Reliance General Insurance Co. Ltd vs Resham Singh & Anr

Najmi Waziri, J

FAO 366/2014 & CM. Appl. 18957/2014

This appeal impugns an Award dated 21.08.2014 whereby the Employees Compensation Commissioner has directed payment of compensation to

respondent no.1.

Respondent no.1 had stated that he was employed by respondent no.2 Mr. Tilak Raj @ Kale, as a second driver, on the latterâ€s truck bearing No.

HR-38-K-7145, which was insured with the appellant-insurance company. He claims to have met with an accident on 06.10.2010 during the course of

his employment. He had claimed that on the said date while, on a business trip, when the vehicle reached near Bijapur in Karnataka, he got off from

the vehicle for a regular check of the tyres “then his left foot was caught underneath the one of the tyre, when vehicle suddenly started moving.

The first driver left the place with the vehicle. The applicant became unconscious and he was taken to the Distt. Hospital Bijapur. He was got

admitted in the hospital and remained admitted for the period 06.10.2010 to 10.10.2010. The claimant could not continue his treatment in this hospital

as he was running short of money. The applicant asked R-1 for money but he flatly refused to take care of his medical need and therefore, the

claimant had to leave the hospital without further treatment. After leaving the hospital, he bagged (sic) for lift and he reached Taboorni hotel and

remained there for about a week. From Taboorni he reached Fauji Punjabi Dhaba, Ahmednagar and one gentleman got him admitted in General

Hospital, Ahmednagar, Maharashtra and remained admitted in the hospital for a period of 04.03.2011 to 09.04.2011. After this accident, the applicant

was not in a position to do any work for his capacity and has become 100% disabled for the purpose of his employment as a driver as his foot has

been amputated….â€​

The claimant contended that he was not in a position to continue working as a driver as he had become 100% disabled, on account of amputation of

his left foot. Consequently, the vehicle being insured with the appellant, the appellant was liable for indemnification for the said loss.

Respondent no.2, Mr. Tilak Raj-the owner of the vehicle, had disputed that the accident took place on 06.10.2010. However, he admits that he had

received information of an accident having occurred on 29.12.2010, in which the claimant claimed to have suffered physical injuries, on a trip to

Karnataka in course of discharge of his duties. He further admitted that the salary of the claimant was fixed by the first driver at Rs. 5500/- per

month, plus Rs. 100 daily allowance for food, and not at Rs. 6500/- per month plus Rs. 100 daily allowance for food, as claimed by the claimant.

Respondent no.2 went on to say that if the Court finds that the claimant is entitled to compensation, the same should be paid by the appellant- the

insurance company.

The appellant - insurance company had disputed the claim on various grounds, such as: (i) the claim is a collusive petition between the claimant and

the alleged employer, (ii) the claimant was not employed as a driver by Respondent no. 2, (iii) the manner of the accident was unbelievable, (iv) the

claimant was a resident of Karnataka, (v) the medical certificate (Ex. AW1/5) could not be relied upon as it was manipulated and fraudulent.

Referring to the evidence, the impugned order accepted the claimantâ€s version that he had lost his driving license during the accident and/or

treatment at the hospital. That due to trauma he could not remember the date of accident. Earlier, the claimant had mentioned the date of the accident

as 29.12.2010, but the medical record produced (Exhibit as AW1/1) showed that he was admitted to a government hospital for treatment in Karnataka

for a foot injury. It also showed records from General Hospital, Ahmednagar of his further treatment. It also refers to a statement given, by way of

affidavit, of one Mr. Suresh Kumar Sah, confirming the date of accident and admission of the claimant for treatment in a government hospital in

Karnataka. It further held that earlier the claim was withdrawn on technical grounds, with liberty to file a fresh one as there was some confusion

apropos facts relating to the claim.

