Karnataka High Court
M/S United India Insurance ... vs Sri Lakshmipathi @ Krishna on 7 June, 2022
Bench: Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.NO.463 OF 2013
C/W
M.F.A.NO.5953 OF 2013
IN M.F.A.NO.463/2013:
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, AKKAMAHADEVI ROAD
P J EXTENSION, DAVANAGERE
REP. BY ITS DIVISIONAL MANAGER.
...APPELLANT
[BY SRI A.M. VENKATESH, ADVOCATE (VC)]
AND:
1. SRI LAKSHMIPATHI @ KRISHNA
S/O SIDDAPPA, AGED 23 YEARS
R/O GOPALAPURA
HIRIYUR TOWN
CHITRADURGA DISTRICT
2. SRI H.K. CHANDRASHEKAR
S/O KAREGOWDA
OWNER OF TATA ACE VEHICLE
BEARING NO. KA-14/A-6632.
...RESPONDENTS
(BY SRI A.B.MANJUNATH, ADVOCATE FOR R1 (VC);
SRI SPOORTHY HEGDE N., ADVOCATE FOR R2 (VC)]
2
IN M.F.A.NO.5953/2013:
BETWEEN:
SRI LAKSHMIPATHI @ KRISHNA
S/O SIDDAPPA, AGED ABOUT 25 YEARS
R/A GOPALAPURA, HIRIYUR TOWN
CHITRADURGA-577 501.
...APPELLANT
[BY SRI A.B.MANJUNATH, ADVOCATE (VC)]
AND:
1. SRI H.K. CHANDRASHEKAR
S/O KAREGOWDA, R/AT DHARMAPURA
HIRIYUR TALUK
CHITRADURGA DISTRICT-572 143.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, P.B.NO.237
AKKAMAHADEVI ROAD, P.J.EXTENSION
DAVANGERE-577 001. ...RESPONDENTS
[BY, SRI SPOORTHY HEGDE N., ADVOCATE FOR R1 (VC);
SRI A.M. VENKATESH, ADVOCATE FOR R2 (VC)]
THIS M.F.A No.463/2013 IS FILED UNDER SECTION 30(1) OF
W.C.ACT AGAINST THE JUDGMENT DATED 16.11.2012 PASSED IN
PÁCa/PÁ£À¥À/J£ïJ¥sï/¹Dgï-128/2011 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA
DISTRICT, CHITRADURGA, AWARDING A COMPENSATION OF
RS.1,93,593/- WITH INTEREST.
THIS M.F.A No.5953/2013 IS FILED UNDER SECTION 30(1) OF
W.C.ACT AGAINST THE JUDGMENT DATED 16.11.2012 PASSED IN
PÁCa/PÁ£À¥À/J£ïJ¥sï/¹Dgï-128/2011 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA
DISTRICT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.03.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
3
JUDGMENT
Challenging order dated 16.11.2012 passed by Labour Officer
and Commissioner for Workmen's Compensation, Chitradurga,
District, (for short 'Commissioner'), in WCA.NFC.CR-128/2011,
above appeals i.e., MFA No.463/2013 is filed by insurer and MFA
5953/2013 is filed by workman.
2. An application was filed by one Lakshmipathi @ Krishna
(for short 'workman') against H.K.Chandrashekar
(for short 'employer') and United India Insurance Company Limited
(for short 'insurer') stating that he was employed as driver in TATA
ACE Mini Luggage tempo bearing registration no.KA-14-A-6232. On
05.06.2011, while driving said vehicle on instructions of employer
on Hulikunte Gate - Amarapura road, he lost control over it. As a
result, it dashed against persons waiting in bus stop and thereafter
overturned, due to which, workman sustained grievous injuries.
Despite treatment, he did not recover fully and sustained loss of
earning capacity. Claiming compensation for same, he filed claim
petition under provisions of Workmen's Compensation Act, 1951,
(for short ' W.C. Act').
3. On service of notice, employer as well as insurer
entered appearance. But, only insurer filed objections, denying
claim petition averments. It was stated that on 05.06.2011, he had
not instructed applicant to drive said vehicle. He not only denied
occurrence of accident and workman sustaining injuries therein, but
also instructing applicant to drive vehicle. As such, he denied
existence of relationship of employer and employee.
