National Insurance Co. Ltd. and Others Vs. D. Imamsab and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1177703
CourtKarnataka Dharwad High Court
Decided OnJul-23-2015
Case NumberM.F.A. Nos. 13271 & 13272 of 2007
JudgeB. MANOHAR
AppellantNational Insurance Co. Ltd. and Others
RespondentD. Imamsab and Others
Excerpt:
1. the appellant-national insurance company filed these appeals challenging the judgment and order dated 31.07.2007 passed in wca 317/2004 and 367/2007 by the labour officer and commissioner for workmen compensation, sub-division, bellary (hereinafter referred to as the wcc for short). 2. since the common order passed by the wcc is challenged in these appeals, both the appeals are clubbed together the disposed of by this common judgment. 3. the 1st respondent in these appeals are the claimants. the claimant in mfa no. 13271/2007 was working as a driver and claimant in mfa no. 13272/2007 was working as a loader in a lorry bearing registration no.ka-35-b-7863 belonging to the 2nd respondent in these appeals. the claimants filed the claim petition contending that, on 22.08.2004, on the instructions of the owner of the lorry, after unloading the mines, when they were proceeding towards hospet, due to the rash and negligent driving of the tata mobile vehicle bearing registration no. ka-02-n-2710, it was dashed against the lorry from the hind side. due to the impact, driver as well as the loader sustained grievous injuries. initially they have taken treatment in the primary health centre, torangal. thereafter, they have taken treatment in the private hospital. at the time of accident, the driver was aged about 25 years and loader was aged about 35 years. it was claimed that the driver was getting a salary of rs. 4,000/- pm and batta of rs. 50/- per day, whereas the loader was getting a salary of rs. 125/- per day. as the accident occurred during the course and out of employment, it was claimed that the claimants are entitled for the compensation. 4. the owner of the vehicle filed written statement contending that the claimants are working as driver and loader in the lorry belonging to him and he was paying a salary of rs. 4,000/- pm to the driver and rs. 100/- per day to the loader. since the accident occurred during the course and out of employment and the vehicle is fully covered by the insurance policy, the insurance company has to compensate the claimant and sought for dismissal of the claim petition as against the owner of the vehicle. 5. the respondent-insurance company filed the written statement denying the averments made in the claim petition and also contended that no material has been produced to show that there is a relationship of master and servant between the claimants and owner of the vehicle. no document has been produced to show that the driver was getting a salary of rs. 4,000/- pm and rs 50/- batta per day and the loader was getting a salary of rs.125/- per day. no materials were produced to show the permanent disability suffered by the claimants and sought for dismissal of the claim petition. 6. on the basis of the pleadings of the parties, wcc framed necessary issues. the claimants in order to prove their case examined themselves as pw1 and pw2. the doctor who was treated them was examined as pw3. on the basis of the oral and documentary evidence let in by the parties, the wcc held that, the accident occurred due to the rash and negligent riding of the tata mobile vehicle bearing no.ka-02-n-2710. it is also held that the accident occurred during the course and out of employment and hence, the claimants are entitled for compensation. 7. with regard to the quantum of compensation is concerned, the claimant in mfa 13271/2007 i.e., the driver sustained injury to the right hand, left leg and injury to the patella and fracture of collus. the doctor, who treated him assessed the functional disability to an extent of 35%. insofar as the claimant in mfa 13272/2007 i.e. the loader is concerned, in the accident he has sustained fracture of right wrist collus and fracture of calcamum of left ankle. in view of the mal union of collus bone, he cannot do the work of the loader and hence, assessed the functional disability to an extent of 35%. the wcc taking into consideration salary of the driver as rs. 4,000/- pm, disability to an extent of 35%, age as 25 years and applying the relevant factor of 216.91 awarded a compensation of rs. 1,82,204/-. insofar as the loader is concerned, the wcc taking into consideration the income of the loader as rs. 3,000/- pm, age as 35 years, disability to an extent of 30% and applying the relevant factor of 197.06, awarded a compensation of rs. 1,06,412/-. in both the case, the wcc has awarded the compensation with interest at 12% p.a. from the date of order till deposit. being aggrieved by the quantum of compensation awarded by the wcc, the insurance company filed these appeals. 8. sri. rajashekhar s. arani, learned counsel appearing for the appellant-insurance company contended that, the judgment and order passed by the wcc is contrary to law. in the accident, the driver as well as the loader sustained simple injuries. the assessment disability to an extent of 35% and 30% respectively in case of driver and loader is contrary to law and sought for modifying the judgment and order. 9. on the other hand, manjunath g. patil, the learned counsel appearing for the claimants in both the appeals argued in support of the judgment and order passed by the wcc and sought for dismissal of the appeals. 10. i have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and order, and oral and documentary evidence adduced by the parties. 11. the records clearly disclose that, the claimants are working as a driver and a loader of lorry bearing no. ka-35-b-7863 belonging to the 2nd respondent. the accident occurred due to the rash and negligent driving of vehicle bearing no.ka-02-n-2710. the wcc, taking into consideration the police records, spot mahazar, panchanama, came to the conclusion that, the claimants have sustained injuries in the road traffic accident during the course and out of employment and hence, they are entitled for the compensation. with regard to the quantum of compensation is concerned, in the accident, driver has sustained injury to the right hand, left leg and injury to the patella and fracture of collus. in view of the mal union of the collus, the driver finds it difficult to stand sand to work as a driver. accordingly, the doctor assessed the functional disability to an extent of 35%. insofar as the ilader is concerned, in the accident he has sustained fracture of right wrist collus and fracture of calcamum of left ankle. the x-ray shows that there is a malunion of collus bone and there is deformity. he finds it difficult to do day-to-day work and also loading work. the doctor taking into consideration injuries sustained by him, assessed the functional disability to an extent of 30%. i find there is no infirmity or irregularity in the assessment of disability. taking into consideration the nature of the work of the claimants and the injuries sustained in the accident, the assessment of the disability by the doctor is in accordance with law. 12. since the accident occurred in the year 2006, the wcc taking into consideration the salary of the driver as rs. 4,000/- pm and applying the applicable relevant factor, awarded a compensation of rs. 1,82,204/- to the driver and taking into consideration the income of rs. 3,000/- pm and applying the applicable relevant factor awarded a sum of rs. 1,06,412/- to the loader with interest at 12% p.a. from the date of the order, in both the cases. i do not find any infirmity or irregularity in the said judgment and order passed by wcc. the appellant has not made out a case to interfere with the same. 13. with regard to the interest awarded by the wcc, the same is contrary to law. the hon'ble supreme court in its judgment reported in the case of oriental insurance company ltd. v. siby george and others, 2012 (3) lln 510 (sc): 2012 (2) tn mac 395 (sc) : 2012 acj 2126 laid down a law that the claimant is entitled for the interest from one month after the accident. the interest awarded by the wcc at 12% p.a. from the date of order is contrary to law. the claimants are entitled for the interest as per the law laid down by the hon'ble supreme court referred to above. accordingly, i pass the following: order: both the appeals are dismissed. however, the claimants are entitled for the interest at the rate of 12% p.a. from one month after the accident. the amount in deposit be transferred to the wcc.
Judgment:

1. The Appellant-National Insurance Company filed these Appeals challenging the Judgment and Order dated 31.07.2007 passed in WCA 317/2004 and 367/2007 by the Labour Officer and Commissioner for Workmen Compensation, Sub-Division, Bellary (hereinafter referred to as the WCC for short).

2. Since the common order passed by the WCC is challenged in these Appeals, both the Appeals are clubbed together the disposed of by this common Judgment.

3. The 1st Respondent in these Appeals are the Claimants. The Claimant in MFA No. 13271/2007 was working as a Driver and Claimant in MFA No. 13272/2007 was working as a Loader in a Lorry bearing registration No.KA-35-B-7863 belonging to the 2nd Respondent in these Appeals. The Claimants filed the Claim petition contending that, on 22.08.2004, on the instructions of the Owner of the Lorry, after unloading the mines, when they were proceeding towards Hospet, due to the rash and negligent driving of the Tata Mobile vehicle bearing Registration No. KA-02-N-2710, it was dashed against the Lorry from the hind side. Due to the impact, driver as well as the loader sustained grievous injuries. Initially they have taken treatment in the Primary Health Centre, Torangal. Thereafter, they have taken treatment in the Private Hospital. At the time of accident, the driver was aged about 25 years and loader was aged about 35 years. It was claimed that the Driver was getting a salary of Rs. 4,000/- pm and batta of Rs. 50/- per day, whereas the Loader was getting a salary of Rs. 125/- per day. As the accident occurred during the course and out of employment, it was claimed that the Claimants are entitled for the Compensation.

4. The owner of the vehicle filed Written Statement contending that the Claimants are working as Driver and Loader in the Lorry belonging to him and he was paying a salary of Rs. 4,000/- pm to the driver and Rs. 100/- per day to the Loader. Since the accident occurred during the course and out of employment and the vehicle is fully covered by the Insurance Policy, the Insurance Company has to compensate the Claimant and sought for dismissal of the Claim Petition as against the Owner of the vehicle.

5. The Respondent-Insurance Company filed the Written Statement denying the averments made in the Claim Petition and also contended that no material has been produced to show that there is a relationship of master and Servant between the Claimants and owner of the vehicle. No document has been produced to show that the Driver was getting a salary of Rs. 4,000/- pm and Rs 50/- Batta per day and the Loader was getting a salary of Rs.125/- per day. No materials were produced to show the Permanent Disability suffered by the Claimants and sought for dismissal of the Claim Petition.

