Telangana High Court
Iffco Tokio General vs Mohd. Imran Ahmed on 9 July, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
CIVIL MISCELLANEOUS APPEAL No.1029 of 2018
JUDGMENT:
This Civil Miscellaneous Appeal is filed by the appellant - opposite party
No.2 (for short "O.P.2") - Insurance Company aggrieved by the order dated
11.07.2018 passed in E.C.No.206 of 2016 by the Commissioner for Employees
Compensation and Assistant Commissioner of Labor-IV, T.Anjaiah Karmika
Samkshema Bhavanam, RTC 'X' Roads, Hyderabad.
2. The respondent No.1 is the applicant - injured workman and the
respondent No.2 is the opposite party No.1 (for short "O.P.1") - owner of the
bus bearing No.KA-01-AC-6193.
3. The parties are hereinafter referred as arrayed before the Commissioner.
4. The applicant filed a claim application before the Commissioner under
the provisions of the Employee's Compensation Act, 1923 (for short "the Act")
for the personal injuries sustained by him in an accident that occurred on
26.10.2016 during the course of and out of his employment.
5. The case of the applicant was that he was aged 38 years. He was working
as a driver on the bus bearing No.KA-01-AC-6193 owned by respondent No.1 -
owner of the vehicle in E.C.No.206 of 2016. He was paid wages of Rs.15,000/-
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per month by the date of the accident. On 26.10.2016, while he was on duty
proceeding on the said bus from Hyderabad to Mumbai and when the bus
reached MI Tea Corner, Hotel Red Chilli, Loni Kalbhor Village, at about 05:45
hours, a container lorry bearing No.MH-06-AS-8188 came with high speed in a
rash and negligent manner and hit the bus of the applicant. Due to which, the
applicant sustained fracture of left leg besides other injuries. The applicant
lodged a complaint before PS Loni Kalbhor and the same was registered as
Crime No.976 of 2016 under Sections 279, 337, 338 and 184 of IPC against the
driver of the container lorry. The petitioner claimed that the bus was validly
insured with O.P.2. As such, the O.Ps.1 and 2 were jointly and severally liable
to pay compensation to him. The applicant claimed compensation of
Rs.10,00,000/- with interest @ 12 % per annum from the date of accident till the
date of realization with costs.
6. The O.P.1 - owner of the vehicle remained ex-parte.
7. The O.P.2 - Insurance Company filed its counter. It called for strict
proof of the petition averments and that the compensation claimed was
excessive and exorbitant.
8. Before the Commissioner, the applicant examined himself as AW.1 and
got filed Exs.A1 to A12 on his behalf. He got examined an Orthopedic
Surgeon, who issued the disability certificate marked under Ex.A7, as AW.2.
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The O.P.2 - Insurance Company got examined a legal executive of its company
as RW.1 and a Junior Assistant in RTA, Hyderabad as RW.2 and got marked
Exs.B1 to B4 on its behalf.
9. On considering the oral and documentary evidence on record, the learned
Commissioner held that the applicant was a workman as defined under the Act,
as he worked as a driver on the bus bearing No.KA-01-AC-6193 under the
employment of O.P.1 and sustained injuries in the accident during the course of
and out of his employment. Considering the evidence of AWs.1 and 2, the
learned Commissioner observed that the applicant sustained a comminuted
fracture of left tibia, developed stiffness of left foot with limping and was
unable to drive the vehicle, as such assessed the loss of earning capacity of the
applicant as 80%.
10. The main contention of O.P.2 was that the applicant renewed his driving
license subsequent to the date of accident. As such, no disability was sustained
by him and that the applicant was not holding a valid and effective driving
license as on the date of accident to drive transport category of vehicles and got
examined RWs.1 and 2 in support of his contention. But, however, the
Commissioner rejected the said contentions of O.P.2 - Insurance Company and
held both O.Ps.1 and 2 jointly and severally liable to pay compensation to the
applicant. The Commissioner calculated the wages of the applicant as per the
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minimum rates of wages fixed by the Government as per G.O.Ms.No.83, LET
& F (Lab-II) Department, dated 22.11.2006 with effect from 04.12.2006 and
calculated the compensation as Rs.7,27,910/- and including stamp fee and
advocate fee, directed O.Ps.1 and 2 to pay total compensation of Rs.7,31,366/-
with interest @ 12 % per annum from 31st day after the accident i.e.from
27.11.2016 till the date of realization.
