Icici Lombard General Ins Company, ... vs Md. Sadulla, Hyderabad And 2 Others

Telangana High Court

Icici Lombard General Ins Company, ... vs Md. Sadulla, Hyderabad And 2 Others on 22 January, 2024

       HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

        CIVIL MISCELLANEOUS APPEAL No.83 of 2016

JUDGMENT:

1. The present Civil Miscellaneous Appeal has been directed against

order dated 27.11.2015 in W.C.No.159 of 2015 on the file of the

Commissioner for Employees' Compensation and Assistant

Commissioner of Labour-IV, Hyderabad (hereinafter referred to as 'the

Commissioner'). The said case was filed by respondent No.1 herein

seeking compensation for injuries sustained by him in an accident that

occurred on 05.08.2010 and the same was partly allowed granting

compensation of Rs.6,17,469/-. Aggrieved by the same, the present

Civil Miscellaneous Appeal is filed at the instance of the insurance

company i.e., opposite party No.2 before the Commissioner.

2. 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 is that, he was working

as a clerk (gumastha)-cum-hamali on the lorry bearing No.AP 09Y 9618

under the employment of opposite party No.1 for transportation of

tomato load from Perket to Hyderabad. On 05.08.2010, while he was

proceeding on the above said lorry, on the way when he reached near

Pendhurthy Petrol Pump on NH-7 situated in the limits of 2 MGP,J CMA_83_2016

Paatharajampet village, the driver of the said lorry drove the vehicle in a

rash and negligent manner and dashed against the road divider and

accident took place. As a result, he sustained grievous injuries besides

multiple fractures on his both legs and immediately, he was shifted to

Government Hospital, Kamareddy and after first aid, he was shifted to

Gandhi Hospital, Secunderabad. Based on a complaint, the Police,

Devanpally Police Station, registered a case in Crime No.162 of 2010.

According to the applicant, he was aged about 33 years as on the date

of the accident and was being paid an amount of Rs.8,000/- per month

as a clerk under the employment of opposite party No.1. Due to the

accident, his left leg was amputated above knee level and operated for

his right leg fracture injury. Hence, the applicant filed the present claim

petition seeking compensation of Rs.12,00,000/- for the injuries

sustained by him in the accident.

4. Before the Commissioner, the opposite party No.1, employer filed

counter stating that he is the owner of the lorry and admitted that he

has given the lorry on hire basis for transportation and the claimant

was employed through the hirer of his lorry as hamali and the claimant

has been working as hamali on the said lorry and admitted the fact that

the claimant sustained injuries while performing his duties. He firstly

contended that the risk of driver and owner-driver is covered under the

insurance policy issued to opposite party No.1 and there is no coverage 3 MGP,J CMA_83_2016

for any other employee and in the present case, the claimant was not at

all the employee of opposite party No.1 as such, there was no coverage

for the claimant. He further stated that the said lorry was insured with

opposite party No.2 and prayed to dismiss the application against him.

5. On the other hand, the opposite party No.2, insurer, filed counter

denying the averments of the application such as employee-employer

relationship, salary, age of the claimant and manner of accident. He

further contended that unless and until the applicant sustained injuries

during his employment and the driver of the said lorry was holding a

valid and effective driving license, the Insurance Company is not liable

to pay the compensation. He lastly contended that claim is excessive

and exorbitant and prayed to dismiss the application.

6. Before the learned Commissioner, on behalf of the applicant,

AWs. 1 to 3 were examined and Exs.A1 to A17 were marked. Exs.A1 to

A.5 are the certified copies of FIR, crime details form, Charge sheet, two

MLC certificates, Discharge card of Gandhi Hospital, Secunderabad.

Ex.A.6 is the case sheet issued by Gandhi Hospital, Secunderabad.

Ex.A.7 is the disability certificate issued by the District Hospital,

Hyderabad. Ex.A.7/1 is the disability certificate issued by Gandhi

Hospital, Secunderabad. Ex.A.8 is the photograph of the applicant.

Ex.A.9 is medical bills for Rs.31,5988/- .Ex.A.10 is I.D card of the 4 MGP,J CMA_83_2016

applicant. Ex.A.11 is copy of RC of the lorry. Ex.A.12 is the copy of

insurance policy. Ex.A.13 is the copy of driving license of the driver of

the lorry. Ex.A.14 is copy of permit of the lorry. Ex.A.15 is copy of tax

receipt. Ex.A.16 is copy of fitness certificate. Ex.A.17 is copy of order

dated 10.12.2013 in O.P.No.584 of 2010. Whereas, on behalf of the

opposite party No.2, RW1 and RW2 were examined and Exs.B1 to B5

were marked. Ex.B1 is the copy of insurance policy, Ex.B.2 is office

copy of notice send to opposite No.1. Ex.B.3 is postal receipt of Ex.B.2.

Ex.B.4 is investigation report and Ex.B.5 is copy of case sheet issued by

Gandhi Hospital, Secunderabad.

7. On the basis of the above pleadings and evidence, the

Commissioner framed the following issues for consideration:

"1. Whether the applicant met with an accident on 05.08.2010 and sustained injuries during the course and out of his employment as a clerk (gumastha)-cum- hamali on the lorry bearing No. AP 09Y 9618 under the employment of opposite part No.1 employed by the hirer of the said lorry?

