United India Insurance Co. Ltd. vs Malleshappa

Mr. B. Manohar, J.—Appellant - United India Insurance Company Ltd. has filed this appeal challenging the judgment and order dated 6th March, 2008 made in No. CWC:WCA.NF. 179/2006 by the Labour Officer and Commissioner for Workmen''s Compensation, Haveri (hereinafter referred to as ''WCC'') fastening the liability on them to compensate the claimant.

Parties are referred to as before the WCC:

Claimant filed a claim petition contending that he was a coolie and driver of Tractor and Trailer bearing Regn. No. KA-27/T-5921 and 5922 belonging to the 1st respondent. On 30.8.2005, as per the instructions of the owner of the vehicle, when he was proceeding on the vehicle on the road of the tank bed, the driver lost control over the tractor and fell into the tank. Due to the said accident, he has sustained grievous injuries to all over the body. Immediately after the accident, he was shifted to Government Hospital at Haveri. Thereafter, he was shifted to Parvathi Nursing Home at Shimoga for further treatment. The owner of the vehicle was paying salary of Rs. 4,000/- p.m. and bata of Rs. 50/- per day. The accident had occurred during course and out of employment. Hence, claimant was entitled for compensation. Since the vehicle was covered by insurance policy as on the date of accident, both the owner of the vehicle as well as the insurer were liable to compensate the claimant. Hence, he sought for compensation of Rs. 4,00,000/-.

In response to the notice issued by the WCC, the 1st respondent - owner of the vehicle entered appearance and filed written statement admitting that the claimant was working as a driver of the tractor and trailer belonging to the 1st respondent. He was paying salary of Rs. 3,500/- p.m. During the course and out of employment, claimant sustained injuries in the road traffic accident that occurred on 30.8.2005.

The Insurance Company filed written statement denying the entire averments made in the claim petition and also contending that there was no relationship of master and servant between the owner and the claimant. Further, the driver of tractor and trailer was not having valid and effective driving license as on the date of accident. The owner of the vehicle is none other than the father of the claimant. Claimant as well as his father are staying in the same house. Hence, there is no relationship of master and servant between them 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 examined himself as PW1 and the doctor, who treated him, was examined as PW2 and get marked the documents as Exs.P1 to P14, On behalf of respondents, none of the witnesses were examined. However, the insurance policy was marked as Ex.R1.

The WCC after appreciating the oral and documentary evidence let in by the parties and taking into consideration the spot panchanama, copy of complaint, charge sheet etc. held that the claimant sustained injuries during the course and out of employment. Though the owner of the vehicle is the father of the claimant, son can be a workman under the father and there is no bar as such under the Workmen Compensation Act. Hence, the WCC held that the claimant is entitled for compensation.

With regard to quantum of compensation is concerned, in the accident, the claimant sustained fracture of anterior portion of right shoulder, fracture of right scapula bone, fracture of three ribs of right side and other simple injuries. He took treatment initially at Primary Health Centre and thereafter in Parvathi Nursing Home, Shimoga. In view of mal-union of right ribs, he was permanently disabled to do the work as a coolie or as a driver. He produced necessary documents in this regard. Dr. Umanath R. Ullal looked into the medical records and issued disability certificate stating that :n view of fracture of right shoulder, fracture of right scapula bone and ribs, the claimant suffered disability to an extent of 45%. No document has been produced with regard to income of the claimant. The WCC taking into consideration the minimum wages being paid to the coolies i.e., Rs. 3,000/- p.m. and taking 60% thereof, taking the loss of earning capacity to an extent of 45% and applying the relevant factor 189.56 having regard to the age of the claimant as 38 years, awarded a sum of Rs. 1,53,543/- with interest at 12% p.a. from the date of claim petition. Since the tractor and trailer was covered by insurance policy and the driver was having valid and effective driving license as on the date of accident, the WCC has passed the judgment and order fastening the liability on the Insurance Company to compensate the claimant. Being aggrieved by the judgment and order passed by the WCC, the Insurance Company has hied this appeal.

Sri S.S. Keliwad, learned Standing Counsel appearing for the appellant - Insurance Company contended that the judgment and order passed by the WCC is contrary to law under the Employees Compensation Act. It is incumbent upon the claimant to prove that he is a workman as defined under Section 2(1)(n) of the Act. In the instant case, the owner of the vehicle is none other than the father of the claimant. There cannot be a relationship of master and servant between them. Further the 1st respondent - father and the claimant - son are staying in the same house. Hence, the son cannot claim to be a workman under his father. The WCC has taken into consideration the loss of earning capacity to the extent of 45% and the income as Rs. 3,000/- per month which is on the higher side. The doctor who has issued the disability certificate is not the doctor who treated the claimant. Hence the assessment of disability cannot be accepted and sought for modification/setting aside the judgment and order of the WCC.

