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Judgment
B. Manohar, J—The appellant Insurance Company filed these appeals challenging the common judgment and order dated 5.3.2009 passed in W.C. Nos. 578/2006, 579/2006 and 580/2006 by the Labour Officer and Commissioner for Workmen Compensation, Sub-Division-II, Bellary (hereinafter referred to as ''the WCC for short).
Since the common judgment and order passed by the WCC is challenged by the appellant in these three appeals, all the appeals are clubbed together and disposed of by this common judgment.
The 1st respondent in MFA Nos. 22312/2009 and 22313/2009 were working as Hamalis and the 1st respondent in MFA 22311/2009 was working as a cleaner in a lorry bearing registration No. KA-34/4548 belonging to the 2nd respondent herein. On 22.11.2006, on the instructions of the owner of the vehicle, after loading fertilizers, when the lorry was proceeding towards Bandarahatti village for the purpose of unloading, due to rash and negligent driving of the said lorry by its driver, it had dashed against the road side big stone and turned turtle. Due to the impact, cleaner and hamalis sustained grievous injuries. Initially they were shifted to Primary Health Centre, Kurugodu and thereafter, they have taken treatment at private hospitals. The police have registered the case in Crime No. 185/2006 against the driver of the said lorry. It was claimed that the owner of the vehicle was paying a sum of Rs. 250/- per day to the Hamali and a sum of Rs. 4000/- pm and Rs. 50/- batta to the cleaner. In view of the fractures sustained by the claimants, they cannot work as hamalis and coolie in future. The accident occurred during the course and out of employment and hence, the claimants filed claim petition before the WCC praying for compensation.
In pursuance of the notice issued by the WCC, the owner of the vehicle entered appearance and filed statement of objections contending that the claimants were working as hamalis and cleaner and he was paying a sum of Rs. 100/- per day to the hamalis and Rs. 3,000/- p.m. and batta of Rs. 50/- per day to the cleaner. Since the accident occurred during the course and out of employment, the claimant is entitled for compensation and since the vehicle is covered by the insurance policy, the insurer has to compensate the claimant and sought for dismissal of the claim petitions, as against the owner of the vehicle.
The Insurance Company filed the statement of objections denying the entire averment made in the claim petitions and also contended that there is no relationship of master and servant between the claimants and owner of the offending vehicle. No document has been produced in this regard. It was contended that the claimants have not sustained injuries in the accident occurred on 22.11.2006 and sought for dismissal of the claim petitions.
The WCC on the basis of the pleadings of the parties, framed necessary issues. The claimants, in order to prove their case, examined themselves as PW1 to PW3 and got marked the documents at Exs. P1 to P11. The doctor who has issued disability certificate was examined as PW2. On behalf of the Insurance Company, one of the officers was examined as RW1 and insurance policy was marked as R1.
The WCC, on the basis of the oral and documentary evidence let in by the parties, taking into consideration the police records and other relevant records, held that the claimants have sustained injuries in the road traffic accident occurred on 22.11.2006 during the course and out of employment and hence, they are entitled for the compensation. With regard to quantum of compensation is concerned, taking into consideration the wound certificates issued by the doctor in Primary Health Centre and also assessment of disability by Dr. Rajesh, held that the claimant in WC 578/2006 has sustained disability to an extent of 40% and claimants in WC 579/2006 and WC 580/2006 have sustained disability to an extent of 35% each. Taking into consideration age of the claimant as 22 years, 28 years and 32 years respectively, and taking into consideration the minimum wages being paid to cleaner and Hamali in the lorry as Rs. 3,000/- per month, taking into consideration 60% thereof, and applying the appropriate relevant factors, awarded a sum of Rs. 1,59,386/- to the claimant in WC 578/2006, Rs. 1,39,463/- to the claimant in WC 579/2007 and Rs. 1,28,425/- to the claimant in WC No. 580/2006. Since the vehicle was covered by the insurance policy and it is the package policy covering commercial vehicle carrying goods, liability to pay the compensation was fastened on the Insurance Company by its judgment and order dated 5.3.2009. The appellant being aggrieved by the said judgment and order passed by the WCC, filed these appeals.
Sri. S.K. Kayakmath, learned counsel appearing for the appellant contended that the judgment and order passed by the WCC is contrary to law. No document has been produced to show that there is a relationship of master and servant between the claimants and the owner of the vehicle. Further, on the basis of the forged wound certificates issued by the Primary Health Centre, Dr. Rajesh assessed the disability, which is contrary to law. The insurance policy covers the risk of the driver only. No additional premium has been paid to cover the risk of the hamalis and coolies. Further, the WCC ought to have taken 1/3rd of the disability assessed by the doctor instead of taking into consideration the disability to an extent of 40% and 35% for assessing the functional disability, which is contrary to law. Hence sought for setting aside the judgment and order by allowing these appeals.
On the other hand, learned counsel appearing for the respondents argued in support of the judgment and order passed by the WCC and sought for dismissal of the appeals.
I have carefully considered the arguments addressed by the learned counsel appearing for the parties and perused the judgment and order, oral and documentary evidence adduced by the parties.