2. If yes, what is the percentage of loss of earning capacity suffered by the applicant?

3. Who are liable to pay compensation to the applicant? and

4. What is the quantum of compensation entitled by the applicant?

MGP,J CMA_83_2016

8. After considering the evidence and documents filed by both

sides, the Commissioner awarded compensation of Rs.6,17,469/-

by determining the wages of the applicant as Rs.5,199.25/- and

applying the relevant factor '197.06' for the age of the applicant

being 35 years. Aggrieved by the same, the present appeal is filed

at the instance of opposite party No.2 i.e., the insurance company.

9. Heard learned Standing Counsel for Insurance Company

and learned counsel for applicant. Perused the entire record.

10. Learned Standing counsel for the Insurance Company

contended that the risk of applicant is not covered under the

insurance policy as the applicant is a gratuitous passenger. He

further contended that though AW. 2 assessed the disability at

70%, the Commissioner has erroneously fixed the loss of earning

capacity at 100% and prayed to dismiss the application against

the Insurance Company.

11. On the other hand, learned counsel for the applicant sought

to sustain the impugned order passed by the Commissioner

contending that after considering the age, avocation and injuries

sustained by the applicant, the Commissioner has rightly awarded 6 MGP,J CMA_83_2016

reasonable compensation, which needs no interference by this

Court.

12. This Court has perused the record and found that the

applicant himself was examined as AW. 1 and in his chief

examination, he reiterated the averments of the petition. In

support of his injuries, he got examined AW.2, Orthopaedic

Surgeon. AW.2 deposed that he examined the applicant clinically

and radiologically and found that the applicant sustained above

knee amputation of left leg due to Grade-III B both bones fracture

left leg with vascular deficit and Grade-III open comminuted both

bones at right leg fracture upper cured. He assessed the

percentage of disability at 70% and issued disability certificate

under Ex.A.7 as the applicant cannot discharge his duties with

the same efficiency as earlier. The Honourable Supreme Court in

Jithendran v. The New India Assurance Company Limited and

another 1, held as under:

"13. The extent of economic loss arising from a disability may not be measured in proportions to the extent of permanent disability. This aspect was noticed in Raj Kumar Vs. Ajay Kumar and Anr.4, where Justice R.V. Raveendran made the following apt observations:

Civil Appeal No.6494 of 2021 (Arising out of SLP(C) No.13213 OF 2019) decided on 27.10.2021 7 MGP,J CMA_83_2016

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced shows 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."

MGP,J CMA_83_2016

13. In view of the principle laid down above, it is clear that

extent of economic loss arising from a disability may not be

measured in proportions to the extent of permanent disability.

Moreover, it is observed that AW.2 i.e., the doctor has assessed

the partial permanent disability at 70% and loss of earning

capacity at 100%. However, the Commissioner by considering the

nature of injuries sustained by the applicant and the nature of the

duties discharged by the applicant, has observed that the

applicant developed above knee amputation of left leg, as such it

was not possible for the applicant to perform his duties with same

efficiency as he was doing on the date of the accident. Thus, the

Commissioner, has rightly fixed the percentage of loss of earning

capacity of the applicant at 100%. Therefore, this Court is not

inclined to interfere with the findings of the Commissioner, so far

as percentage of loss of earning capacity of the applicant.

14. Admittedly, at the time of the accident, apart from driver, the

applicant, who is a hamali was travelling in the said lorry. On

behalf of opposite party, its Manager legal, was examined and in

his chief examination, he deposed that policy was issued to the

said lorry vide insurance policy bearing 9 MGP,J CMA_83_2016

No.3003/55121276/01/000 which was valid from 07.10.2009 to

06.10.2010 and the policy was subsisting as on the date of the

accident. In Oriental Insurance Company Limited v. Meena Variyal

and others 2, the Honourable Supreme Court observed 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."

2 (2007) 5 SCC 428 10 MGP,J CMA_83_2016

15. In National Insurance Company Limited v. Prembai Patel and

others 3, the Honourable Supreme Court held as under:

"15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act."

16. In view of the above discussion and considering the principle

laid down in the above said authorities and since the applicant is

not a gratuitous passenger and as the applicant is an employee

rendering his services to the opposite party No.1 under employee-

employer relationship, the contention of the learned Standing

Counsel for the opposite party No.2 that the policy does not cover

the risk of applicant as the accident occurred while they were

travelling in the lorry but not at the time of loading or unloading,

3 AIR 2005 SC 2337 11 MGP,J CMA_83_2016

is unsustainable. Therefore, the opposite party No.2 is liable to

indemnify the opposite party No.1 i.e., owner of the lorry.

17. Though several grounds were raised by the learned Standing

Counsel for the appellant-insurance company, it appears that

most of such grounds are based on question of fact but not on

question of law, more particularly, when the opposite party No.2

failed to establish that there are errors apparent on the face of the

record. The Honourable Supreme Court in North East Karnataka

Road Transport Corporation v. Sujatha 4 held as under:

"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.

10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.

(2019) 11 SCC 514 12 MGP,J CMA_83_2016

11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.

12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."

18. In view of the principle laid down in the above said

authority, it is clear that the above contention of the appellant -

insurance company is not based on a question of law but it is

purely a question of fact, which cannot be raised before this Court

as per Section 30 of the Workmen's Compensation Act.

19. Insofar as quantum of compensation is concerned, this

Court is of the considered opinion that the Commissioner after

considering all the above said aspects has rightly awarded the

compensation in favour of the applicant and thus, learned

Commissioner has not committed any irregularity or illegality

while passing the impugned order. Hence, this Court does not see

any reason to interfere with the impugned order passed by the 13 MGP,J CMA_83_2016