4. Based on pleadings, Commissioner framed following
issues:
a) CfðzÁgÀ g ÁzÀ ®Që ö äÃ¥À w C°AiÀ i Á¸ï PÀ È µÀ Ú gÀ ª À g À Ä
PÁ«ÄðPÀ ¥À j ºÁgÀ PÁAiÉ Ä ÝAiÀ Ä PÀ ® A 1 2( 1 ) (J£ï) ¥À æ P ÁgÀ
PÁ«ÄðPÀ £ ÁVzÀ Ý £É A zÀ Ä ¸Á©ÃvÀ Ä ¥À r ¸À Ä ªÀ g É Ã ?
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¥À æ w ªÁ¢AiÀ Ä mÁmÁ J¹ ¸À A SÉ å :PÉ J - 1 4 / J- 6 2 3 2 gÀ ° è
ZÁ®PÀ PÉ ® ¸À ª À £ À Ä ß ¤ªÀ ð ¸À Ä wÛ z ÁÝUÀ
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wêÀ æ ª ÁV UÁAiÀ Ä UÉ Æ AqÀ Ä ±Á±À é v À ¤§ð®vÉ U É
vÀ Ä vÁÛ V gÀ Ä vÁÛ g É A zÀ Ä ¸Á©ÃvÀ Ä ¥À r ¸À Ä ªÀ g É Ã ?
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8, 0 0 0 . 0 0 UÀ ¼ À ªÉ à vÀ £ À ª À £ À Ä ß ºÁUÀ Æ gÀ Æ . 1 0 0 UÀ ¼ À
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¥À r ¸À Ä ªÀ g É Ã ?
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¥À æ w ªÁ¢¬ÄAzÀ ¥À j ºÁgÀ ºÁUÀ Æ §rØ A iÀ Ä £À Ä ß ¥À q É A iÀ Ä ®Ä
CºÀ ð gÁVgÀ Ä vÁÛ g É ?
e) F §UÉ Î DzÉ Ã ±À ª É Ã £À Ä ?
5. In support of his claim, applicant examined himself as
PW.1 and Dr. K.B. Raghavendran, Orthopaedic Surgeon as PW.2.
Exhibits P.1 to P.8 were marked. On behalf of insurer, one of its
official was examined as RW.1. Exs. R2(1) and R.2(2) were marked.
6. On consideration, Commissioner answered issue no.1 in
affirmative, holding workman established employment with
employer. Issue no.2 was answered partly in affirmative holding
that workman sustained partial permanent physical disability at
40% to left lower limb, during course of employment and arising
out of employment. Issue no.3 was answered in affirmative by
determining age of workman as 33 years and his monthly income at
Rs.4,000/-. Issue nos.4 and 5 were answered in affirmative holding
workman entitled for total compensation of Rs.1,93,593/- and
directing employer/insurer to deposit same with interest at 7.5%
per annum within 30 days from date of order and in case of failure,
pay interest at 12% per annum from 17.11.2012 till payment.
7. Aggrieved by said award, insurer filed appeal challenging
award on liability; while workman filed appeal seeking for
enhancement of compensation.
8. Sri A.M.Venkatesh, learned counsel for insurer submitted
that admittedly, workman was holding driving licence to drive light
motor vehicle. But, at time of accident, he was driving a light goods
vehicle without 'transport' endorsement on his driving licence,
which was against policy conditions stipulating requirement of
holding valid and effective driving licence to drive particular class of
vehicle on date of accident. Therefore, liability of insurer was
required to be absolved. But, as Commissioner passed impugned
award holding insurer liable to pay compensation, appeal was filed.
9. It was further submitted that neither employer (owner of
insured vehicle) nor workman produced driving licence to drive
transport vehicle, therefore, violation of policy condition was
established. It was also contended that insured had knowingly
allowed workman to drive goods vehicle in breach of terms of
policy. In support of his submissions, learned counsel relied upon
following decisions:
• 2020 ACJ 3000
Beli Ram vs. Rajinder Kumar and Another
• MFA No.2268/2010 D.D.05.02.2020
Mr.Hubert Ronald D'Souza vs. Sri T.K.Prakash and Another
• MFA No.4664/2005 D.D.12.01.2011
The New India Assurance Co.Ltd. vs. Smt.Zahirunnissa Dastagiri
and Others
• ILR 2007 KAR 4567
Yashodhara B.Shetty vs. United India Insurance Co.Ltd. and Ors.
• MFA No.4008/2010 D.D.31.01.2022
M/s. The United India Insurance Company Limited vs. Smt.
