Karnataka High Court
M/S United India Insurance Company ... vs Sri Lakshmipathi @ Krishna on 7 June, 2022
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.NO.463 OF 2013
C/W
M.F.A.NO.5953 OF 2013
IN M.F.A.NO.463/2013:
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, AKKAMAHADEVI ROAD
P J EXTENSION, DAVANAGERE
REP. BY ITS DIVISIONAL MANAGER.
...APPELLANT
[BY SRI A.M. VENKATESH, ADVOCATE (VC)]
AND:
1. SRI LAKSHMIPATHI @ KRISHNA
S/O SIDDAPPA, AGED 23 YEARS
R/O GOPALAPURA
HIRIYUR TOWN
CHITRADURGA DISTRICT
2. SRI H.K. CHANDRASHEKAR
S/O KAREGOWDA
OWNER OF TATA ACE VEHICLE
BEARING NO. KA-14/A-6632.
...RESPONDENTS
(BY SRI A.B.MANJUNATH, ADVOCATE FOR R1 (VC);
SRI SPOORTHY HEGDE N., ADVOCATE FOR R2 (VC)]
2
IN M.F.A.NO.5953/2013:
BETWEEN:
SRI LAKSHMIPATHI @ KRISHNA
S/O SIDDAPPA, AGED ABOUT 25 YEARS
R/A GOPALAPURA, HIRIYUR TOWN
CHITRADURGA-577 501.
...APPELLANT
[BY SRI A.B.MANJUNATH, ADVOCATE (VC)]
AND:
1. SRI H.K. CHANDRASHEKAR
S/O KAREGOWDA, R/AT DHARMAPURA
HIRIYUR TALUK
CHITRADURGA DISTRICT-572 143.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, P.B.NO.237
AKKAMAHADEVI ROAD, P.J.EXTENSION
DAVANGERE-577 001. ...RESPONDENTS
[BY, SRI SPOORTHY HEGDE N., ADVOCATE FOR R1 (VC);
SRI A.M. VENKATESH, ADVOCATE FOR R2 (VC)]
THIS M.F.A No.463/2013 IS FILED UNDER SECTION 30(1) OF
W.C.ACT AGAINST THE JUDGMENT DATED 16.11.2012 PASSED IN
PÁCa/PÁ£À¥À/J£ïJ¥sï/¹Dgï-128/2011 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA
DISTRICT, CHITRADURGA, AWARDING A COMPENSATION OF
RS.1,93,593/- WITH INTEREST.
THIS M.F.A No.5953/2013 IS FILED UNDER SECTION 30(1) OF
W.C.ACT AGAINST THE JUDGMENT DATED 16.11.2012 PASSED IN
PÁCa/PÁ£À¥À/J£ïJ¥sï/¹Dgï-128/2011 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA
DISTRICT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.03.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
3
JUDGMENT
Challenging order dated 16.11.2012 passed by Labour Officer and Commissioner for Workmen's Compensation, Chitradurga, District, (for short 'Commissioner'), in WCA.NFC.CR-128/2011, above appeals i.e., MFA No.463/2013 is filed by insurer and MFA 5953/2013 is filed by workman.
2. An application was filed by one Lakshmipathi @ Krishna (for short 'workman') against H.K.Chandrashekar (for short 'employer') and United India Insurance Company Limited (for short 'insurer') stating that he was employed as driver in TATA ACE Mini Luggage tempo bearing registration no.KA-14-A-6232. On 05.06.2011, while driving said vehicle on instructions of employer on Hulikunte Gate - Amarapura road, he lost control over it. As a result, it dashed against persons waiting in bus stop and thereafter overturned, due to which, workman sustained grievous injuries. Despite treatment, he did not recover fully and sustained loss of earning capacity. Claiming compensation for same, he filed claim 4 petition under provisions of Workmen's Compensation Act, 1951, (for short ' W.C. Act').
3. On service of notice, employer as well as insurer entered appearance. But, only insurer filed objections, denying claim petition averments. It was stated that on 05.06.2011, he had not instructed applicant to drive said vehicle. He not only denied occurrence of accident and workman sustaining injuries therein, but also instructing applicant to drive vehicle. As such, he denied existence of relationship of employer and employee.
