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Judgment
K.B.K. Vasuki, J.—The second Respondent/Insurance Company is the Appellant herein. The appeal is filed against the award of compensation of Rs. 24,649/- payable with interest at 12% per annum from the date of the accident till date of deposit by the second Respondent/Insurance Company on behalf of the first Respondent/owner of the vehicle. The claimant has come forward with the claim petition seeking compensation from the first Respondent viz., Thiru.Senthil on the ground that he met with an accident on 13.05.1996 near Aravakurichi on Dindigul to Madurai Main Road, while driving the Van bearing registration No. TN-59-F-4842 owned by the first Respondent and insured with the second Respondent and in the course of such accident arising out of and in the course of his employment, he sustained fracture and permanent disability.
The first Respondent in his counter denied the ownership of the vehicle and jural relationship of master and servant between himself and the claimant, and the factum and manner of the accident and other factual aspects such as age, wages and the percentage of disability as alleged in the petition. Originally the claim petition was filed only against one Senthil, owner of Anjili Gingili Oil arraying him as the sole Respondent and on the basis of the counter statement filed by him that the vehicle is insured with New India Assurance Company Limited, the Insurance company is impleaded as the second Respondent in the claim petition. The New India Assurance Company has, after brought on record, filed its statement of objections denying the factum of the accident, ownership of the vehicle, relationship of master and servant between the claimant and the first Respondent, and the nature of the injuries, age and wages and possession of valid driving licence by the driver of the vehicle at the time of the accident and the entitlement of the Petitioner to claim any compensation.
The Deputy Commissioner of Labour has, on the basis of the pleadings, framed the following four issues; (a)Whether the applicant is a workman under WC Act? (b)If so, whether he sustained injuries in an accident arising out of and in the course of his employment? (c) If yes, quantum of compensation payable? and (d) The person liable to pay the compensation? and has, on the basis of the evidence let in, arrived at answer of the issues in favour of the claimant and has awarded compensation of Rs. 24,649/- payable by the second Respondent on behalf of the first Respondent. Aggrieved against the same, the Insurance Company has come forward with this civil miscellaneous appeal and the same is admitted on the following substantial questions of law:
Whether the relationship of employer and employee between the second Respondent and the first Respondent herein has been established before the learned Commissioner on the part of the first Respondent herein?
Whether the burden of proving in respect of the aforesaid relationship could be shifted upon the second Respondent herein by the learned Deputy Commissioner?
Whether the Appellant herein could be made liable when there was No. contract of insurance in respect of the subject vehicle involved in the accident between the Appellant and the second Respondent herein especially when the R.C.Book for the vehicle TN 59 F/4842 filed and marked as Ex.R5 clearly establishesthatthesecondRespondenthereinwasnottheowner?
Whether the compensation awarded by the learned Deputy Commissioner to a sum of Rs. 24,649/- in favour of the first Respondent herein who is said to have suffered non-schedule injuries is in accordance with provisions of Section 4(1)(c)(ii) read with explanation II and Section 20(3) of the W.C.Act,1923?
Whether the learned Deputy Commissioner of Labour has jurisdiction tomaketheAppellanthereinalso liabletopayinterestattherate of12% p.m. from the date of filing of the claim application on the award amount in the absence of any contract to pay the interest on the award amount between the Appellant and the second Respondent herein under the terms and conditions of thepolicy?
Whether the claim will lie when there is a specific denial of the accidentitselfbythesecondRespondentherein?
It is contended by the learned Counsel for the Appellant/Insurance Company that the trial Court has grossly erred in awarding the compensation without going in detail into the objections raised on the side of both the Respondents 1 and 2 denying the factum of the accident and master and servant relationship between the claimant and the first Respondent, which is the basis for the entitlement of the Petitioner to claim any compensation from the Respondents 1 and 2. It is sought to be argued by the learned Counsel for the Appellant that the findings rendered by the Commissioner are based on No. evidence. The learned Counsel for the Appellant also sought to question the correctness of the award on the ground that the Commissioner is not empowered to suo motu assess the disability without having the assessment of permanent disability and loss of earning capacity by the expert i.e., the qualified medical practitioner, as per Section 4(1)(c)(ii) read with explanation II of the Workmen''s Compensation Act. The learned Counsel for the Appellant has also questioned the rate of interest of 12% per annum adopted by the Commissioner in the absence of any specific clause of payment of interest and by questioning the rate of interest as exorbitant.
Though the first Respondent/claimant is duly served with notice in C.M.A. and the compensation awarded in his favour is seriously questioned on various grounds in this appeal, the first Respondent/claimant has not chosen to come and contest the appeal. The first Respondent, who is one of the Directors of the vehicle owned company, duly entered appearance through his counsel and contested the matter in support of the correctness of the award than in support of the grounds raised in the memorandum of appeal by his insurer.
I have considered the submissions made before this Court and perused the records available herein.
As already referred to both the Respondents 1 and 2 have in their respective counter specifically denied the factum of the occurrence, ownership of the vehicle and the master and servant relationship between the claimant and the first Respondent. Unless and otherwise the above material aspects are proved by the claimant, the question of proceeding to assess the compensation if any due to the claimant does not at all arise.
