Telangana High Court
The New India Assurance Co Ltd vs Mengani Sadanandam And Anr on 20 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.266 of 2014
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against order dated 05.01.2006 in W.C.No.24 of 2004 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Warangal-I, (hereinafter referred to as 'the Commissioner'). The said claim application was filed by the applicant therein seeking compensation for injuries sustained by him in an accident that occurred on 24.01.2004 and the same was partly allowed by the Commissioner awarding compensation of Rs.1,94,472/-. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed at the instance of opposite party No.2 before the Commissioner i.e., the insurance company.
2. The appellant herein is opposite party No.2, respondent No.1 herein is applicant and respondent No.2 herein is opposite party No.1 before the Commissioner. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
3. The brief facts of the case of the applicant are that he was working as labourer on Bajaj Tempo Minidor Auto Trolley bearing 2 MGP,J CMA_266_2014 No. AP 36 U 7541 under the employment of opposite party No.1. On 24.01.2004, during the evening hours, the applicant and driver of the said vehicle loaded coconut bags at Bhavani Traders, Old Beet Bazar, Warangal and started to Jangaon to unload the same at Natarajeswara Kirana Merchant, Jangaon. While so, when the said vehicle reached near Raghunathpally Sub-station on Warangal-Hyderabad Road, the driver of the said vehicle drove the vehicle in high speed in rash and negligent manner and lost control over the same. Due to which, the vehicle turned turtle and the applicant fell down under the trolley cabin and his two legs were crushed under it. The applicant sustained grievous fracture on medial upper 1/3 of right leg, grievous fracture in middle 1/3 of right leg (both bones of right leg), grievous fracture on medial side of left food and deformity left ankle (bymallabur deformity left ankle), Grade-III compound fracture of both bones, dislocation of right hip and other injuries all over the body. Immediately, the applicant was shifted to M.G.M. Hospital, Warangal, for treatment. With regard to the accident, a case was registered in Crime No.4 of 2004 on the file of the Police Station Raghunathpally under Section 338 of the Indian Penal Code, 1860.
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4. It is further the case of the applicant that he was aged about 32 years as on the date of the accident and that he was being paid an amount of Rs.3,000/- per month towards wages apart from daily batha. Further, the accident occurred during the course and out of his employment under opposite party No.1. The vehicle involved in the accident was owned by opposite party No.1 and insured with opposite party No.2. Hence, the present claim application is filed seeking compensation of Rs.2,93,544/-.
5. Opposite party No.1 filed his counter and admitted the employment of applicant under him. He also admitted that he was owner of the vehicle involved in the accident and stated that the said vehicle was insured with opposite party No.2 under valid and effective policy as on the date of the accident. He stated that the applicant was being paid an amount of Rs.2,500/- per month towards wages and not Rs.3,000/- as claimed by the applicant. He also contended that as the vehicle involved in the accident was insured with opposite party No.2, as such, if there is any liability opposite party No.2 alone is liable to pay. Therefore, prayed to dismiss case against him.
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6. Opposite party No.2 filed its counter denying the averments of the claim application such as age, wages, employment of the applicant under opposite party No.1, occurrence of the accident and also injuries sustained by the applicant. It is also contended that the driver of the vehicle involved in the accident was not having valid driving license as on the date of the accident. Opposite party No.2 prayed to dismiss the claim application as the compensation claimed by the applicant is excess and exorbitant.
7. In support of his case, the applicant got examined himself as P.W.1 and got examined P.W.2 and got marked Exs.A-1 to A-10. Opposite party No.2 got examined R.W.1 and Ex.B-1 was got marked.
8. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
"1. Whether the injured Mengani Sadanandam is workman under W.C. Act?
2. What was the age of the injured at the time of accident?
3. What was the wage paid to the injured at the time of the accident?
4. How much compensation payable?
5. Who is liable to pay compensation?"5
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9. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.1,94,472/- towards compensation to the applicant. Aggrieved by the same, the present appeal is filed by opposite party No.2.
10. Heard, the learned standing counsel for the appellant- insurance company and also the learned counsel for respondent No.1
11. The main contention of the learned counsel for the appellant/opposite party No.2 is that there was no employee and employer relationship between the applicant and opposite party No.1, without considering the said aspect, the Commissioner has awarded compensation. It is also contended that no premium was paid by opposite party No.1 to cover the risk of labourer under the policy. It is further contended that the Commissioner erred in considering the loss of earning capacity of the applicant at 60%, as the same is on higher side. Hence, prayed to allow the appeal and set aside the impugned order passed by the Commissioner.
12. Per contra, the learned counsel for respondent No.1/applicant contended that the Commissioner after 6 MGP,J CMA_266_2014 considering all the aspects has awarded reasonable compensation and interference of this Court is unnecessary. Hence, prayed to dismiss the appeal.
13. Now, the point for determination is as follows:
"Whether the applicant is entitled for the compensation as granted by the Commissioner?"
