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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.731 OF 2012
The Oriental Insurance Co. Ltd.,
Through its Regional Manager,
Regional Office, New Colony,
Nagpur. .......... APPELLANT
// VERSUS //
1. Shaikh Rahim s/o. Shaikh Yusuf,
Aged about 26 years, Occ.Business,
r/o. Atim Nagar, Near Nagpuri
Gate, Amravati, Distt. Amravati.
2. Shailesh Suwarna,
Aged major, Occ. Truck owner,
r/o. R.T.Kanchan Vinayshree
Pavanji Haleyangady, Mangalore
(Kerala State). .......... RESPONDENTS
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Mr.A.R.Kaplay, Adv. h/f. Mr.A.M.Quazi, Adv. for the
appellant.
Mr.Sanket Charpe, Adv. for respondent no.1.
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Date of reserving the Judgment : 2.7.2015.
Date of pronouncing the Judgment : 6.8.2015.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. Heard Mr.A.R.Kaplay, learned Counsel holding for Mr.A.M.Quazi, learned Counsel for the appellant and Mr.Sanket Charpe, learned Counsel for respondent no.1.
2. This appeal questions validity and legality of the Judgment and Order dt.22-02-2011 passed in Application (WCA) No.6 of 2007 passed by the Commissioner under Workmen's (Employees) Compensation Act, Amravati and the order dt.22-09-2009 on Exh. 2 (No fault liability).
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3. The brief facts are that respondent Sheikh Rahim s/o.
Sheikh Yusuf - a Coolie, who was travelling on a truck, met with an accident. He filed the proceedings under the Workmen Compensation Act, 1923 for the accident that occurred with alleged 40% disability and injuries allegedly suffered while working as a Coolie. The claimant was engaged as a Loader by the owner of the truck. According to the appellant, he was travelling on the top of the truck bearing registration no. KA-19-AB-2106. The Loader/ Coolie had, after the accident occurred, underwent the medical treatment (Exh.27 is Discharge Card). The appellant/Insurer defended the claim on the ground that there was breach of policy on the part of the truck owner.
No valid and effective motor driving licence was produced.
Hence, the insurer was not liable to pay compensation.
4. Employer and employee relationship between the employer/owner of the truck and employee-Coolie/Loader is not in dispute. Owner and driver had failed to appear in the claim proceedings. The appellant contended that the ::: Downloaded on - 06/08/2015 23:57:49 ::: 4 fa731.12.odt accident was not in the course of and arising from the employment.
5. It is argued on behalf of the appellant that it is not liable to compensate the employee of the owner of the truck as there is no provision like 'pay and recover' as in the Motor Vehicle Act. The case of National Insurance Co. Ltd. vs. Swaran Singh and Others reported in (2004) 3 SCC 297 :
2004(1) ACJ 1 is not applicable to the Workmen's (Employees) Compensation Act in the facts and circumstances of the case.
6. On behalf of the respondent/claimant, it is submitted that the there is no substantial question of law to be framed in this case. If permanent disability was suffered for three days or more, then the claimant was entitled to claim the compensation. It is contended that the principle of 'pay and recover' holds the field in such a case. There was no cross-
examination on age and income of the claimant; hence, there is unrebutted and unchallenged evidence. It is argued that the ::: Downloaded on - 06/08/2015 23:57:49 ::: 5 fa731.12.odt ruling in Swaran Singh's case (supra) (three Judges Bench) is attracted. It is further argued that there was no any fundamental breach of the insurance policy.
7. Looking into the evidence and record and proceedings, it does appear in this case that labourer status of the accident victim and that he was earning monthly Rs.4,000/- as stated in evidence is not in dispute. If the labourer is unable to work pursuant to the incident of accident, then although the doctor may have certified less percentage of disability, the same may be considered as suffered to the extent of 100% disability if post-accident the employee is unable to work as a Loader-
Coolie in the Truck.
8. The Employees (Workmen's) Compensation Act aims to :
1) Provide workmen and/or their dependents some relief or to consider compensation payable by an employer to his workmen in case of accidents arising out of and in the course of employment and causing either death or disablement of workmen as a measure of relief and social security.::: Downloaded on - 06/08/2015 23:57:49 :::
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2) Provide for payment by certain classes of employers to their workmen compensation for injury by accident.
3) To enable a workmen to get compensation irrespective of his negligence.
4) It lays down the various amounts payable in case of an accident, depending upon the type and extent of injury. The employer now knows the amount of compensation he has to pay and is saved of many uncertainties to which he was subject before the Act came into force.
7. In the ruling in the case of National Insurance Co. Ltd.
vs. Rama and Others reported in 2007 ACJ 1105, in para no.24, it is observed as under :
" Technically speaking the appellant may be right in debating that the certificate of the disablement given by Dr. Jadhav refers to 25 % disablement however does not specify loss of earning capacity. In this situation, it may have become necessary to refer the claimant for assessment of loss of earning capacity had the court been left to rely upon the certificate. In the present case, however, the claimant has himself examined said qualified medical practitioner who had brought with him the X-ray plates and other documents. He has proved in cross-examination the ::: Downloaded on - 06/08/2015 23:57:49 ::: 7 fa731.12.odt fact that he was rendered incapable to undertake the job of loading/unloading permanently in future. "
8. Total Disablement [Section 2 (1) (l)] : It means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. It refers to that condition where a workman becomes unfit for every type of work and is not able to get job anywhere due to that disablement. Total disablement is deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in Part II against those injuries, amounts to 100 per cent or more. Where an employee becomes unfit for a particular class of job but is fit for another class which is offered to him by the employer, the workman is entitled to claim compensation only on the basis of partial disablement and not total disablement Compensation for Permanent Total Disablement: Where ::: Downloaded on - 06/08/2015 23:57:49 ::: 8 fa731.12.odt permanent total disablement results from an injury, the amount of compensation payable shall be equal to 60 percent of the monthly wages of the injured workman multiplied by the relevant factor or Rs.1,40,000/-, whichever is more as stated in Schedule IV read with Section 4(b) of the Employees' Compensation Act, 1923. The formula for calculating the amount of compensation in case of permanent total disablement resulting from an injury will be as follows :
Rs.1,40,000/- or 60 % of monthly wages i.e. 60 % of Rs.4000/- x relevant factor, whichever is more.
i.e. Rs.2,400/- x 215.28 = Rs.5,16,672/-
(As per Schedule IV, for a person 26 years of age, factor mentioned is 215.28)
9. Thus, if we consider the above formulae, then monthly income of the employee as per the evidence is Rs.4000, 60% of which comes to Rs.2,400 x 215.28 (relevant factor as per Schedule IV, the victim being 26 years of age) = ::: Downloaded on - 06/08/2015 23:57:49 ::: 9 fa731.12.odt Rs.5,16,672/-, which would be appropriate compensation.
Hence, the same must be paid with interest at the rate of 12% per annum from the date of the claim application till realisation by the employer-owner of the truck who had engaged victim Sheikh Rahim as a Loader. The appellant/ insurer is not liable to compensate the Loader in the facts and circumstances of this case. Hence, the impugned Judgment and Order is set aside. The appeal is partly allowed accordingly. Respondent no.2-owner of the offending motor vehicle/truck is liable to pay the amount of compensation to his workman (employee) accordingly. The appeal is allowed and disposed of accordingly. No order as to costs.
JUDGE jaiswal ::: Downloaded on - 06/08/2015 23:57:49 :::