National Insurance Company Ltd. vs Ramappa Basappa Allayyanavara and Others

B. Veerappa, J.—1. All these appeals are filed by the National Insurance Company Ltd., challenging the judgment and award dated 30.04.2007 made in WCA.SR.102, 103 & 104/2006 granting compensation of Rs. 1,11,830/-, Rs. 78,035/- and Rs. 71,575/- respectively with interest at 12%p.a. after 30 days from the date of the order.

The respondents/claimants filed claim petition seeking compensation before the Commissioner for Workmen''s Compensation under the provisions of Section 4(1) of the Workmen''s Compensation Act, 1923 (Hereinafter referred to as ''the Act'' for short) contending that all these claimants have suffered injuries in the course of employment while working with the 2nd respondent as coolies in the vehicle bearing Tata 407/Goods Tempo No. KA 24/2133 belonging to the 2nd respondent and it is their further case that during the course of employment on 13.07.2005 on account of rash and negligent driving of the said vehicle by its driver, the claimants fell down and sustained injuries, hence filed claim petition before the Commissioner for Workmen''s Compensation seeking compensation.

The 2nd respondent - owner of the vehicle filed objections before the and admitted that the petitioners/claimants were working as coolies under him for last several years in different places which were owned by him and the claimants used to go on the said vehicle which was owned by him as per his directions and he was paying Rs. 3,000/- salary per month and Rs. 30/- bata per day and admitted jural relationship between the claimants and himself and also stated that the driver of the offending vehicle was involved in the accident and the driver of the vehicle was holding valid license and the vehicle in question was insured with the respondent No. 2 - Company and the insurance policy was in force as on the date of the accident.

The appellant - Insurance Company filed objections before the Commissioner for Workmen''s Compensation and contended that the vehicle bearing No. 24/2133 owned by the 1st respondent was not insured with the Insurance Company at the time of the accident and also denied the fact that 1st respondent was not the owner of the vehicle which met with the accident and also contended that it appears that in order to shift the liability, the owner of the vehicle and claimants have colluded together, therefore, denied the claim of the claimants in the claim petition.

Based on the pleadings the Labour Court framed the following issues:-

"1. Whether the applicants in WCA.SR. Nos. 102, 103 and 104/2006 could be termed as ''workman'' under the provisions of Section 2(1)(n) of the Workmen''s Compensation Act, 1923?

If so, Whether the accident in question occurred during the course of employment?

What was the age of the applicants at the time when the accident occurred?

What was the wages of the applicants at the time when the accident occurred?

Whether the applicants are eligible for compensation as sought for in the application?

Whether the applicants are entitled to get the benefit of interest and fine?

Which of the respondent is liable to pay the compensation & interest to the applicants?

What order? "

In order to establish their claim the claimants were examined as PWs.1 to 3 and one Dr. Ramesh V. Patil, Orthopeadician has been examined on their behalf and marked Exs.P1 to P8 in WCA.SR. No. 102/2006 and marked Exs.P1 to P20 in case WCA.SR. No. 103/2006 & 104/2006.

The Insurance Company examined one A.P. Kulkarni, Administrative Officer, Divisional Manager, National Insurance Company, Division Office, Ramdev Galli, Belgaum and marked the documents as Exs.R-1 and R-2.

After considering the entire material on record the Commissioner for Workmen''s Compensation has come to the conclusion that the claimants have proved that they are workmen as contemplated under Section 2(1)(n) of the Workmen''s Compensation Act, 1923 and the accident occurred during the course of their employment. As on the date of the accident the claimants were all aged about 45 years, 35 years and 55 years respectively and that they were earning Rs. 2,200/- per month and therefore, they are entitled to compensation. Accordingly the Commissioner has awarded compensation of Rs. 1,11,830/-, Rs. 78,035/- and Rs. 71,575/- respectively. Against the said order passed by the Commissioner for Workmen''s Compensation the present appeals are filed by the Insurance Company.