On the other hand, Sri M.H. Patil, the advocate appearing for respondent No. 1 supported the judgment and order passed by the Commissioner. He contended that the claimant was working as a driver as well as a coolie in the tractor belonging to the 1st respondent, who is none other than his father. There is no provision in the Act which contemplates that a son cannot be treated as a ''workman'', as defined under the Act, under his father. He submitted that a similar issue was raised and considered by this Court in M.F.A. No. 5426/2007 (between The New India Assurance Co. Ltd. and Smt. Mahananda & others disposed of on 31 01.2009) and M.F.A. No. 31321/2010 (between Divisional Manager, National Insurance Company Limited v. Smt. Pramilabai and Others, disposed of on 02.03.2016) and United India Insurance Company Ltd. v. Jhonsa & Others reported in 2001 ACJ 1682. Therefore, he sought for dismissal of the appeal.

After hearing the learned advocates for the parties, the questions that arise for consideration in this appeal are;

i) Whether the claimant, who is the son of the 1st respondent, can be treated as an ''workman'' under the provisions of the Workmen''s Compensation Act?

ii) Whether the compensation awarded by the Commissioner is in accordance with law?

It is not in dispute that the claimant was working as a driver as well as coolie in the tractor-trailer belonging to the 2nd respondent herein. The 2nd respondent is none other than the father of the claimant. The claimant claimed that though the owner of the tractor is his father, he was working as a driver under his father and he came within the meaning of ''Workman'' under the Workmen''s Compensation Act. Further, the accident occurred during the course and out of employment. In the accident, he sustained permanent disability due to which he cannot continue to work as a driver. Hence, the case of the claimant is that he was entitled for compensation under the Act. On the contrary, the contention of the appellant is that, at no stretch of imagination, the claimant, who is the son of the 2nd respondent, cannot be treated as a ''workman'' under the Workmen''s Compensation Act and the claimant is not entitled to compensation. In support of this contention he has contended that father and son are residing in the same house and hence the son cannot claim to be an employee under his father.

Before the WCC, the claimant stepped into the witness box and, while reiterating the averments made in the claim petition, stated that since last two months he was working as a driver of the tractor-trailer belonging to his father. He also stated besides him, his father had other sons and it was he (the claimant) who had a valid driving licence to drive the tractor-trailer and was working as a driver of the said tractor and trailer. Hence, was a workman as defined under the Act. However, though the appellant had taken a specific contention in the written statement, they did not step into witness box to prove its case. As the appellant had not stepped into the witness box and pleaded its case, the contention taken in the written statement cannot be accepted. Whereas it is the specific case of the claimant that he was the son of owner of the tractor and trailer, who is none other than his father, and was getting salary of Rs. 3,500/- per month from the owner of the tractor-trailer. The owner'' of the tractor-trailer also admitted that he was getting salary of Rs. 3,500/- per month. Though the claimant was cross-examined by the advocate appearing for the insurer, nothing contrary was elicited in the cross-examination. The contention of the claimant that he was a workman working under the 2nd respondent is pleaded and proved in accordance with law.

Under the Workmen''s Compensation Act, there is no bar for a son claiming to be a workman under his father. This Court in M.F.A. No. 5426/2007 and M.F.A. No. 31321/2010 referred to above, examined the issue that has been taken by the appellant-insurance company herein. In the aforesaid appeals, it was held that there was no prohibition under the Act that a son cannot be a workman under his father. This Court relying upon the earlier judgment reported in 2001 ACJ 1682 clearly held that the deceased who is the children working as a coolie in tractor-trailer can also be a workman under the father. Hence, there is no substance in the contention urged by the appellant. The question raised in this regard is answered in favour of respondent/claimant.

With regard to the quantum of compensation, though the owner of the vehicle in the written statement claimed that, he was getting salary of Rs. 3,500/-, the WCC taking into consideration the income as Rs. 3,000/- per month, taking the loss of earning capacity as 45% and applying the relevant factor, awarded a sum of Rs. 1,53,543/- with interest at 12% per annum. I find no infirmity or irregularity in the findings recorded and the compensation awarded by the Tribunal. No case is made out to interfere with the judgment and order passed by the Tribunal.

Accordingly, appeal is dismissed.

The amount in deposit before this Court be transferred to WCC along with die records.