Rankibai and Another
• MFA No.1785/2010 D.D.31.01.2022
M/s. Oriental Insurance Co. Ltd., vs. Smt.Pattammal and Others
• MFA No.7447/2010 D.D.25.11.2020
The Oriental Insurance Co. Ltd., Vs. Mohd. Nazeer and Another
• MFA No.2567/2010 D.D.24.09.2021
The Oriental Insurance Co.Ltd., vs. Smt.Famida and Others.
10. On other hand, Sri. A.B. Manjunath, learned counsel
submitted that, admittedly workman was having valid driving
licence to drive 'light motor vehicle'. As per law laid down by
Hon'ble Supreme Court in Mukund Dewangan Vs. Oriental
Insurance Company Limited, reported in 2017 (14) SCC 663,
coming into force after amendment of Act no.54 of 1994 to Motor
Vehicles Act, wherein, any person having licence to drive 'light
motor vehicle' would be competent to drive 'transport vehicle with
gross vehicle weight of less than 7500 Kgs', and also without
possession of driver's badge or transport endorsement on driving
licence. Therefore, there was no merit in challenge by insurer.
He submitted that due to injuries sustained in accident,
workman sustained 40% permanent physical disability, which
resulted in total loss of earning capacity as driver. Therefore, extent
of loss of earning capacity assessed required enhancement. He
further submitted that award of interest by Commissioner was not
in accordance with decision of Hon'ble Supreme Court in case of
Oriental Insurance Co. Ltd. Vs. Siby George & Ors. reported in
(2012) 12 SCC 540, and sought for allowing workman's appeal.
11. Learned counsel for employer Sri Spoorthy Hegde,
opposed insurer's appeal.
12. In reply, learned counsel for insurer submitted that ratio
of decision of Hon'ble Supreme Court in Mukund Dewangan's
case (supra) would not apply to claims arising under W.C. Act and
said decision was rendered by considering provisions of M.V. Act, as
beneficial legislation. It was submitted that liability of insurer under
provisions of W.C. Act is not statutory, but contractual, which
requires to be interpreted strictly. It was submitted that where
insurer established violation of policy conditions, burden would fall
upon employer to establish that he had verified about validity of
driving licence of driver prior to instruction to drive insured vehicle.
In case of failure of employer to discharge said burden, insurer
could not be made liable. On above grounds, sought for allowing
insurer's appeal, absolving its liability and passing award against
insured.
13. Insofar as quantum of compensation, it was submitted
that even after accident in question, workman had apparently
continued his occupation, as he had not surrendered driving licence.
It was further submitted that injury sustained in accident had not
rendered workman unfit to drive motor vehicle. Therefore,
assessment of extent of disability by Commissioner was excessive
and exorbitant and submitted that there was no scope for
enhancement, even if not for reduction.
14. From above submission, relationship of employer and
employee is not in dispute. Occurrence of accident during course of
employment and out of employment is also not in dispute. Only
dispute is about validity of driving licence of workman to drive
goods vehicle. While learned counsel for insurer submits that
liability of insurer under W.C.Act being contractual, terms and
conditions of policy have to be given strict interpretation and as per
decision in Beli Ram's case (supra), as employer in this case did
not dispute that workman was driving 'light goods vehicle', but, was
possessing driving licence to drive 'light motor vehicle', there was
admitted failure on his part to take due care and caution to ensure
validity of driving licence. Whereas, learned counsel for workman
contends that validity of driving licence has to be tested as per
provisions of Motor Vehicles Act and as such, interpretation of
provisions of M.V.Act by Hon'ble Apex Court in Mukund
Dewangan's case (supra) would enure to benefit of workman. At
same time, workman is also seeking for enhancement of
compensation insofar as assessment of extent of disability and rate
of interest.
15. Substantial questions of law that arise for consideration
herein are:
1. Whether Commissioner was justified in holding
insurer liable to pay compensation even when
workman was driving a 'light goods vehicle' even
when he was having driving licence to drive 'light
motor vehicle' without transport endorsement?
2. Whether assessment of extent of loss of
earning capacity calls for interference?
3. Whether award of interest requires
interference?
Re. Substantial question of law no.1:
16. In the case on hand, it is not in dispute that as on date
of accident i.e., 05.06.2011, workman was having licence to drive
'light motor vehicle' marked as Ex.P.6. Insurer has produced
endorsement issued by RTO, Chitradurga, which states that
workman was having driving licence to drive 'light motor vehicle'
valid from 05.07.2004 to 04.07.2024. Insurance policy is produced
as Ex.R2-2. A perusal of same reveals that vehicle in question is a
TATA Ace HT LGV with Gross Vehicle Weight of 1550 kgs. Relying
upon decisions, insurer contends that workman was not having
valid driving licence.