The contentions of the appellant were summarily dismissed as being based on presumption. On the basis of the above, the impugned order

concluded that the claimant had proved that the accident had occurred during the course of his employment with respondent no.2. It then went on to

consider the disability certificate issued by Dr. K.B. Gupta, Certifying Surgeon, North-West Distt., Govt. of NCT of Delhi, who had concluded that the

claimant had lost his earning capacity as a driver, a function he was capable of discharging at the time of the accident. The said doctor further opined

that the claimant had become 100% disabled for the purpose of his employment as a driver as his left foot was amputated and he could not move

without help, reducing his earning capacity, and therefore, he was entitled to 100% permanent disability compensation. The age of the claimant was

taken based on a medical certificate issued by the aforesaid Certifying Surgeon since a dispute had been raised regarding the age of the claimant.

Furthermore, as there was no proof of the wages as claimed i.e. at Rs. 9500/- (Rs. 6500 + Rs. 3000), wages were restricted to Rs. 8000/- as per the

Act, and an award of Rs. 8,84,016/- was passed in favour of the claimant, to be paid within 30 days by way of a Demand Draft failing which the same

would be recovered by way of land revenue under Section 31 of the Act.

The appellant has impugned the Award on various grounds, inter alia, that there was no evidence to establish that the accident took place on

06.10.2010 especially when the complainant himself written to the police of date of the accident as 29.12.2010. No FIR was registered by the police

of either date of accident. Interestingly, no complaint was lodged by the complainant immediately after the accident took place, nor did the alleged

employer Mr. Tilak Raj ever intimate the police about the alleged accident on 06.10.2010 or on 29.12.2010. Mr. Tilak Raj himself admits that the

accident took place on 29.12.2010 and not on 06.10.2010. It stands to reason that if the first driver had driven away the vehicle after having injured the

claimant, it was expected that he would inform either the police or the employer on the said date or on any other date immediately thereafter; there is

no chain of documents showing medical treatment of the claimant from 06.10.2010 to 09.04.2011, nor is there any evidence of surgical amputation of

his left foot resulting in his alleged 100% disability. The report of Dr. K.B. Gupta records that the injury of the claimant is an “amputated left foot

through tarso-metatarsal joints except fifth toeâ€​, and not of his entire foot.

According to the appellant as per Entry 24 of Part II of Schedule I of the Employees†Compensation Act 1923, compensation would be only 20%

of the loss of earning capacity, for loss of all toes of one foot through the metatarsophalangeal joint. Therefore, there was no reason for the said

doctor to conclude that the claimant had suffered 100% disability apropos his earning capacity. He was only required to assess the extent of physical

disability and not about the loss of earning capacity. The appellant contended that while in the claim petition the claimant has claimed himself to be a

trained driver, possessing a license for heavy motor vehicle, the Case-Sheet prepared by the District Hospital Bijapur, Karnataka records his

occupation as “Coolieâ€. In the absence of the claimant producing a driving license, his claim of being a licensed driver could not be accepted, and

therefore, the impugned order has erred in this regard. Likewise, the impugned order also erred in taking an arbitrary figure of Rs. 8,000/- as the

salary of the claimant without reference to any evidence on record.

The appellant also argues that the affidavit in evidence of Mr. Suresh Kumar Sah dated 16.04.2013 is highly suspect and unbelievable because his

so called Investigation Report was filed 11 days after filing of the second claim petition on 05.04.2013. Interestingly, the address of the said

Investigating Officer is the same as the address of the counsel for the claimant, which shows evidence has been procured.

In view of the above, it is argued that the impugned order has erred both in fact and law and the claim petition ought to have been set aside.

The learned counsel for the respondent refutes the aforesaid argument and contends that: firstly a substantial question of law is to be framed for

disposal of the appeal, and secondly, Sections 32B and 32C of the Insurance Act, 1938 would be applicable. He relies upon the judgment in the case

of Chiman Surakhia Vasva vs Ahmed Musa Ustad & Ors. 1987 ACJ 161, wherein it was held that strict principles of the Evidence Act would not be

applicable apropos proof of employment of a workman in an unorganized sector such as one engaged in lifting stones and filling the same in the truck.