11. Aggrieved by the said orders of the Commissioner, the O.P.2 - Insurance
Company preferred this appeal raising several questions as substantial questions
of law.
12. Heard Sri K.Ajay Kumar, learned counsel for the appellant and
Smt.Annapoorna Sreeram, learned counsel representing Smt.A.Chaya Devi,
learned counsel for the respondent No.1 - applicant on record.
13. Learned counsel for the appellant - Insurance Company contended that
the Commissioner erred in awarding an amount of Rs.7,31,366/- with interest @
12 % per annum. There was absolutely no liability on the appellant for payment
of any compensation. The Commissioner failed to consider that the respondent
No.1 - applicant failed to examine the employer to prove the employer -
employee relationship at the time of accident and that the applicant sustained
injuries in the accident that arose out of and in the course of his employment.
The owner of the vehicle did not contest the main case and colluded with the
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applicant. A false case was foisted by the applicant. No treatment was given by
AW.2, but issued the disability certificate stating disability as 60% and loss of
earning capacity as 100%. AW.2 was a stock witness in the Workmen's
Compensation cases. The owner of the vehicle had violated the terms and
conditions of the policy by handing over the vehicle to the driver, who was not
holding a valid and subsisting driving license to drive the transport vehicle. The
Commissioner erred in not considering the evidence of RW.2, who stated about
the renewal of driving license of the applicant after the accident. As such, the
applicant was driving the vehicle even after the accident and not sustained any
loss of earning capacity and prayed to set aside the order of the Commissioner
in E.C.No.206 of 2016 dated 11.07.2018.
14. Learned counsel for the respondent No.1 - claimant on the other hand
contended that the appeal provided under Section 30 of the Employee's
Compensation Act, 1923 to the High Court against the order of the
Commissioner was not like a regular first appeal. The appellate jurisdiction of
the High Court to decide the appeal was confined only to examine the
substantial questions of law arising in the case. No substantial questions of law
were arising in the present case and relied upon the judgment of the Hon'ble
Apex Court in Fulmati Dhramdev Yadav and Another v. New India
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Assurance Company Limited and Another 1. As seen from the judgment of
the Hon'ble Apex Court in the above case relied by the learned counsel for the
respondent No.1 - applicant, the Hon'ble Apex Court on considering Section 30
of the Employee's Compensation Act, 1923, held that:
"17. The Act is unequivocal in stating that an
appeal from an order of Commissioner can be
entertained only if there exists a substantial
question of law to be considered. It has been
observed by this Court that the phrase
"substantial question of law" within this Act
shall be understood by its general meaning.
When considering the general meaning of this
phrase, naturally, the reference is to the Code of
Civil Procedure (CPC). The rule therein is that
framing of a substantial question of law is of
cardinal importance.
19. The wording of the Act indicates that the
existence of such a question is a prerequisite to
the appeal being entertained.
20. Illustratively, in North - East Karnataka
Road Transport Corporation v. Sujatha
[(2019) 11 SCC 514] (Two-Judge Bench)
amongst numerous other cases, this Court has
observed:
"12. In other words, the appeal
provided under Section 30 of the
Act to the High Court against the
2023 Law Suit (SC) 880
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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."
21. The other ground making the order under
challenge, amenable to interference when the
scope of jurisdiction is circumscribed by it being
exercised only in cases of "substantial question
of law", is perversity in the findings. Here, the
impugned judgment does not, even remotely,
reflect the observation that the findings arrived
at by the Commissioner are perverse. The
difference, between the two judgments, i.e., the
order of the Commissioner and the judgment in
First Appeal, was on the point of the employer -
employee relationship having been established.
The Commissioner held such relationship to
have been established however, the appeal Court
observed that "claimants have clearly failed to
prove this aspect.