The claimants have not filed any appeal for enhancement of compensation.

I have heard the learned counsel for the parties to the lis.

Smt. Aruna R. Deshpande, learned counsel for the appellant - Insurance Company has vehemently contended that the compensation awarded by the Commissioner for Workmen''s Compensation in favour of the claimants is erroneous, not based on the pleadings, evidence and documents, hence liable to be set aside. She further contended that the Commissioner for Workmen''s Compensation has not appreciated the defence of the appellant and has not properly looked into various documents produced by them and erred in holding that the Insurance Company is liable to pay compensation. She further contended that the vehicle in question was carrying 20 to 25 people proceeding to a marriage function. The complaint and FIR produced by the claimants in proof of their claim does indicate that all the claimants were proceeding as passengers in the vehicle and there is no evidence to show that they were proceeding in the vehicle during the course of their employment as coolies. Therefore she sought to set aside the impugned judgment and award passed by the Commissioner for Workmen''s Compensation.

Per contra, Sri. Sanjay Katageri, learned counsel for respondent No. 1/claimant and counsel for other respondents sought to justify the impugned judgment and award passed by the Commissioner for Workmen''s Compensation.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is the case of the claimants before the Labour Commissioner that they were coolies working with the 2nd respondent owner of TATA 407 Goods Tempo No. KA-24/2133 and as per his directions they were proceeding towards Mahalingapur on 13.07.2005 and due to the rash and negligent driving by the driver of the vehicle, the vehicle fell down and all the 3 persons sustained injuries. In support of their claim, the claimants were examined as PW.1 to PW.3 and produced documents Exs.P1 to P20 and also examined the Doctor. It is the specific case of the appellant - Insurance Company that they are not coolies with the 2nd respondent, but about 25 to 30 people were going for marriage function. Therefore, they are not entitled to any compensation.

It is not in dispute that the accident occurred on 13.7.2005 and the owner of the vehicle has filed objections before the Tribunal and specifically admitted in paragraphs 2 of the objections that the claimants were working as coolies under him in the goods tempo bearing No. KA 24/2133 which was owned by him and doing work in different places and the claimants used to go in the vehicle as per his directions and they were paid salary of Rs. 3,000/- per month and bata of Rs. 30/- per day and he has admitted deemed jural relationship of the employees between himself and coolies.

The Insurance company who was 2nd respondent before the Commissioner for Workmen''s Compensation filed the objections and denied that the vehicle involved in the accident was not insured with the Insurance Company and the insurance was not in force at the time of accident and also contended that to saddle the liability on the Insurance Company, the owner of the vehicle together with the claimants have filed false case. The officer of the Insurance Company is examined as RW. 1 contrary to the objections filed, he has stated in his evidence that the vehicle bearing No. KA-24/2133 the goods tempo was insured with the Insurance Company under a package policy commencing from 23.01.2005 to 22.01.2006 and the policy was in force. The suggestion made on behalf of the Insurance Company to the claimants that they are not coolies under the 2nd respondent is denied. Admittedly the appellant - Insurance Company has not summoned the owner of the vehicle to disprove the claim of the claimants that they are not coolies under 2nd respondent. The Commissioner for Workmen''s Compensation while considering all the material on record, recorded a specific finding that the appellant has not produced any investigation report.

It is also not in dispute that the Insurance Company has not disputed the submissions made by the claimants before the Police that they are the coolies under the 2nd respondent as per Ex.P.3, 13 and 19.

The respondents - claimants, who were examined as PWs. 1 to 3 have specifically stated on oath that they are coolies under the 2nd respondent working in the vehicle of the 2nd respondent bearing No. KA-24/2133 and they were earning Rs. 4,000/- per month and bata of Rs. 100/- per day and also denied the suggestion that they are not coolies and they were travelling in the goods vehicle to attend a marriage party. Nothing contra has been elicited in the cross-examination of PWs.1 to 3.