He also contends that under Sections 32B & 32C of the Insurance Act, 1938 every insurer is required to undertake percentages of life insurance

business and general insurance business in the rural and social sectors, as has been specified in the Official Gazette of IRDA and further discharge

their obligations specified under section 32B to provide life insurance or general insurance policies to the persons residing in the rural sector, workers

in the unorganized or informal sector or for economically vulnerable or backward classes of the society and other categories of persons as may be

specified by the Authority and such insurance policies shall include insurance for crops. Be that as it may, the Court is unable to see how the

reference to Section 32B and 32C of the Insurance Act, 1938 has any relevance to the facts of this case.

The issue to be determined in this appeal is whether the impugned order ignored the allegations of connivance between the claimant and his

alleged employer, based on a fraudulent and manipulated disability certificate and whether the accident happened on the date mentioned.

Apart from, (i) the confirmation by the alleged employer Mr. Tilak Raj, that the claimant was employed by him as a driver for which he was being

paid Rs. 5500 per month plus Rs. 100 per day as allowance, there is nothing on record, not even a ledger or any account book which may have been

maintained by him, to show payments to the claimant, (ii) the date on which the claimant was employed is not specified, (iii) copy of the alleged driving

licence for HMV is neither produced by the employer nor by the claimant. Interestingly, according to Mr. Tilak Raj, the claimantâ€s salary of Rs.

5500/-was fixed by the first driver and not by him. It is odd that the salary of an employee is fixed by another employee, (iv) the various business trips

that the claimant undertook in discharge of his employment, have not been disclosed; therefore, in the aforesaid circumstances, the acceptance of

employment of the claimant as a driver by Mr. Tilak Raj is suspect, (v) the name of the first driver too is not mentioned in his reply, (vi) it is also not

explained as to why Mr. Tilak Raj did not ask the first driver of the vehicle why he drove away from the dhaba without his colleague â€" the second

driver â€" after crushing the latterâ€s foot under the truck tyre. Such an enquiry from Mr. Tilak Raj would be natural, at least, after he received

intimation of the accident dated 29.12.2010. Nor is there any explanation by Mr. Tilak Raj as to what he did apropos the non-reporting for duty by the

claimant after 06.10.2010.

In his cross-examination the Legal Executive of the appellant company had disputed the date of occurrence as 06.10.2010 and instead stated it to

be 29.12.2010, on the basis of the letter of the claimant sent to the police concerned. The aforesaid letter by the claimant was sent by way of speed

post dated 11.02.2012 to the Superintendent of Police, Bijapur stating, inter alia, that he had suffered injury at about 9.00 p.m. near Bijapur, Karnataka

when he got off the vehicle to check its tyres etc. and his left foot was caught underneath the tyre of the vehicle when it was started instantly by the

first driver, who left the place with the vehicle. He claimed to have been admitted for a long period in a Govt. Hospital etc.

The Court would note that the Case Sheet issued by the District Hospital, Bijapur on 06.10.2010 “shows soft tissue injury to the left footâ€

thereafter the doctorâ€s scribble is illegible. The claimantâ€s occupation is recorded as “coolie†and the Court cannot read it as “driverâ€. In

the column “Physical Signs and Conditions on Admission†the Duty Surgeon has recorded that while it was a history of road traffic accident, the

claimant was “alcoholic intoxicated (sic)â€. He was prescribed medicines, x-ray, etc. In the progress note (reverse side of page 56/c of the LCR),

the doctor ticked on “Not Immediate/ Not Urgent/ Routine Onlyâ€. A note is addressed to the orthopedic doctor that the patient is a case of RTA

with crush injuries to the left foot and the patient may, therefore, be examined. Thereafter, it is noted that there is a crush injury to the left foot with

injuries to three toes with lacerated wounds etc. (report is not wholly legible).

