The Divisional Manager, The United India Insurance Co. Ltd. vs Vaijanath and Others

B. Manohar, J.—1. These two appeals are filed by the United India Insurance Co. Ltd. and claimant, being aggrieved by the judgment and order dated 22nd July 2010 made in WCA/CR No. 37/2009 by the Labour Officer and Commissioner for Workmen''s Compensation, Gulbarga, (hereinafter referred to as ''WCC'').

The Insurance Company being aggrieved by awarding exorbitant compensation and fastening liability on them to compensate the claimant has filed MFA No. 31925/2010, whereas the claimant being not satisfied with the quantum of compensation awarded by the WCC has filed MFA No. 30909/2011 seeking for enhancement of compensation.

Since the common judgment and order passed by the WCC is challenged in these appeals, both the appeals are clubbed together and disposed of by this common judgment.

For the sake of convenience, the parties are referred to as in the claim petition.

Claimant filed a claim petition before the WCC contending that he was working as a labourer in a tractor & trailer bearing Regn. Nos. KA-32/T-6344 & 6345 belonged to the 1st respondent. On 21.3.2008 at about 4.30 a.m., as per the instructions of owner of the vehicle, while he was proceeding towards his village after loading sand at Surwar village, Chincholi Taluk, due to rash and negligent driving of the said tractor and trailer by its driver, it turned turtle on Huvinalli - Nidagunda main road. Due to that, he sustained fracture to the right hip joint and other injuries to the body. He took treatment at Basaveshwara Hospital, Gulbarga as inpatient from 21.3.2008 to 29.3.2008. At the time of accident, he was aged about 38 years and earning a sum of Rs. 4,500/- p.m. Due to the injuries and fracture sustained by him, he cannot work as a labourer, which was doing prior to the accident. The accident had occurred during the course and arising out of employment. Hence, he sought for compensation of Rs. 5,00,000/-.

In pursuance of the notice issued by the WCC, though the owner of the vehicle was served with notice, he remained unrepresented and placed ex-parte.

The 2nd respondent - Insurance Company filed written statement denying the entire averments made in the claim petition and contended that there exists no relationship of master and servant between the owner of the vehicle and claimant. Hence, the Insurer is not liable to pay compensation and sought for dismissal of the claim petition as against the Insurer. On the other hand, a complaint filed by the claimant before the jurisdictional police clearly discloses that while he was bringing sand for repairing his house in a hired vehicle, he has sustained injury. Hence, the insurance policy does not cover the risk of an unauthorised passenger travelling in a tractor and trailer. Hence, claimant is not entitled to compensation and sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the WCC framed necessary issues.

Claimant in order to prove his case got examined himself as P.W. 1 and Dr. Kishor Mengaji, who has issued the disability certificate was examined as PW2 and got marked the documents as Exs. P1 to P17. On behalf of the Insurer, the Administrative Officer of the Insurance Company was examined as RW1 and got marked the insurance policy of the offending vehicle as Ex. R1.

The WCC, after appreciating the oral and documentary evidence let in by the parties and taking into consideration the police records held that claimant has sustained injuries in the road traffic accident that occurred on 21.3.2008 due to negligent driving of the tractor and trailer by its driver during the course and arising out of employment. Hence, he is entitled to compensation.

With regard to quantum of compensation is concerned, though the claimant claimed that he was getting salary of Rs. 4,500/- p.m. as a labourer, no document was produced to substantiate the same. The doctor, who has issued the disability certificate and taking into consideration the fracture to the right hip and other injuries sustained and sufferings undergone, assessed the disability to an extent of 20%. The WCC, taking into consideration the minimum wages being paid to the labourer working in a transport vehicle, taken the income of the claimant at Rs. 3,000/- p.m, taking 60% thereof and applying relevant factor 197.06, further considering the age of claimant as 35 years at the time of accident, has awarded compensation of Rs. 70,941/- with interest at 12% p.a. from 30 days after the date of the order.