• In Beli Ram's case (supra) Hon'ble Supreme Court was
considering question of liability of insurer under W.C. Act
in case of violation of terms and conditions of policy.
Examining provisions of Section 3, it was held that
presumption arises about failure of insured to take due
care and caution for verifying validity of driving licence of
workman entrusted to drive vehicle where workman was
driving a commercial vehicle (truck) and his licence had
expired three years prior to date of accident. On said
reasoning, liability of insurer was set aside and employer
was held liable.
• Hubert Ronald D'souza's case (supra) substantial
question of law involved was whether Commissioner was
justified in dismissing claim petition against insurer even
though there was no material to show that driver, who
was driving insured vehicle had no driving licence. This
Court upon arriving at a finding that workman did not
possess driving licence upheld dismissal of claim petition
against insurer.
• In Smt.Zahirunnissa Dastagiri's case (supra)
substantial question of law involved was regarding liability
of insurer to satisfy award when deceased (workman) did
not possess valid driving licence to drive auto rickshaw.
Referring to decision of Hon'ble Supreme Court in
National Insurance Co., Ltd., Vs. Mastan and another
reported in AIR 2006 SC 577, it was held that insurer
would not be liable as deceased did not possess licence.
• Decision in Yashodhara B. Shetty's case (supra) was in
an appeal filed under provisions of M.V.Act, wherein, it
was held that in absence of evidence to discharge burden
of proof of insured, MACT was justified in fastening
liability upon insured absolving insurer.
• Smt. Rankibai's case (supra) substantial question of law
involved was validity of judgment passed by
Commissioner holding insurer liable even when there was
failure to establish that deceased (workman) was having
valid and effective driving licence at time of accident.
Referring to requirement under Rule 106 of Karnataka
Motor Vehicles Rules, 1989 and issuance of notice by
insurer to insured to produce driving licence, it was held
that silence of insured established deceased did not have
valid driving licence and on that score absolved insurer
from liability.
• Smt.Pattammal's case (supra) substantial question of
law involved was regarding liability of insurer to satisfy
award when deceased (workman) did not possess valid
driving licence to drive auto rickshaw. On perusal of
records and concluding that deceased was not having
driving licence, liability upon insurer was set aside.
• Mohd. Nazeer's case (supra) however substantial
question of law was about existence of jural relationship
of employer and employee and on answering same
against workman, claim petition was dismissed.
• Smt.Famida's case (supra) was again a case where
substantial question of law was regarding liability of
insurer when driving licence of deceased (workman) had
expired about 1 ½ years prior to date of accident. Relying
upon Beli Ram (supra) insurer's appeal was allowed.
17. Unlike in Beli Ram's & Smt. Famida's cases (supra),
instant case does not involve question of liability of insurer in
case of claim petition by driver of motor vehicle whose driving
licence had expired, ratio of said decision would not be fully
applicable. In fact as per Ex.R2(1), driving licence of workman is
valid upto 2024. Further facts of present case where workman
produced his driving licence as Ex.P.6 and even insurer produced
endorsement Ex.R2(1) which establishes that workman was
having licence, same was valid as on date of accident, instant
case would be distinguishable from facts in Hubert Ronald
D'souza, Smt. Zahirunnissa, Smt. Rankibai and
Smt. Pattammal's cases (supra). Likewise, in Md. Nazeer's
case (supra), question involved was about existence of jural
relationship of employer and employee about which there is no
dispute herein. Further, ratio of decision in Yashodhara
Shetty's case would be eclipsed by Full Bench decision in New
India Insurance Co., Ltd., Vs. Yallavva & Another reported
in ILR 2020 Kar. 2239 and in any case, being a decision in a
claim petition under provisions of M.V. Act, would not be
squarely applicable.
18. Indeed in Rambha Devi's case, Hon'ble Supreme Court
has referred ratio of decision in Mukund Dewangan's case
(supra) for re-examination before larger Bench. However, it is
seen that Hon'ble Supreme Court has recorded submission of
learned counsel for insurance companies that compensation
determined following principles laid down in Mukund
Dewangan's case (supra) would be paid. There is no order not
to give effect to principles in Mukund Dewangan's case.