The appellant - Insurance Company has not produced any contra material to disprove that the claimants/workmen are not coolies under the 2nd respondent in the vehicle bearing No. KA-24/2133 owned by the 2nd respondent.

Though the claimants claimed they were earning salary of Rs. 4,000/- per month, the owner deposed that he was paying salary of Rs. 3,000/- per month and Rs. 30/- bata per day. The Labour Commissioner taking into consideration of the Notification No. KLE 34 LMW 1998 dated 12.06.2006 and taking into consideration the fact that the accident occurred on 13.07.2005 has fixed the minimum wages in terms of the provisions of Workmen''s Compensation (Amendment) 2000 No. 46:2000 Dt. 8.12.2000 and under the provisions of Section 4(A)(3) of the Act has fixed Rs. 2,000/- per month as their salary. The Labour Commissioner also recorded a finding that as per the evidence of the Doctor, the 1st claimant in MVC No. 102/2006 has sustained fracture of middle 3rd right clavicle, fracture of 9th rib right side and contusion over back and the petitioner was complaining pain in the right side of the chest and right clavicle as per Ex.P.8 - wound certificate and recorded a finding on the basis of the documents produced at Ex.P6 - Medical certificate Ex.P7 -Discharge certificate as per the evidence of the Doctor and Ex.P8 - Disability certificate, Ex.P.10 - X ray report has come to the conclusion that the claimant in MVC WCA SR. No. 102/2006 has sustained 50% disability towards loss of income in terms of the provisions of Section 2(1)(4) of Workmen''s Compensation Act, 1923.

The Labour Commissioner further recorded a finding in respect of claimant in WCA. SR. No. 103/2006 that due to the accident he has sustained fracture of lower end of right radius and contusion over back and also sustained injuries all over the body and taking into consideration the evidence of the Doctor as per Ex.P.11 - the MLC clearly indicates that the claimant sustained grievous injuries. As per the evidence of the Doctor and the claimant it clearly indicates that the 2nd respondent claimant has sustained 30% disability to the whole body in terms of Ex.P.14. Accordingly, held that the claimant has sustained disability towards loss of income by about 30% in terms of the provisions of Section 2(1)(4) of the Act.

The Commissioner for Workmen''s Compensation also recorded a finding that while considering WCA. SR. No. 104/2006 the 3rd respondent - claimant has sustained fracture of grater tuberosity of left humorous, CLW over left thumb and the petitioner complains of pain in the left shoulder and sustained injuries all over the body. The Commissioner also recorded a finding in terms of the documents produced by the Doctor as per Ex.P.16 - MLC, Ex.P17 - Discharge summary and Ex.P.18 - the disability certificate that the claimant was complaining of pain in the left shoulder. Based on the evidence of the Doctor and in terms of the wound certificate produced at Ex.P.18 the Commissioner for Workmen''s Compensation came to the conclusion that the petitioner sustained loss of income in terms of Section 2(1)(4) of the Act.

Accordingly, exercising his powers under the provisions of Section 4(1) of the Workmen''s Compensation Act 1923, awarded compensation of a sum of Rs. 1,11,830/- in WCA. SR. No. 102/2006, a sum of Rs. 78,035/- in WCA. SR. No. 103/2006 and a sum of Rs. 71,575/- in WCA. SR. No. 104/2006. Considering the entire material on record the Commissioner has passed common the impugned judgment and award. The same is in accordance with cogent evidence on record. The Insurance Company has not produced any contra material to disprove the claim of the claimants or produced any documentary evidence contrary to the records. In the absence of the same, the impugned judgment and award passed by the Labour Commissioner exercising his power under the provisions of Section 4(1) of the Act is in accordance with law and the same is just and proper & therefore, the contentions raised by the learned counsel for the appellant cannot be accepted. The appellant has not made out any case for interference under the provisions of Section 30(1) of the Act in the present appeal. Accordingly all the appeals are dismissed.

The amount in deposit be transferred to the jurisdictional Civil Court/Commissioner of Workmen''s Compensation immediately.