The General Hospital, Ahmednagar has issued a Discharge Card showing the petitionerâ€s date of admission as 04.03.2011 and his date of

discharge as 09.04.2011 for “non-healing ulcer on left footâ€. Interestingly, the period of medication between 10.10.2010 and 04.03.2011,

approximately five months, is unexplained, nor is it shown anywhere that his right foot as claimed was amputated as a result of the injury suffered in

the alleged accident. The so-called Investigation Report dated 16.04.2013 filed by Mr. Suresh Kumar Sah is to the effect that (i) he had gone to

Bijapur, Karnataka on 04.02.2013 in relation to the case of the claimant where he assessed the situation; (ii) that about 10 km before Solapur-Bijapur

Highway Mr. Resham Singh had suffered an accident near Bhutna Gaon; (iii) that the accident happened in front of Jammu-Kashmir Dhaba whose

owner, Mr. Girdhari Lal and another witness Mr. Prem Singh, also has a barber shop, remember the accident, and these two had called the police,

who took the claimant to a government dispensary and got him admitted there. At his request, Mr. Prem Singh took him to the dispensary where the

MRO Mr. H.S. Begampalli met him and all details of the claimant were shown to him to the effect that he had been admitted at 8.00 p.m. on

06.10.2010 and was released on 2.10 p.m. on 10.10.2010. He was given a photocopy of all the relevant records.

These are a few but important factors which do not corroborate with each other thus rendering the claimantâ€s story unconvincing: (i) that he was

found by the attending doctor to be intoxicated by alcohol; (ii) that he was semi-conscious; (iii) that his case was not an “urgent†one and it was

only a routine case, albeit he may have been shifted to the trauma ward, his discharge from the hospital on 10.10.2010 does not record his medical

condition at that time; (iv) that the X-Ray report is not attached nor are the other reports regarding his blood test, etc. (v) that the report and the

treatment at the General Hospital, Ahmednagar, is regarding a non-healing ulcer and it does not record any history of road accident trauma; (vi) that

there is an unexplained lapse of five months between the first treatment from 06.10.2010 to 10.10.2010 and the second treatment from 04.03.2011 to

09.04.2011. Interestingly, if the accident took place in the year 2010, there is no reason why the claimant would not have approached anybody in the

interim to claim any relief from his employer Mr. Tilak Raj apropos his dire financial state, as he claims to have been in, or apropos his treatment or

amputation of his left foot; (vii) that the amputation was only of four toes of his left foot and not an amputation of the foot itself; (viii) that the claim

also does not mention the period of his employment or from when it began with Mr. Tilak Raj; (ix) as to why there is a delay of almost one and a half

years in making the complaint to the police about the injury and about the first driver having run away after having injured him; (x) there is also no

reference to which police official had taken him to the government hospital. Ordinarily, if he had been taken by a policeman to the government

hospital, the hospital would have recorded it as a Medico-Legal Case (MLC) and corollary police proceedings would have ensued. Hence, the

statement of Mr. Suresh Kumar Sah in his evidence affidavit dated 16.04.2013, that the complainant had been taken to the government dispensary as

stated by Mr. Prem Singh â€" the barber, remains unverified.

What emanates from the preceding discussions is that there is no link between the first treatment of the claimant at Bijapur government hospital in

Karnataka, and the second treatment for a “non-healing ulcer in left footâ€; there is also nothing on record to show that the permanent disability

was on account of the injury dated 06.10.2010; there is no proof of the amputation. Even assuming that the amputation was a result of the sore, the

response of Mr. Tilak Raj-the alleged employer, is suspect, as discussed in the preceding paragraphs. It cannot be concluded that the claimant was the

employee of the owner of the insured vehicle, which is stated to have crushed the foot of the claimant. Resultantly, (i) the accident by the insured

vehicle is not proven; (ii) permanent injury as result of that accident is not established, (iii) nor is the employment of the claimant with the owner of the

vehicle. The medical record at Bijapur hospital shows the claimantâ€s occupation as “coolie†and not as a driver. A case for compensation is not

made out. The impugned order has erred for the aforesaid reasons. It cannot be sustained. It is, accordingly, set aside. The appeal is allowed and

disposed off.