The Oriental Insurance Co. ... vs Shaikh Rahim S/O Shaikh Yusuf And ...
2015 Latest Caselaw 9 Bom

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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.




                                                    
                                             ********


                                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

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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

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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.

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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

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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

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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) =

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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