23. It has also been observed by this Court that
the Commissioner is the last authority on facts
involved in a case. In Golla Rajamma & Ors.
v. Divisional Manager & Anr. [(2017) 1 SCC
45] (2-Judge Bench) it was observed that "under
the scheme of the Act, the Workmen's
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Compensation Commissioner is the last
authority on facts. Parliament has thought it fit
to restrict the scope of the appeal only to
substantial questions of law, being a welfare
legislation. Unfortunately, the High Court has
missed this crucial question of limited
jurisdiction and has ventured to reappreciate the
evidence and recorded its own findings on
percentage of disability for which also there is
no basis. The whole exercise made by the High
Court is not within the competence of the High
Court under Section 30 of the Act."
15. This Court does not find any reason to interfere with the order of the
Commissioner, as he is the last authority on facts involved in the case. The
Hon'ble Apex Court in the above case also held that:
"30. It is well-established that the Act is a social
welfare legislation and, therefore, it must be
given a beneficial construction. Matters there
under are to be adjudicated with due process of
law and also with a keen awareness of the scope
and intent of the Act. This Court has, time and
again, reiterated this principle. We may refer to
K. Sivaraman v. P. Sathishkumar [(2020) 4
SCC 594], wherein, speaking for the Court, Dr.
D.Y Chandrachud J., observed: -
"25. The 1923 Act is a social
beneficial legislation and its
provisions and amendments
thereto must be interpreted in a
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manner so as to not deprive the
employees of the benefit of the
legislation. The object of
enacting the Act was to
ameliorate the hardship of
economically poor employees
who were exposed to risks in
work, or occupational hazards by
providing a cheaper and quicker
machinery for compensating
them with pecuniary benefits.
The amendments to the 1923 Act
have been enacted to further this
salient purpose by either
streamlining the compensation
process or enhancing the amount
of compensation payable to the
employee."
(Emphasis supplied)
31. It may be noted that the Commissioner had
not returned any findings in respect of the
validity or invalidity of the license of the
deceased nor was it one of the questions framed
by the Commissioner for consideration. In such
a situation, while exercising powers within the
limited purview allowed by Section 30 of the
Act, the learned Court below erred in making
observations and giving a holding in that regard.
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16. In the present case also, the Commissioner framed four (04) issues for
consideration as follows:
1. Whether the applicant sustained injuries in the accident on 26.10.2016 during
the course and out of his employment as a driver on the bus bearing No.KA-01-
AC-6193 under the employment of the O.P.1.?
2. If yes, what is the percentage of physical disability and consequent loss of
earning capacity suffered by the applicant?
3. Who are liable to pay compensation to the applicant? and;
4. What is the amount of compensation entitled by the applicant?
17. No issue was framed with regard to the validity of the license of the
injured. However, the learned Commissioner in detail considered the
contentions raised by the learned counsel for the appellant - Insurance Company
and considering the evidence of RW.2 and the documents marked as exhibits,
held that:
"20. As seen from Ex.A10, driving license relied
on by the applicant, it is evident that the
applicant was authorized to drive transport
vehicles with effect from 21.02.2014 till
22.03.2017 and Ex.A10 was issued by the
Licensing Authority, RTA, Hyderabad South
Zone and as per Ex.A10, the applicant is holding
a valid and effective driving license as on the
date of accident to drive transport category
vehicles. As seen from Ex.B4 marked by the
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O.P.2 through RW.2 that the applicant was
authorized to drive transport vehicles with effect
from 05.02.2008 to 01.02.2011 and there is no
renewal entry from 01.01.2011. The driving
license number i.e. DLRAP01235202008
mentioned in Ex.A10 and Ex.B4 is one and the
same and the badge number i.e.5638 mentioned
both in Ex.A10 and Ex.B4 is one and the same
and the date of first issue of driving license i.e
10.03.1998 is also one and the same both in
Ex.A10 and Ex.B4. But the moot question
whether the applicant is having a valid and
effective driving license as on the date of
accident or not. Ex.A10 filed by the applicant
was not in dispute. RW.2, Junior Assistant from
RTA, Hyderabad South Zone during the cross-
examination by the applicant said that as per
their record, there is no entry regarding the
renewal of driving license from 21.02.2014 to
22.03.2017. The name of the applicant, his
father's name, his residential address, his date of
birth, the driving license number, the date of
issue of driving license, the badge number and
the licensing authority, are one and the same in
Ex.A10 and Ex.B4. Further, RW.2 did not
dispute Ex.A10 that it was not issued by the
Licensing Authority, RTA, Hyderabad South
Zone or it is a fake driving license. The entry in
Ex.B2 regarding the renewal of driving license
up to 09.02.2020 for transport category is also
not found in Ex.B4 as well as in Ex.A10. In
these discrepancies in Ex.A10, Ex.B2 and
Ex.B4, I am not inclined to disbelieve Ex.A10.