With regard to liability is concerned, as on the date of accident, the tractor and trailer was covered by insurance policy paying a premium of Rs. 25/- for W.C. employee-1. The accident had occurred during the course and out of employment. Hence, claimant is entitled to compensation and the liability has been fastened on the Insurance Company to compensate the claimant. The Insurance Company being aggrieved by the judgment and order passed by the WCC, has filed MFA No. 31925/2010, whereas the claimant being aggrieved by the quantum of compensation taking into consideration his income as Rs. 3,000/- p.m. and awarding interest at 12% from 30 days after the date of order has filed MFA No. 30909/2011 seeking for enhancement of compensation.

Sri Manvendra Reddy, learned Advocate appearing for the Insurance Company contended that the judgment and order passed by the WCC is contrary to law. No document has been produced before the WCC to prove that claimant is an employee as required under Section 2(1)(n) of the Workmen''s Compensation Act. Further, he contended that no document has been produced to show that owner of the vehicle was paying salary to the claimant. Learned Advocate also contended that there is no evidence to prove the occurrence of accident on 21.3.2008 at 4.30 a.m. A complaint was lodged on 21.3.2008 by the claimant. In the complaint, he has specifically contended that one Sri Venkatesh had taken the offending vehicle on lease from its owner to bring sand for the purpose of plastering the house of claimant from Surwar village. After loading the sand, when they were proceeding towards their village, due to rash and negligent driving of the tractor and trailer, the accident had occurred on Huvinalli - Nidagunda main road. Due to that, claimant and Sri Venkatesh had sustained injuries. However, in the claim petition, a different contention has been taken. Apart from that, no document has been produced to show that there was relationship of master and servant between the owner of the vehicle and claimant. Learned Advocate relied upon judgments reported in , (2007) 13 SCC 476 in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others and another decision reported in , ILR 2011 Kar. 331 in the case of Oriental Insurance Co. Ltd. v. Nagaraj K.H. and Another. Hence, he sought for setting aside the judgment and order passed by the WCC by allowing the appeal filed by the Insurance Company.

On the other hand, Sri Sharanabasappa K Babshetty, learned Advocate appearing for the claimant argued in support of the judgment and order passed by the WCC and also contended that the income of Rs. 3,000/- p.m. taken for determining compensation is on the lower side. The owner of the vehicle was paying him a sum of Rs. 4,500/- p.m. to the claimant. The accident had occurred in the year 2008. Hence, the WCC ought to have taken the income as Rs. 4,000/- p.m. and awarded interest at 12% p.a. from one month after the accident. Therefore, learned Advocate sought for modifying the judgment and order by enhancing the compensation.

I have carefully considered the arguments addressed by the Advocates appearing for the parties and perused the judgment and order and other relevant records.

The records clearly disclose that claimant has sustained injuries in the road traffic accident that occurred on 21.3.2008 on Hoovinalli - Nidagunda main road. He claimed that he was working as a labourer in the tractor and trailer belonged to the 1st respondent. As per the instructions of owner of the vehicle, claimant was proceeding in the offending vehicle to bring sand for the purpose of plastering house from Surwar village, Chincholi Taluk. After loading the sand, while he was proceeding towards village, due to rash and negligent driving of the said tractor and trailer by its driver, the vehicle met with an accident. The accident had occurred during the course and arising out of employment. Hence, the claimant is entitled to compensation.

On the other hand, the insurer contended that there is no relationship of master and servant between the owner of the vehicle and claimant. A complaint was lodged immediately after the accident. He has clearly mentioned that he was an agriculturist by profession. While bringing sand for the purpose of plastering his house from Surwar village, due to rash and negligent driving of the tractor and trailer by its driver, the accident had occurred and claimant and Sri Venkatesh sitting in the tractor and trailer have sustained injuries. Hence, claimant is not entitled for any compensation.

