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Judgment
B. Manohar, J. - United India Insurance Company has filed this appeal challenging the judgment and order dated 25-6-2009 made in W.C.A. NF 394/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Bagalkot (hereinafter referred to as ''WCC'' for brevity).
Respondent No. 1 herein filed a claim petition contending that he was working as a driver in the autorickshaw bearing Reg. No. KA-29/6141 belonging to 2nd respondent herein. On 14-6-2007, while he was proceeding towards Hipparagi from Banahatti, driver lost control over the vehicle and dashed against the bridge, due to the impact, the claimant sustained injuries to his right leg and right hand. Initially he had taken treatment in the C. V. Shettar Hospital. Thereafter he took treatment in other hospital. In view of the fracture he has undergone, he became permanently disabled to do the work of driver. At the time of accident, the owner of vehicle was paying him salary of Rs. 3,000/- p.m. and batta of Rs. 50 per day. The accident occurred during the course and out of employment. The vehicle is covered by the insurance policy as on the date of the accident. Hence, sought for compensation of Rs. 5 lakhs.
In pursuance of the notice issued by WCC, the owner of the vehicle entered appearance and filed written statement admit ting that the claimant was working as driver in the said auto, he sustained injuries in the accident occurred on 14-6-2007 and he was paying salary of Rs. 2,500/- per month and batta of Rs. 50/- per day. The vehicle is covered by insurance policy. Hence, the insurer is liable to compensate the claimant and sought for dismissal of the petition as against the owner.
The insurance company filed written statement denying the averments made in the claim petition and contended that there is no relationship of master and servant between the claimant and owner of the vehicle. No documents are produced to show that the claimant has sustained injuries in the road traffic accident and sustained fracture. The insurance company also denied the salary being paid to the claimant and sought for dismissal of the claim petition.
On the basis of the pleadings of the parties, WCC framed necessary issues. The claimant in order to prove his case examined himself as PW1 and got marked the documents as per Ex. P. 1 to Ex. P. 11. The Doctor who treated the injured and issued disability certificate was examined as P.W. 2. On behalf of the respondents, none of the witnesses were examined nor any documents are marked.
The WCC after appreciating the oral and documentary evidence let in by the parties and taking into consideration 1MV reports, spot panchanama, copy of the complaint and charge-sheet, held that the claimant has sustained grievous injuries in the accident occurred on 14-6-2007, during the course and out of employment and is entitled for compensation. With regard to the quantum of compensation is concerned, in the accident the claimant had sustained fracture of radius of right hand and fracture of lemur of right leg. The Doctor who treated the claimant assessed disability to an extent of 23% towards loss of earning capacity. At the time of accident the claimant was aged 37 years. The WCC taking into consideration income of the claimant as Rs. 3,200/- per month and taking 60% thereof, and taking disability to an extent of 23% applying relevant factor of 192.4 awarded a sum of Rs. 84,843/- with 12% interest. Since the vehicle is covered by insurance as on the date of accident and driver of autorickshaw was having valid driving license, the liability was fastened on the insurance company. Being-aggrieved by the order passed by the WCC the Insurance Company has preferred this appeal.
I have carefully considered the arguments addressed by Sri C.V. Angadi, advocate for appellant and Sri Harish S. Maigur for second respondent and perused the judgment and order, oral and documentary evidence.
The claimant being the driver of auto sustained injuries in the road traffic accident occurred on 14-6-2007 during the course and out of employment. The appellant insurance company contended that there is no relationship of master and servant between the claimant and the owner and claimant does not fall within the provision of Section 2(1)(n) of Employee''s Compensation Act and claimant is not entitled to compensation.
Owner of the vehicle admitted that claimant was working as driver in the auto and he was paying him salary of Rs. 2,500/- p.m. and batta of Rs. 50/- per day. The claimant categorically stated in the cross-examination that he was working as driver in the said auto. The Insurance Company has not led any evidence nor produced any documents to establish their contention. The Insurance Company has not stepped into the witness box to prove the contention taken in the written statement by leading evidence. The evidence on record clearly reveals that the claimant was working as driver in the auto and he has sustained injuries in the accident. The compensation awarded taking into consideration functional disability of 23%, the WCC awarded compensation, which is in accordance with law. I find there is no infirmity or irregularity in the finding of WCC. The appellant has not made out a case to interfere with the same. Accordingly, appeal is dismissed.
Amount in deposit be transmitted to the WCC for disbursement.
In view of dismissal of the appeal, Misc. Cvl. No. 101171/2010 is rejected.