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The O.P.2 argued that the applicant had renewed
his driving license after the accident but O.P.2
called RW.2, the official of the RTA, South
Zone, Hyderabad, who affirmatively stated that
there is no entry regarding renewal of license
from 21.02.2014 to 22.03.2017. Further, RW.2
was not confronted with Ex.B2 by O.P.2. Even
assuming that the driving license was not valid
as on the date of accident as contended by
RW.2, a driver once licensed continues to
possess the ability to drive the vehicle unless it
is proved that he has incurred any physical
disability to drive the vehicle. But in the present
case, there is no material on record that the
applicant has incurred any physical disability to
drive the vehicle on the date of accident.
Moreover, the O.P.2 has not placed any
acceptable evidence to prove that the applicant
is driving the vehicles continuously after the
accident."
18. Even with regard to assessing the loss of earning capacity, the learned
Commissioner considering the evidence of AWs.1 and 2, held that:
"The applicant had compound fracture left tibia
and subsequently he developed stiffness of left
foot with limping and with the above fracture
and the resultant disabilities, it is not possible
for the applicant to work as a driver with the
same efficiency as he was driving the vehicle
when he met with the accident. Further, the
percentage of disability cannot be equated with
the percentage of earning capacity, as they are
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conceptually different. Therefore, considering
the nature of the injuries sustained by the
applicant and his nature of work as a driver and
also considering the opinion of AW.2 and in the
light of above case laws, I am inclined to assess
that the applicant has suffered 80% loss of
earning capacity as driver."
19. Even with regard to the employer - employee relationship, the learned
Commissioner observed that basing on the complaint given by the applicant in
the PS, Loni Kalbhor Village, Pune District of Maharashtra State, a case was
registered as Crime No.976 of 2016 and after due investigation, police filed
charge sheet against the driver of the container lorry. The applicant was shown
as the complainant and driver of the bus bearing No.KA-01-AC-6193 in the
police records. He was admitted at Shivam Hospital, Pune for treatment, as per
Ex.A4. The documents also further establish that O.P.1 was the registered
owner of the said bus bearing No.KA-01-AC-6193. But for his employment as
a driver engaged in driving the bus bearing No.KA-01-AC-6193, the applicant
had no reason to be in the vehicle, in that particular spot at that particular
moment. In the course of his employment and by reason of his employment, he
met with an untoward event. Nothing was elicited to disbelieve the claim of the
applicant and the documents relied on by him. Basing on the documents and
the oral evidence placed on record and in the absence of contra evidence held
that the applicant was a workman as defined under the Act under the
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employment of O.P.1 and sustained injuries in the accident occurred on
26.10.2016 during the course and out of his employment.
20. Considering the facts and circumstances of the case and the principles of
the Employee's Compensation Act, 1923 as stated by the Hon'ble Apex Court in
the above case, this Court does not find any merit in the contention of the
learned counsel for the appellant - Insurance Company or any substantial
questions of law arising in this matter.
21. In the result, the Civil Miscellaneous Appeal is dismissed confirming the
order of the Commissioner passed in E.C.No.206 of 2016 dated 11.07.2018.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any
shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 09th July, 2024
Nsk.
