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Judgment
A.N. Venugopala Gowda, J.—Challenge in this appeal is to a judgment and order directing the Appellant to deposit compensation of Rs. 1,18,236/- with interest. For convenience, the parties would be referred to with reference to their rank in the claim petition.
Material facts of the case are as follows:
Petitioner was a coolie in a tractor-trailer bearing registration Nos. KA-16-3169 & 3170, which belonged to T. Rajappa, S/o Thippeswamy, An accident involving the said vehicles occurred on 31.03.2005 and the Petitioner who was a coolie in the vehicle, sustained injuries during the course of employment. A claim petition was filed to direct the deposit of compensation by the employer and the insurer. The claim petition though was contested by the insurance company, the employer having remained exparte, the Commissioner after conducting enquiry has allowed the claim petition and has directed the Appellant to deposit compensation of Rs. 1,18,236/- with interest at 12% p.a. from 30.04.2005.
Sri O. Mahesh, learned Counsel appearing for the Appellant, firstly contended that, the Commissioner has erred in fastening the liability on the Appellant, when risk of coolie carried in an agricultural tractor-trailer was not covered. Secondly, the loss of earning capacity for fracture of right metacarpal is excessive. Thirdly, the order to pay interest on the compensation amount after 30 days of the accident is opposed to the decision reported in 2007 SCW 1265 and hence, interference in the matter is called for.
Sri Harish, learned Counsel appearing for the 1st Respondent, firstly contended that, the insurance policy covers the risk of one employee since extra premium has been collected. Secondly, the assessment of loss of earning capacity is with reference to the evidence of qualified medical practitioner and hence, no interference with the finding of fact recorded by the Commissioner is called for. Thirdly, the awarding of interest is in consonance with the ratio of decision reported in Shri Aleemuddin and Others Vs. The Divisional Manager, New India Assurance Company Limited, Learned Counsel by placing reliance on a decision reported at National Insurance Company Limited Vs. Smt. Renuka and Others, , contended that, the appeal is misconceived and hence may be dismissed with costs.
Keeping in view the rival contentions and the record of the case, which I have perused, the questions of law to be determined are:
Whether the Commissioner was justified in holding that the Appellant is liable to pay the compensation amount?
Whether the Commissioner is justified in holding that there is loss of 40% earning capacity?
Whether the award of interest on the compensation amount after 30 days of the accident is justified?
The finding of the Commissioner with regard to the occurrence of an accident involving tractor-trailer bearing registration No. KA-16-3169 & 3170 on 31.03.2005, the sustaining of injuries by the Petitioner as a result of the accident and during the course of employment, the wages and the age of the Petitioner are well-founded from the evidence on record. Ex.P-5 is the wound certificate. Ex.P-6 is the discharge card and Ex.P-8 is the disability assessment certificate.
Dr. Chandrashekar has deposed that he treated the injured at Government Hospital, Chitradurga, wherein the injured was an inpatient. The injuries noticed and treated were fracture of right lateral malleolus, fracture of right anterior end calcaneus and fracture base of right 1st metacarpal. In the disability certificate, he has opined that, the patient has permanent disability of 20 - 25% to the right lower limb and 20 to 25% to the right upper limb. The injuries for which treatment was administered can be seen from the medical records, which are not under challenge. Doctor has only assessed the partial permanent disability, but has not rendered any opinion with regard to loss of earning capacity as a result of the partial permanent disability sustained.
The Petitioner was a coolie. This is not a case of total permanent disability. The Petitioner can continue to do other works. In the circumstances, the Commissioner has erred in assessing the loss of earning capacity at 40% of the wages. Considering the nature of injuries sustained, the resultant partial permanent disability and the avocation of the Petitioner, the loss of earning capacity can be at 25% of the wages, which the Commissioner has reckoned at Rs. 2,500/- p.m. As a result, the compensation payable stands determined at Rs. 73,935/- (Rs. 2500 x 60/100 x 197.16 x 25/100).
Ex.R-1 is the insurance policy. It is a Miscellaneous and Special Type of Vehicles policy. It shows that there is compulsory PA to owner-driver and also WC to employee-1. The Appellant has collected separate premium of Rs. 25/- to an employee. The decision reported at National Insurance Company Limited Vs. Smt. Renuka and Others, on which reliance was placed by learned Counsel appearing for the 1st Respondent/claimant supports the case. In the said case also, the vehicle involved was a tractor-trailer and the insurance company had collected premium of Rs. 25/- to cover the risk of one employee and in the policy it is stated as ''WC to employee 1'' and not as a ''driver''. Noticing the contents of the policy and by making reference to Sub-section (5) of Section 147 of Motor Vehicles Act, 1988, it was held that, it is not permissible for the Appellant insurance company to avoid the liability on the ground that the employee was not permitted to be carried in the vehicle or such a risk was not required to be covered in law when the risk of one employee is expressly covered under the insurance policy. It was further held that, it is not permissible for an insurer to avoid any liability relating to the risk expressly covered under the policy on the ground that such a risk was not required to be covered or could not have been covered in law. The decision squarely applies to the case on hand and hence, the Commissioner is justified in fastening the liability on the Appellant to pay the compensation.
The employer and/or insurer did not deposit the compensation within 30 days of accident. Hence, the decision of the Commissioner to pay interest on the compensation amount w.e.f. 30.04.2005 i.e., after 30 days of the accident is justified. In Shri Aleemuddin and Others Vs. The Divisional Manager, New India Assurance Company Limited, it has been held as follows:
Keeping in mind the ratio of law laid down in the ease referred to supra, it is just and necessary to state that the larger Bench decision in the case of PRATAP NARAIN SINGH DEO (SUPRA) appears to have not been brought to the notice of the Hon''ble Supreme Court, when the decision in the case of National Insurance Co. Ltd. v. Mubasir Ahmed And Kamala Chaturvedi''s Case (Supra) were delivered. The said two decisions are by Benches to two Hon''ble Judges of the Apex Court, whereas, the ration of law laid down in the case of Pratap Narain Singh Deo''s case, which has been followed in the subsequent cases, was rendered by a quorum of more than two Hon''ble Judges. Under Article-141 of the Constitution of India, the judgment of the Hon''ble Supreme Court is binding on all the Courts in the country. However, in the event if there is a conflict on the question of law in two decisions, while considering the question of law on the point and interpretation of statue, this Court is required to follow the course of action as has been laid down by the larger Full Bench of this Court in the case of Govindanaik G Kalaghatigi (supra).
In view of the ratio of law laid down by the Apex Court in the case of Pratap Narain Singh Deo''s (Supra), which is the binding precedent in regard to the expression "fell due" appearing in Section-4-A(1) and (3) of the Act, following and applying the said ratio to the facts of the present case, it has to be held that the amount of compensation becomes due on expiry of one month from the date of accident and if the same is not paid or deposited, interest becomes payable after the expiry of one month period from the date of the workmen sustaining injuries due to an accident in the course of his employment and not after 30 days from the date of order/award passed by the Commissioner. The learned Commissioner has erred in not applying the law as enunciated in the case of Pratap Narain Singh Deo (supra) and in not awarding the interest after expiry of 30 days from the date of the accident. Hence, the contentions of the learned Counsel for Respondent are unacceptable. Substantial question of law stands answered accordingly.
In the result, the appeal is allowed in part and the impugned judgment and order stand modified.
The compensation payable by the Appellant stands determined at Rs. 73,935/- with interest at 12% p.a. w.e.f. 01.05.2005.
Out of the amount in deposit, the compensation with interest as assessed herein be transferred to the Office of the Commissioner and balance amount be refunded to the Appellant.
No costs.