6. On the basis of the pleadings of the parties, WCC framed necessary issues. The Claimants in order to prove their case examined themselves as PW1 and PW2. The doctor who was treated them was examined as PW3. On the basis of the oral and documentary evidence let in by the parties, the WCC held that, the accident occurred due to the rash and negligent riding of the Tata Mobile vehicle bearing No.KA-02-N-2710. It is also held that the accident occurred during the course and out of employment and hence, the Claimants are entitled for Compensation.

7. With regard to the quantum of Compensation is concerned, the Claimant in MFA 13271/2007 i.e., the Driver sustained injury to the right hand, left leg and injury to the patella and fracture of collus. The Doctor, who treated him assessed the Functional Disability to an extent of 35%. Insofar as the Claimant in MFA 13272/2007 i.e. the Loader is concerned, in the accident he has sustained fracture of right wrist collus and fracture of calcamum of left ankle. In view of the mal union of collus bone, he cannot do the work of the Loader and hence, assessed the Functional Disability to an extent of 35%. The WCC taking into consideration salary of the Driver as Rs. 4,000/- pm, disability to an extent of 35%, age as 25 years and applying the relevant factor of 216.91 awarded a Compensation of Rs. 1,82,204/-. Insofar as the loader is concerned, the WCC taking into consideration the income of the loader as Rs. 3,000/- pm, age as 35 years, disability to an extent of 30% and applying the relevant factor of 197.06, awarded a Compensation of Rs. 1,06,412/-. In both the case, the WCC has awarded the Compensation with interest at 12% p.a. from the date of order till deposit. Being aggrieved by the quantum of Compensation awarded by the WCC, the Insurance Company filed these Appeals.

8. Sri. Rajashekhar S. Arani, learned Counsel appearing for the Appellant-Insurance Company contended that, the Judgment and Order passed by the WCC is contrary to law. In the accident, the Driver as well as the Loader sustained simple injuries. The assessment disability to an extent of 35% and 30% respectively in case of Driver and Loader is contrary to law and sought for modifying the Judgment and Order.

9. On the other hand, Manjunath G. Patil, the learned Counsel appearing for the Claimants in both the Appeals argued in support of the Judgment and order passed by the WCC and sought for dismissal of the Appeals.

10. I have carefully considered the arguments addressed by the learned Counsel for the parties and perused the Judgment and Order, and oral and documentary evidence adduced by the parties.

11. The records clearly disclose that, the Claimants are working as a Driver and a Loader of Lorry bearing No. KA-35-B-7863 belonging to the 2nd Respondent. The accident occurred due to the rash and negligent driving of vehicle bearing No.KA-02-N-2710. The WCC, taking into consideration the Police records, Spot Mahazar, Panchanama, came to the conclusion that, the Claimants have sustained injuries in the Road Traffic accident during the course and out of employment and hence, they are entitled for the Compensation. With regard to the quantum of Compensation is concerned, in the accident, Driver has sustained injury to the right hand, left leg and injury to the patella and fracture of collus. In view of the mal union of the collus, the driver finds it difficult to stand sand to work as a Driver. Accordingly, the Doctor assessed the functional disability to an extent of 35%. Insofar as the ILader is concerned, in the accident he has sustained fracture of right wrist collus and fracture of calcamum of left ankle. The X-ray shows that there is a malunion of collus bone and there is deformity. He finds it difficult to do day-to-day work and also loading work. The Doctor taking into consideration injuries sustained by him, assessed the Functional Disability to an extent of 30%. I find there is no infirmity or irregularity in the assessment of disability. Taking into consideration the nature of the work of the Claimants and the injuries sustained in the accident, the assessment of the disability by the Doctor is in accordance with law.

12. Since the accident occurred in the year 2006, the WCC taking into consideration the salary of the Driver as Rs. 4,000/- pm and applying the applicable relevant Factor, awarded a Compensation of Rs. 1,82,204/- to the Driver and taking into consideration the income of Rs. 3,000/- pm and applying the applicable relevant Factor awarded a sum of Rs. 1,06,412/- to the Loader with interest at 12% p.a. from the date of the order, in both the cases. I do not find any infirmity or irregularity in the said Judgment and Order passed by WCC. The Appellant has not made out a case to interfere with the same.

13. With regard to the interest awarded by the WCC, the same is contrary to law. The Hon'ble Supreme Court in its Judgment reported in the case of Oriental Insurance Company Ltd. v. Siby George and Others, 2012 (3) LLN 510 (SC): 2012 (2) TN MAC 395 (SC) : 2012 ACJ 2126 laid down a law that the Claimant is entitled for the interest from one month after the accident. The interest awarded by the WCC at 12% p.a. from the date of order is contrary to law. The Claimants are entitled for the interest as per the law laid down by the Hon'ble Supreme Court referred to above. Accordingly, I pass the following:

ORDER:

Both the Appeals are dismissed.

However, the Claimants are entitled for the interest at the rate of 12% p.a. from one month after the accident.

The amount in deposit be transferred to the WCC.