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Judgment
B. Manohar
The National Insurance Company filed this appeal challenging the order dated 6-10-2010 made in WCA/CR-27/2008 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Mangalore. The facts of the case are as follows:
The first respondent filed a claim petition before the Commissioner for Workmen''s Compensation, Mangalore contending that he was working as a driver in an autorickshaw bearing CRX 5609 belonging to the second respondent. On 13-5-2008, on the instructions of the second respondent he was proceeding from Bikarnakatte to Hampanakatte. In the course of avoiding the potholes in the road, the said autorickshaw turtled down and met with an accident. The claimant has sustained injuries to the right hand and other injuries to his body. He was immediately shifted to the Father Mullar''s Hospital at Mangalore and thereafter he was shifted to City Hospital for further treatment. He has contended that he was getting salary of Rs. 4,000/- p.m. Due to the accident and fracture of the right clavicle, he cannot drive the autorickshaw and sought for compensation of Rs. 3,00,000/- with 12% interest.
In pursuance to the notice issued by the Commissioner for Workmen''s Compensation, though the owner of the vehicle entered appearance, he has not filed any objections to the claim petition. The Insurer filed written statement contending that there is no relationship of master and servant between the claimant and owner of the vehicle and no document has been produced to show that the owner is paying salary of Rs. 4,000/- p.m. Since the accident occurred due to the negligence on the part of the claimant, he is not entitled for any compensation and sought for dismissal of the claim petition.
On the basis of the pleadings of the parties, the Commissioner for Workmen''s Compensation framed necessary issues.
The claimant in order to prove his case examined himself as P.W.1 and got marked the documents as Ex.P1 to Ex.P8. He also examined Dr. Sudhakar, Orthopedic Surgeon, Wenlock Hospital, Mangalore as P.W.2. Nobody was examined on behalf of the Insurer.
The claimant in his evidence has deposed that due to the accident that occurred on 13-5-2008, he has sustained injuries to his right hand. He has undergone operations in the Father Mullar''s Hospital and thereafter, he has taken treatment in the City Hospital. The FIR, the Statement, Spot Mahazar, Wound Certificate, Motor Vehicle Inspector''s report have been marked as Ex.P1 to Ex.P5. He was getting salary of Rs. 4,000/- p.m. and he was aged about 34 years at the time of the accident. He was cross-examined by the advocate for the Insurer. In the cross-examination he stated that he was working as a driver in the autorickshaw and getting salary of Rs. 4,000/- p.m. Nothing contrary has been elicited in the cross-examination. Dr. Sudhakar. Orthopedic Surgeon who issued the Disability Certificate, in his evidence has deposed that in view of mal-union of the fractured surgical neck humerus. There is restricted movement of right shoulder. In view of the said injuries, the claimant cannot drive the vehicle. He assessed the loss of earning capacity to an extent of 25%. The Doctor was cross-examined by the Insurer. In the cross-examination he deposed that on the basis of the guidelines issued by the State Government regarding issuance of Disability Certificate, he has issued disability certificate.
The Commissioner on the basis of the oral and documentary evidence let in by the parties and after considering the documents and Police report held that the claimant has sustained injuries in the road traffic accident that occurred on 13-5-2008 in which he has sustained the fracture of right hand and shoulder. The claimant is the workman under the second respondent, there exists the relationship of master and servant between the claimant and owner of the vehicle, the accident has been occurred out of and during the course of employment, since the autorickshaw is covered by the insurance, the Insurer is liable to pay the compensation. Though the claimant has contended that he was getting salary of Rs. 4,000/- p.m. no document has been produced. The Commissioner taking into consideration the minimum wages being paid to the driver, taken the income of the claimant as Rs. 3,900/- p.m. Dr. Sudhakar, Orthopedic Surgeon in his evidence deposed that due to the fracture of neck humerus, there is restricted movement of right shoulder. There is mal-union of the fractured portion. In view of that, the claimant cannot work as a driver and assessed the loss of earning capacity to an extent of 25%. Taking into consideration the age of the claimant as 34 years, applying the relevant factor, the Commissioner awarded the compensation of Rs. 1,17,971/-(2340 x 201.66 x 25/100) The Insurer, being aggrieved by the order passed by the Commissioner for Workmen''s Compensation awarding compensation in favour of the claimant has filed this appeal.
