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Judgment
B. Manohar, J. - Oriental Insurance Company Limited has filed this appeal challenging the judgment and order dated 13.5.2010 made in W.C/NF/No. 144/2.008 passed by the Labour Officer and Commissioner for Workmen''s Compensation Bagalkot (hereinafter referred to as ''the WCC'' for short) fastening the liability on them to compensate the claimant.
Respondent No. 1 herein filed a claim petition contending that he was working as a driver in a lorry bearing Reg.No.KA-25/A-3539 belonging to respondent No. 2 herein. On 6.3.2008 after loading the jowar and proceeding towards Ranebennur, the driver lost control and the vehicle turned turtle. As a result of which, the claimant sustained grievous injuries. Immediately after the accident, he was shifted to Government Hospital Guttal and thereafter took treatment at Shreyas Hospital, Hlubli. As on the date of accident he was aged about 29 years and owner of the vehicle was paying him salary of Rs. 150/- per day and Rs. 50/- as batta. The accident occurred during the course and out of employment. The vehicle was insured with the Insurance Company. Hence, both the owner as well as the Insurance Company are liable to compensate the claimant and sought for compensation of Rs. 4,00,000/-.
In response to the notice issued by the WCC, the owner of the vehicle entered appearance and filed written statement admitting that the claimant was working as a driver in his lorry and during the course and out of employment he has sustained employment injuries. The respondent-Insurance Company filed the written statement denying the entire averments made in the claim petition and also disputed the relationship of master and servant between the claimant and the owner of the vehicle.
On the basis of pleadings of the parties, the WCC framed necessary issues for its consideration.
The claimant in order to prove their case, got examined themselves as PW2 and got marked the documents as Ex.PI to P14. On behalf of the respondents, none of the witnesses were examined, however, insurance policy was marked as Ex.R-2(1).
The WCC, after appreciating the oral and documentary evidence let in by the parties held that the. claimant was working as a driver in the said lorry and sustained employment injuries during the course and out of employment. Hence, the claimant is entitled for compensation. With regard to the quantum of compensation, in the accident, the claimant has sustained fracture of TL-Vertebra. The Doctor assessed the disability to an extent of 35%. The WCC taking into consideration the minimum wages being paid to the driver had taken the income of the claimant as Rs. 3,700/- per month, taking, 60% thereof and disability to an extent of 35%, as assessed by the Doctor, applied the relevant factor 211.79, since as on the date of accident the claimant was aged about 29 years, awarded the compensation of Rs. 1,64,560/- with 12% interest from one month after the date of accident.
The appellant-Insurance Company being aggrieved by the judgment and order passed by the WCC filed this appeal contending that due to the rash and negligent driving by the claimant itself, the accident occurred. He was a tort feasor. Hence, Insurance Company is not liable to compensate the claimant. Further, the quantum of compensation awarded by the WCC is also on the higher side.
On the other hand, the learned Counsel for the first respondent argued in support of the judgment and order passed by the WCC and sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned Counsel appearing .for the parties and perused the impugned judgment and order and other relevant records.
The occurrence of the accident, injuries sustained by the claimant during the course and out of employment are not dispute. The contention of the Insurance Company is that the claimant was working as a driver, due to his negligence, the accident occurred and he is not entitled for compensation. The records clearly discloses that while he was working as a driver in the offending vehicle after loading jowar and proceeding towards Ranebennur, due to bad condition of the road, the driver lost control over the vehicle and the vehicle turned turtle. In view of that, the claimant has sustained injuries. "The accident occurs accidentally" due to bad condition of road. Hence, the question of fastening the liability on the driver does not arise. With regard to the quantum of compensation is concerned, in the accident, the claimant has sustained fracture of TL-vertebra bone. The doctor who issued disability certificate assessed the loss of earning capacity to the extent of 35% taking into consideration the injuries sustained as required under section 4(1)(c)(ii) of the Employees Compensation Act, 1923. The compensation awarded by the WCC is just and fair compensation. Hence, I find there is no illegality or infirmity in the judgment and order passed by the WCC. No case is made out by the appellant to interfere with the same and also there is no substantial question of law that arises for consideration. Accordingly, the appeal is dismissed.
The amount in deposit shall be transferred to the Civil Judge (Sr.Dn.), Bagalkot along with all records, if any, for disbursement.