19. Hon'ble Supreme Court in Mukund Dewangan's
case (supra) after considering effect of amendment to provisions
of M.V. Act under Amending Act No.54 of 1994, has held that
wherein, any person having licence to drive 'light motor vehicle'
would be competent to drive transport or goods vehicle with
gross vehicle weight of less than 7500 Kgs., without possessing
driver's badge or transport endorsement on driving licence.
Driving Licences issued under provisions of M.V. Act can be
questioned for their validity in context of provisions of enactment
under which they are issued. Validity cannot be decided in
context of claim being under W.C. Act. However, provisions of
said Act would hold field insofar as liability is concerned as
observed in Beli Ram (supra). Admittedly, workman herein was
having valid driving licence to drive 'light motor vehicle' as on
date of accident and gross vehicle weight of insured vehicle was
1550 Kgs. Therefore, Commissioner was fully justified in holding
insurer liable to pay compensation.
Re. Substantial question of law no.2:
20. Insofar as quantum of compensation, workman sustained
fracture of right clavicle, medial malleolus of right ankle-joint
apart from abrasions on right shoulder, right arm and forearm.
To establish injuries, he produced Ex.P.4 - wound certificate,
Ex.P.7 - disability certificate and Ex.P.8 - X-ray films. He has
also examined Dr.K.B.Raghavendra, orthopedician, who deposed
that due to injuries sustained in accident, workman was suffering
from partial permanent physical disability to an extent of 46%.
Referring to x-ray, he deposed that there was mal-union of
fractured bones and fractured site caused pain, due to which he
was unable to lift heavy object in his left hand and unable to
walk long distances or sit for long duration. Said witness has
been cross-examined by insurer. It was suggested that without
any fractures being sustained by workman, he had stated in his
report about mal-union of fractures and pain. However, it is
elicited that fractures sustained were simple in nature and
normally, such fractures heal in 6 to 8 weeks duration. Only
material elicitation is that disability assessed was to affected
limbs, but with a clarification that in respect of whole body, it
would have to be reduced by 5%. Based on said evidence,
Commissioner assessed loss of earning capacity at 40%.
21. Though, learned counsel for workman submitted that
permanent physical disability to an extent of 40% would lead to
total loss of earning capacity in case of a driver, there is
absolutely nothing stated same by PW.2- doctor. Ex.P.7 -
disability certificate was marked subject to objections. But,
PW.2 does not deposed about extent of disability in respect of
each of fractures.
22. On other hand, though, insurer is seeking to challenge
assessment of loss of earning capacity, there is hardly any cross-
examination about same or even suggestions made to PW.2.
Under such circumstances, assessment of loss of earning
capacity by Commissioner, referring to oral evidence of PW.2
cannot be said to be either suffering from perversity or
capriciousness. Same would not call for any interference. In any
case, no substantial questions of law would arise for
consideration.
Re. Substantial question of law no:3:
24. In the instant case, Commissioner had awarded interest
at rate of 7.5% from date of filing of claim petition till date of
impugned order and thereafter at 12% from 17.11.2012 till
deposit. Interest payable on award is governed by sub-Section
3(a) of Section 4A of W.C. Act, which reads as follows:
(3) Where any employer is in default in paying the compensation
due under this Act within one month from the date it fell due, the
Commissioner shall--
(a) direct that the employer shall, in addition to the amount of the
arrears, pay simple interest thereon at the rate of twelve per cent
per annum or at such higher rate not exceeding the maximum of
the lending rates of any scheduled bank as may be specified by the
Central Government, by notification in the Official Gazette, on the
amount due;
Said provision has been interpreted by Hon'ble Supreme
Court in Oriental Insurance Co., Ltd., Vs. Siby George reported
in (2012) 12 SCC 540, to hold that employer would be liable to
pay interest at 12% per annum from one month after date of
accident, if compensation is not deposited within that time. Above
provision and decision of Apex Court do not leave any room for
different opinion. Impugned award being contrary to above law laid
down, is liable for interference as being capricious. Substantial
question of law no.3 is answered in negative, it is held that
workman would be entitled to simple interest at 12% per annum
from one month after date of accident i.e., from 06.07.2011 till
deposit.
Hence, I pass following :
ORDER
MFA No.463/2013 filed by insurer is dismissed.
MFA No.5953/2013 filed by workman is allowed in part only
insofar as interest payable on award.
It is held that workman would be entitled to simple interest
at 12% per annum from one month after date of accident i.e.,
from 06.07.2011 till deposit.
Sd/-
JUDGE
Bvk