Sri. L. Srikant Rao, learned counsel appearing for the appellant contended that the order passed by the Commissioner for Workmen''s Compensation is contrary to law. Due to the negligence on the part of the driver himself, he has sustained injuries in the road traffic accident that occurred on 13-5-2008 hence, he is not entitled for any compensation. Further for the fracture of the shoulder bone, the assessment of loss of earning capacity to an extent of 25% is also contrary to law. He also relied upon the Division Bench judgment of this court reported in ILR 2010 KAR 2600 in the case of LOUIS MARTIS V/s LOUIS KORREA AND ANOTHER and contended that the claimant is not entitled for any compensation. He also contended that the rate of interest awarded by the Commissioner is also contrary to law and sought for setting aside the same by allowing the appeal.
On the other hand. Sri. Guruprasad, the learned counsel appearing for the respondent argued in support of the order passed by the Commissioner for Workmen''s Compensation and contended that in order to avoid the potholes in the road, he has taken the vehicle to the left side, due to which the vehicle turtled down and the claimant has sustained injuries. The accident is not due to the negligence on the part of the claimant. In view of the mal-union of shoulder, the Doctor has assessed the loss of earning capacity to an extent of 25%. The Doctor is a competent person to assess the liability. In view of the judgment reported in Smt. Kavitha Dilip Patil and Others Vs. Ananda Gnanu Patil and Others, and sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the oral and documentary evidence let in by the parties 11. The main contention of the appellant in the appeal is that due to the negligent driving of the autorickshaw by the claimant himself he has sustained injuries. Hence, for his negligence, the Insurer cannot be made liable to pay the compensation. Further, the Division Bench of this Court in a judgment reported in ILR 2010 KAR 2600 cited supra held that due to the rash and negligent driving of the driver of the vehicle, he cannot be entitled for the compensation u/s 3(1)(b) of the Workmen''s Compensation Act. Further, the assessment of the loss of earning capacity to an extent of 25% and the rate of interest is also contrary to law.
With regard to the negligence is concerned, the Full Bench of this Court in a judgment reported in Smt. Kavitha Dilip Patil and Others Vs. Ananda Gnanu Patil and Others, , this court has held that:
The question of proving the negligence does not arise under Workmen''s Compensation Act, whereas under the Motor Vehicles Act, negligence and quantum are to be proved. The Insurer has a right to take only statutory defence unless by terms of policy, right to defend the action in the name of the Insurer has been reserved....
It is seen that if the employer of a workman has insured his workman with the Insurance Company and if the workman sustains bodily injury or death in an accident arising in the course of the employment, the work man is entitled for compensation as per the limit and the Insurance Company has only indemnify the employer for the amount.
In view of the Full Bench decision of this Court, the judgment relied upon by the appellant is not applicable to the facts of this case.
With regard to the loss of earning capacity is concerned, as per Section 4(1)(c)(ii) of the Workmen''s Compensation Act, the Competent Medical Practitioner has to assess the disability of the claimant. In the instant case, the Competent Doctor assessed the loss of earning capacity to an extent of 25% due to the mal-union and restricted movement of the shoulder. The Commissioner cannot go beyond the assessment made by the Doctor. Hence, I found that here is no infirmity or irregularity in the order passed by the Commissioner for Workmen''s Compensation. The Commissioner taking into consideration the minimum wages being paid to the driver and also taking the loss of earning capacity to an extent of 25% and applying the relevant factor awarded compensation of Rs 1,17,971/-. The said order cannot be treated as arbitrary or illegal.
Insofar as rate of interest is concerned, the Division Bench of this Court in MFA No. 5333/2007 and other connected matters, in its order dated 15-2-2012 held that the claimant is entitled for interest at the rate of 12% p.a., from 30 days after the judgment in case of injuries. Hence, the order passed by the Commissioner for Workmen''s Compensation is required to be modified insofar as interest is concerned. Accordingly. I pass the following:
ORDER
The appeal is allowed in part. The order passed by the Commissioner for Workmen''s Compensation awarding compensation of Rs. 1,17,971/- is confirmed. However, the claimant is entitled for interest at the rate of 12% p.a. from 30 days after the date of judgment. The amount in deposit be transferred to the Commissioner for Workmen''s Compensation, Mangalore.