The complaint filed by the claimant before the jurisdictional police immediately after the accident clearly discloses that he is an agriculturist by profession and he went along with Sri Venkatesh to Surwar village, Chincholi Taluk, who had taken the vehicle on lease from its owner, to bring sand for repairing his house. The said vehicle met with accident. A charge sheet was filed on the same lines, whereas while filing the claim petition, it was contended that claimant was working as a labourer in the tractor and trailer belonged to the 1st respondent - owner of the vehicle and he was paying him the salary of Rs. 4,500/- p.m. The claimant has sustained injuries during the course of employment. Though owner of the vehicle was served with notice, he has not supported the case of claimant. Further, in order to prove the accident, Sri. Venkatesh, who was travelling with the claimant in the offending vehicle was not examined. Except oral assertion, no document has been produced. The Insurance Company in the statement of objection filed before the WCC has disputed the relationship of master and servant. Though the WCC framed necessary issues with regard to the relationship of master and servant, the WCC overlooked the evidence of RW1. In the absence of any documents, the WCC ought not to have held that claimant is the workman within the meaning of Section 2(1)(n) of the Act. There is no material to come to the said conclusion. On the basis of mere assertion, the WCC has given the said finding.

In the complaint filed by the claimant before the jurisdictional police, he has clearly admitted that he is an agriculturist by profession and he went along with Sri Venkatesh to bring sand for plastering his house from Surwar village. In the FIR also, same thing has been mentioned. The Hon''ble Supreme Court in a judgment reported in , (2007) 13 SCC 476 referred supra at paras-13 and 14 has held as under:

"13. However, the factum of an accident could also be proved from the first information report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an exhibit as both the parties intended to rely upon them.

Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document having been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise."

In the instant case, the claimant has clearly mentioned in the complaint lodged before the police as well as in the charge sheet that while he was bringing the sand for repairing his house, the accident had occurred. He has also stated that he was an agriculturist by profession. But, in the claim petition, he cannot turn round and claim that he is a labourer working in the offending vehicle. The said complaint came into existence at the instance of the claimant himself and therefore, he cannot dispute the said complaint/document.

The Division Bench of this Court in the judgment reported in , ILR 2011 Kar 331 (supra) held that the complaint filed before the police as per Ex. R1 cannot be disputed at subsequent point of time. In the instant case also, in the complaint lodged before the police, the claimant has clearly admitted that while he was bringing the sand from Surwar village, Chincholi Taluk, the accident had occurred and he has sustained injuries. He is an agriculturist by profession. Hence, his contention that he was working as a labourer in the tractor and trailer cannot be accepted. During the course of evidence, claimant has not examined Sri Venkatesh, who was travelling along with him to substantiate his contention that he was working in the said lorry. Except self-serving statement and assertion, no document has been produced. On the other hand, the complaint lodged before the jurisdictional police clearly discloses that claimant is an agriculturist by profession. While bringing the sand for repairing his house, the accident had occurred and he has sustained injuries. There is no relationship of master and servant between the owner of the vehicle and claimant. Hence, the judgment and order passed by the WCC cannot be sustained and the same is required to be set aside.

In view of the above finding, MFA No. 30909/2011 filed by the claimant seeking for enhancement of compensation requires to be dismissed. Accordingly, I pass the following:

"ORDER

MFA No. 31925/2010 filed by the Insurance Company is allowed. The judgment and order dated 22.7.2010 made in WCA No. 37/2009 on the file of the Labour Officer and Commissioner for Workmen Compensation, Gulbarga, is set aside. The claim petition filed by the claimant is dismissed.

MFA No. 30909/2011 filed by the claimant seeking for enhancement of compensation is dismissed.

The amount in deposit made before this Court is directed to be transferred to the Principal Senior Civil Judge & CJM, Kalaburagi in view of abolition of the post of Commissioner for Workmen Compensation, Kalaburagi District, Kalaburagi."