there is no liability on the Insurance Company to pay the compensation awarded to claimant. It is also the case of appellant that in Schedule I and part 2 of the Workmen’s Compensation Act, item No.4 deals with the injuries resulting in amputation to the hand. If the amputation to the entire wrist takes place, disability will be at 60% as statutorily held. In the instant case, amputation is only to the extent upto palm. The findings of Commissioner that there is 100% disability to the claimant is contrary to the provisions of the Act.
5. This appeal was admitted to consider the substantial questions of law raised in the appeal memo. However, when this appeal was taken up for final arguments, on going through the grounds of appeal and the findings of the Commissioner in the Order impugned this court is find that the following substantial questions of law would arise for consideration in this proceeding:
1. Whether the Commissioner for Workmen’s Compensation was justified in holding that second respondent – Insurance Company is liable to pay compensation in respect of accident which has taken place on 18/02/2006, when the policy issued cover the period from 25/02/2006 to 24/02/2007?
2. Whether the Commissioner for Workmen’s Compensation was justified in holding that the claimant has suffered loss of earning capacity to the extent of 100% contrary to statutory limit prescribed in Schedule I Part 2 of the Act?
6. Heard the counsel for appellant and respondent No.1. Perused the pleadings, oral and documentary evidence available on record with reference to grounds of appeal and also the findings of the Commissioner in the impugned order. On re-appreciation of the same, this court answer the 1st substantial question of law in the affirmative and 2nd one in the negative, for the following:
REASONS
7. The relationship of claimant and first respondent before the Commissioner as employee and employer is not in dispute. Insurance of policy by second respondent in respect of vehicle bearing No.KA-03/C-5319 is not in dispute. It is further not in dispute that the claimant has suffered injuries to his left hand resulting in amputation upto palm, while discharging his duty as employee under first respondent. The dispute raised by the appellant is that the policy in question is issued by its Chennai office on 17/2/2006. The cover note of policy is issued prospectively for the period from 25/2/2006 to 24/2/2006. Therefore the insurer appellant is not obliged to indemnify liability arising out of the accident caused on 18/2/2006. Perusal of the policy copy discloses that on 17/2/2006, appellant herein has received premium amount from the second respondent and has issued a policy. Nodoubt, the date printed on the cover note of policy issued for the period from 25/2/2006 to 24/2/2007. Subsequently there appears to be some correction to the date to show that policy will come into force from 10/2/2006 to 9/2/2007. The case of appellant is that this correction is tampering of the said document. Admittedly this document is produced by insurer appellant herein before the Commissioner. In the said proceedings, ample opportunity was available to counsel appearing for Insurance Company to demonstrate that the document produced by the company did not have altered date. In the absence of taking such a plea before the Commissioner and participating in the said proceedings, without stepping into witness box to substantiate such an allegation at the first available moment and waiting for the said proceedings to conclude resulting in awarding compensation to claimant and thereafter taking such defence in the appeal is not permissible.
8. There is good deal of difference between the word tamper and correction. If any portion of the document is corrected by the author of the document, it is perfectly justifiable and the same amount to correction. However, if the said correction is done by somebody an unauthorised person including the insured in the instant case, it amounts to tampering of the document. Admittedly the document in question is office copy of cover note which is issued by the appellant herein in the proceeding before Commissioner for Workmen’s Compensation. If the correction found on the document was not there at the time of filing it in the said proceedings by appellant, the appropriate time to raise objection regarding unauthorized insertion or correction in the said document is at the stage when the proceedings before Commissioner is still pending. Appropriate time to say that this document is tampered, was available to counsel appearing for Insurance Company after production of said document before the Commissioner. Having not taken such defence at that time, having not adduced acceptable evidence at appropriate time to demonstrate the said correction is tampering of document, it is not open to the Insurance Company to raise the same in this appeal. Therefore this court find that there is no justification to accept the same.
9. Now coming to the second point urged by the counsel for appellant is that the policy cannot be issued retrospectively and it could only be issued prospectively. Therefore, the correction which is there on record to show that the policy has come into force on 10/2/2006 cannot be accepted. Therefore, the policy should be taken as if it has come into force on 25/2/2006, even though the premium is paid on 17/2/2006. Reading of section 64-VB of the Insurance Act, 1938, will clarify the same, which is as under:
“64-VB. No risk to be assumed unless premium is received in advance.
1. No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.
2. For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer.
Explanation: Where the premium is tendered by postal money order or cheque send by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be.
3. Any refund of premium which may become due to an insured on account of the cancellation of a policy or alteration in its terms and conditions or otherwise shall be paid by the insurer directly to the insured by a crossed or order cheque or by postal money order and a proper receipt shall be obtained by the insurer from the insured, and such refund shall in no case be credited to the account of the agent.
4. Where an Insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or dispatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty four hours of the collection excluding bank and postal holidays.
5. The Central Government may, by rules, relax the requirements of sub-section (1) in respect of particular categories in insurance policies.
6. The Authority may, from time to time specify, by the regulations made by it, the manner of receipt of premium by the insurer”.
10. On going through the same, it is clearly stated that the policy/cover note cannot be issued to cover the period prior to receiving premium. If the present case on hand is analyzed with respect to this provision of law. In the instant case, it is seen that the owner of lorry has paid premium on 17/2/2006 at Chennai, which is not in dispute. Admittedly, accident has taken place on 18/2/2006. Therefore, assuming that policy will not come into force from 10/2/2006, in the absence of acceptable proof that the said document is tampered, then this court is left with no other option to accept that the policy issued on 17/2/2006, has come into force from the midnight of the said date. In such an event, the liability to pay the compensation by the owner of lorry is indemnified as on 18/2/2006 by virtue of the cover note which is available on record. Therefore, the said contention of the Insurance Company cannot be accepted.
11. Now coming to the loss of earning capacity, which the Commissioner has taken for assessing the compensation payable. As rightly contended by counsel appearing for appellant the injury suffered by claimant is schedule injury. Part (2) of Schedule I, item No.4 deals with injuries to hand. Under item No.4 if the injuries to hand resulting in amputation to wrist, than the loss of earning capacity would be at 60% as statutorily provided. In the instant case, the claimant has suffered amputation only upto the palm and not upto wrist. Therefore the findings of the commissioner that the claimant has suffered loss of earning capacity upto 100% is without basis and not justifiable. Therefore, under the facts and circumstances of the case, this court hold that the loss of earning capacity suffered by the claimant can be taken at 50%. If the loss of earning capacity is taken at 50%, with his income at Rs.3,500/- and the factor being 197.06 claimant is entitled to revised compensation in a sum of Rs.2,06,913/- payable with interest at 12% from the thirtieth date of order till the date of deposit.
12. Accordingly, appeal filed by appellant – Insurance Company is allowed in part. Compensation payable is modified from Rs.4,13,826/- to Rs.2,06,913/- payable with interest at 12% p.a. from 30th day of order till date of deposit.
Registry is directed to send the amount in deposit to the Commissioner for Workmen’s Compensation, Hassan, for disbursing the same in favour of claimant and the Commissioner after disbursing the modified amount with interest to claimant, shall refund the balance amount to appellant herein.