In this case, the claimant has, in support of his contention examined himself and his witnesses as PW1 & PW2 and has produced Exs.A1 to A5 documents. The first Respondent has examined himself and his manager as RW1 and RW2 and has produced Exs.R1 to R6 documents. The second Respondent/Insurance Company has examined two witnesses as RW1 & RW2, who is the independent investigator engaged by the Insurance Company to go into the genuineness of the claim and has produced four documents as Exs.R2/1 to R2/4.
The appreciation of the entire oral and documentary evidence would reveal that except the oral evidence of PW1, No. other document is produced to prove the factum of the accident. In this case, admittedly No. police complaint is given and naturally No. FIR is available. PW2 is not an eyewitness of the accident and according to him, he went to the accident spot much after the accident for removal of the vehicle and for sending the same for repairing work. The vehicle was not produced for inspection by the Motor Vehicle Inspector. There is absolutely No. documentary evidence to prove the damages caused to the vehicle. Though Delivery Certificate issued by M/S. AR.A.S Auto (P) Limited, Madurai for releasing the vehicle after having duly repaired the same is produced as Ex.P5, the same can be at the best relied upon to show that the vehicle was left with automobile dealer and engineers for certain repairing work and was taken delivery on 13.02.1997. The above certificate will in No. way prove that the damages was caused to the vehicle in the course of the accident occurred on such date, time and place and in the manner as spoken by the claimant. The other documents produced before this Court on the side of the Petitioner/ claimant are Exs.A2 and A3 the medical records for the treatment undergone by him, wherein it is not specifically referred to that the patient was injured in the road traffic accident. As rightly argued by the learned Counsel for the Appellant, the oral and documentary evidence referred to above, are not sufficient enough to probabilize the claimant theory regarding the factum of the accident.
The next aspect to be considered is the ownership of the vehicle involved in the accident. The vehicle said to be involved in the so called accident is TN-59-F-4842 and the claimant was the driver of the vehicle during the relevant point of time. However Ex.R5, Registration Certificate of the vehicle produced on the side of the first Respondent would reveal that the same stands in the name of one Nataraja Oil Mills Private Limited having the first Respondent Senthil and Ors. as its Directors. As rightly pointed out by the learned Counsel for the Appellant herein, Ex.R2/1, Insurance Policy stands in the name of the Nataraja Oil Mills Private Limited and not in the individual name of the first Respondent. Unless and otherwise, it is shown that the first Respondent is authorized to represent Nataraja Oil Mills Private Limited in the day-to-day affairs of the company, the first Respondent cannot be treated as the owner of the vehicle. In that event, there is No. employer and employee relationship between the parties and No. contract of Insurance between the first Respondent and the New India Assurance Company, who are arrayed as the Respondents 1 and 2. The proper party to be impleaded is Nataraja Oil Mills Private Limited represented by its authorised person i.e., either Managing Director or either of the directors and the claim made against the first Respondent in his individual capacity is not maintainable and in the absence of any policy of insurance coverage between the first Respondent and the second Respondent, the second Respondent/ Insurance Company cannot be fastened with any liability to indemnify the first Respondent who is not the owner of the vehicle which is insured with the second Respondent.
The next aspect seriously argued before this Court is the assessment of permanent disability and the loss of earning capacity by the Commissioner without the assistance of the medically qualified practitioner. It is not in dispute that the injuries sustained by the claimant are non-scheduled injuries. If that is so, the procedure to be adopted for assessing the disability is Section 4(1)(c)(ii) read with Explanation II of the Act which reads as follows:
Amount of Compensation:
(1)Subject to the provisions of this Act, the amount of compensation shall be as follows, namely: (a).. (b).. (c)(i).. (ii) in the case of an injury nor specified in schedule I, such percentage of the compensation payable in the case of the permanent total disablement as i.e., proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.
Explanation II. In assessing the loss of earning capacity for the purpose of Sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
The permanent total disablement, as per which the compensation can be fixed, is as per the percentage of permanent disability and proportionate loss of earning capacity as assessed by the qualified medical practitioner. It is well laid down that the commissioner is not authorized to suo motu assess the same without the assistance of and without the assessment of the medical practitioner as the basis and the Commissioner is competent to assess the same on his own only on the basis of the facts and circumstances involved and oral and documentary evidence let in the light of the medical evidence and in the event of any dispute raised about the assessment made by the qualified medical practitioner. Whereas in the present case, the Commissioner has proceeded to assess the permanent disability and the loss of earning capacity on his own on the basis of Ex.A4, treatment record, issued by Bhagavathi Hospital, Madurai without any doctor being examined and without any disability certificate issued and assessment of loss of earning capacity by the qualified Doctor. The same is, as rightly pointed out by the learned Counsel for the Appellant, totally in violation of the procedure laid down u/s 4(1)(ii) read with Explanation II of the Workmen''s Compensation Act and such assessment and the award of compensation based on such assessment cannot be hence legally and factually allowed to be sustained and No. liability can be fastened on the Insurance Company on the basis of such finding and the award is hence liable to be set aside.
In the result, the appeal is allowed by setting aside the award dated 10.06.2003 made in W.C. No. 201 of 1998 by the Deputy Commissioner of Labour for Workmen Compensation, Madurai. Consequently, connected miscellaneous petition is closed. No. costs.