Point:-
14. This Court has perused the entire evidence and documents placed on record by both the parties. The applicant got examined himself as P.W.1 reiterating the contents of the claim application such as manner of the accident and also injures sustained by him. Though, P.W.1 was cross-examined, nothing contrary was elicited in the same. In order to prove injuries sustained by the applicant, he got examined P.W.2, who is Assistant Civil Surgeon in M.G.M. Hospital, Warangal. P.W.2 deposed that on 16.09.2004, the applicant came to M.G.M. Hospital, for issuance of disability certificate from Regional Medical Board Warangal and after examining the applicant, he found three inches shafts of right lower limb and wasting of calf muscle with stiffness of right ankle, right hip and ankle. He determined the disability at 80% 7 MGP,J CMA_266_2014 and issued certificate under Ex.A-9. He also deposed that the disability is permanent in nature and there is no scope for improvement and that the applicant cannot attend hard work in future. Though, he was cross-examined, nothing contrary was elicited.
15. Opposite party No.2 got examined its employee as R.W.1. R.W.1 reiterated the contents of the written statement. The evidence of R.W.1 shows that opposite party No.1 got insured the vehicle involved in the accident with them and the policy was valid and effective as on the date of accident. He stated that no additional premium was paid to cover the risk of labourer by opposite party No.1. In the cross-examination, he denied the suggestion that opposite party No.2 is liable to pay compensation to the labour.
16. Apart from the evidence of the P.W.2, the applicant also placed reliance on Exs.A-1 to A-12. A perusal of Ex.A-1 shows that the Police Raghunathpally have registered case in Crime No.4 of 2004 and took up investigation and laid charge sheet under Ex.A-4. Ex.A-2 is copy of the wound certificate, Ex.A-3 is copy of radiologist report, Ex.A-5 is copy of registration certificate, Ex.A-6 8 MGP,J CMA_266_2014 copy of driving license, Ex.A-7 copy of insurance policy, Ex.A-8 is original discharge card, Ex.A-9 is original disability certificate and Ex.A-10 is copy of photo of the applicant. All these documents clearly disclose the treatment underwent by the applicant, involvement of the vehicle owned by opposite party No.1 and also that the said vehicle was insured with opposite party No.2. In the said circumstances, there is no dispute with regard to occurrence of the accident, injuries sustained by the applicant and employee and employer relationship between the applicant and opposite party No.1. Hence, the contention of the learned counsel for the appellant/opposite party No.2 that there was no employee and employer relationship between the applicant and opposite party No.1 is unsustainable.
17. It is also pertinent to state that the insurance policy under Ex.A-7/B-1 was in force as on the date of the accident. However, the main dispute raised by the learned counsel for the appellant/opposite party No.2 is that there is no additional premium paid to cover the risk of applicant, who is labourer. In this regard, it is apt to refer to the decision of the Hon'ble Apex 9 MGP,J CMA_266_2014 Court in the case of Oriental Insurance Company Limited v. Meena Variyal 1, wherein it was held as under:
"Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods."
18. Admittedly, the vehicle involved in the accident is a goods carrying vehicle. In view of the above discussion and considering the principle laid down in the above said decision and since the 1 (2007) 5 SCC 428 10 MGP,J CMA_266_2014 applicant was not a gratuitous passenger and as he was an employee rendering his services to opposite party No.1 under employee and employer relationship, the contention of the learned counsel for the appellant/opposite party No.2 that the policy does not cover the risk of the injured being labourer, is unsustainable. Therefore, opposite party No.2 is liable to indemnify the opposite party No.1 i.e., owner of the vehicle.
19. Even otherwise, the contention of the opposite party No.2 before this Court is certainly based on question of fact. The Hon'ble Supreme Court, in the case of Golla Rajanna v. The Divisional Manager 2 held that as per the scheme of the Workmen's Compensation Act, 1923, the Commissioner is the last authority on facts. In view of the principle laid down in the above said case, since the contentions raised by the learned counsel for the appellant/opposite party No. 2 are based on questions of fact, it is evident that scope of appeal under Section 30 of the Workmen's Compensation Act, 1923, is very limited, thereby the ambit of interfering with the order passed by the Commissioner is also limited until and unless the order passed by the Commissioner is perverse or when there is patent irregularity or 2 2017 (2) ALD 14 (SC) 11 MGP,J CMA_266_2014 illegality committed by the Commissioner while passing the impugned order. Moreover, when two interpretations are possible, the interpretation, which is favourable to the applicant, shall be taken into consideration, since the Workmen's Compensation Act, 1923, is a beneficial legislation enacted to protect the interest of workmen.
20. Coming to the quantum of compensation, the Commissioner after considering all the aspects as well as the evidence on record has rightly determined the age of the applicant and also considered minimum wages while calculating the compensation. Further, considering the evidence of P.W.2 and the injuries sustained by the applicant, the Commissioner has rightly assessed the loss of earning capacity at 60%, which is just and reasonable and interference of this Court is unwarranted.
21. Under these circumstances, this Court is of the considered opinion that the Commissioner after considering all the aspects has rightly awarded just and reasonable compensation and interference of this Court is unwarranted. The appeal is devoid of merits and the same is liable to be dismissed. 12
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22. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated 05.01.2006 in W.C.No.24 of 2004 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Warangal-I. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 20.02.2024 GVR