It is not in dispute that the claimants were working in the vehicle bearing No. KA-34/4548 belonging to the 2nd respondent as Hamalis and coolie and sustained injuries in the accident occurred 22.11.2006. Immediately after the accident, they have taken treatment at Kurugodu Primary Health Centre and thereafter they have taken treatment in private hospitals. The main contention of the appellant in these appeals is that, there is no relationship of master and servant between the claimants and the owner of the offending vehicle and on the bogus documents, the claimants have filed the claim petitions. In support of its contention, the Insurance Company has examined Sri. R. Chandramouli, Asst. Manager, Oriental Insurance Co. Ltd., Bellary as RW1. However, no such contention has been taken in his evidence. Hence it is not open to the appellant to contend that the claim petitions have been filed on the forged documents. The wound certificates at Exs. P4, P8 and P10 clearly disclose that, on 22.11.2006, immediately after the accident, the claimants have been taken to the Primary Health Centre, Kurugodu at about 4.45 am in the morning. The doctor who treated the claimants has issued the wound certificates, which clearly disclose that the claimant in WC 579/2006 has sustained fracture of upper end of humerus bone, fracture of patella bone and other lacerated injuries; the claimant in WC 578/2006 has sustained the fracture of the patella, fracture of radius bone of left lower end and other injuries to the body; and the claimant in WC 580/2006 sustained fracture of right radius bone lower end, fracture of tibia lower 1/3rd and other injuries. After looking into the x-ray reports, the Primary Health Centre issued wound certificates. Thereafter they have taken treatment in the private hospital. Dr. Rajesh M., after looking into the wound certificates and taking into consideration the present situation, opined that the claimant in WC 580/2006 is still having a deformity of right wrist and pain in right leg and ankle; there is restricted movement of wrist; and accordingly, assessed the disability to an extent of 40%. Insofar as the claimant in WC 578/2006, the doctor assessed the disability to an extent of 45% looking into the x-ray report and disability existing as on the date assessment. The doctor opined that the patient complains pain and stiffness of left knee and left wrist and there is restricted movement of knee. Insofar as the claimant in WC 579/2006, the doctor after looking into the x-ray report and looking to the patient, assessed the disability at 40%. It is opined that the claimant complaints pain of right shoulder and right knee; the claimant is unable to lift the weight and there was tenderness in the patella region.
The appellant - Insurance Company cannot dispute the wound certificates issued by the Primary Health Centre. The WCC after taking into consideration the oral and documentary evidence adduced by the parties, wound certificates issued by the Primary Health Centre and assessment of the functional disability of the claimants, awarded the just compensation. I do not find any infirmity in the compensation awarded by the WCC. Further, I do not find any fraud played by the claimants in manipulating the wound certificates. The accident occurred about 3.30 am in the morning. They have taken to the Primary Health Centre at about 4.45 am in the morning itself. The x-rays have been taken and on the basis of the x-ray reports wound certificates have been issued. No document has been produced by the appellant-Insurance Company to show that there is a fraud on the part of the claimants in order to claim the compensation. In the evidence of the officer of the appellant - Insurance Company there is no allegation with regard to fraud wound certificate and also no document has been produced. Hence, the compensation awarded by the WCC is in accordance with law on the basis of the oral and documentary evidence adduced by the parties.
Insofar as the liability fastened on the Insurance Company, the Division Bench of this Court in the case of NATIONAL INSURANCE CO. LTD., v. SHRI. MARUTI AND OTHERS, reported in ILR 2011 KAR 4139, clearly held in para 34 and 35, 36 as under:
"34. As of now, there are only two types of policies envisaged under the Standard Forms as contemplated under Section 6 of the Indian Motor Tariff. Their liability under the liability only policy and package policy reads as under:
(i) Liability Only Policy : This cover Third Party Liability for bodily injury and/''or death and Property Damage Personal Accident cover for Owner Driver is also included.
(ii) Package Policy: This covers loss or damage to the vehicle insured in addition to (i) above.
By reading the above two types of policies, it is clear package policy is nothing short of comprehensive policy with all the contents almost similar to the comprehensive policy which was in vogue earlier to the introduction of this package policy.
The fully worded policy now produced refers to limits of liability as envisaged in Commercial Vehicles B'' Policy (Misc. & special type of vehicles). Section 1 refers to loss of damage to the insured vehicle, tractor-trailer combination; Section-II refers to liability to third parties and Section-Ill refers to towing disabled vehicle. We are concerned with Sub-section (i) of Section-II which reads as under:
Subject to the limits of liability as laid down in the schedule herein, the company will indemnify the insured against all sums including the claimants costs and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person (including the loading and/''or unloading) of the Motor vehicle."
In view of the authoritative pronouncement of the law laid down by the Division Bench of this Court, the package policy of Zone-B for commercial vehicle having a comprehensive policy covers a cleaner and two Hamalies working in a lorry. Hence, the contention of the appellant cannot be accepted. The judgment and order passed by the WCC is in accordance with law. The quantum of compensation is also awarded taking into consideration the functional disability and applying the appropriate relevant factors. No ground is made out to interfere with the said judgment and order. Accordingly, I pass the following:
ORDER
All the appeals are dismissed. The amount in deposit be transferred to the WCC.