4. Based on pleadings, Commissioner framed following issues:
a) CfðzÁgÀ g ÁzÀ ®Që ö äÃ¥À w C°AiÀ i Á¸ï PÀ È µÀ Ú gÀ ª À g À Ä PÁ«ÄðPÀ ¥À j ºÁgÀ PÁAiÉ Ä ÝAiÀ Ä PÀ ® A 1 2( 1 ) (J£ï) ¥À æ P ÁgÀ PÁ«ÄðPÀ £ ÁVzÀ Ý £É A zÀ Ä ¸Á©ÃvÀ Ä ¥À r ¸À Ä ªÀ g É Ã ?
b) CfðzÁgÀ g ÁzÀ ®Që ö äÃ¥À w C°AiÀ i Á¸ï PÀ È µÀ Ú gÀ ª À g À Ä 1 £É à ¥À æ w ªÁ¢AiÀ Ä mÁmÁ J¹ ¸À A SÉ å :PÉ J - 1 4 / J- 6 2 3 2 gÀ ° è ZÁ®PÀ PÉ ® ¸À ª À £ À Ä ß ¤ªÀ ð ¸À Ä wÛ z ÁÝUÀ ¢£ÁAPÀ : 0 5. 0 6. 2 0 1 1 gÀ A zÀ Ä GzÉ Æ åÃUÀ ¢ AzÀ ªÀ Ä vÀ Ä Û GzÉ Æ åÃUÀ z À ¸À ª À Ä AiÀ Ä zÀ ° è ¸À A ¨s À « ¹zÀ C¥À W ÁvÀ z À ° è wêÀ æ ª ÁV UÁAiÀ Ä UÉ Æ AqÀ Ä ±Á±À é v À ¤§ð®vÉ U É vÀ Ä vÁÛ V gÀ Ä vÁÛ g É A zÀ Ä ¸Á©ÃvÀ Ä ¥À r ¸À Ä ªÀ g É Ã ? 5
c) CfðzÁgÀ g À Ä 1 £É à ¥À æ w ªÁ¢¬ÄAzÀ ªÀ i Á¹PÀ gÀ Æ .-
8, 0 0 0 . 0 0 UÀ ¼ À ªÉ à vÀ £ À ª À £ À Ä ß ºÁUÀ Æ gÀ Æ . 1 0 0 UÀ ¼ À ¢£À ¨ s À v É å AiÀ Ä £À Ä ß ¥À q É A iÀ Ä ÄwÛ z À Ý gÉ A zÀ Ä ºÁUÀ Æ C¥À W ÁvÀ z À ªÉ à ¼É CªÀ j UÉ 2 3 ªÀ µ À ð ªÀ A iÀ Ä ¸Áì V vÉ Û A zÀ Ä ¸Á©ÃvÀ Ä ¥À r ¸À Ä ªÀ g É Ã ?
d) CfðzÁgÀ g À Ä G¨s À A iÀ Ä ¥À æ w ªÁ¢UÀ ¼ À ¥É Ê Q AiÀ i ÁªÀ ¥À æ w ªÁ¢¬ÄAzÀ ¥À j ºÁgÀ ºÁUÀ Æ §rØ A iÀ Ä £À Ä ß ¥À q É A iÀ Ä ®Ä CºÀ ð gÁVgÀ Ä vÁÛ g É ?
e) F §UÉ Î DzÉ Ã ±À ª É Ã £À Ä ?
5. In support of his claim, applicant examined himself as PW.1 and Dr. K.B. Raghavendran, Orthopaedic Surgeon as PW.2. Exhibits P.1 to P.8 were marked. On behalf of insurer, one of its official was examined as RW.1. Exs. R2(1) and R.2(2) were marked.
6. On consideration, Commissioner answered issue no.1 in affirmative, holding workman established employment with employer. Issue no.2 was answered partly in affirmative holding that workman sustained partial permanent physical disability at 40% to left lower limb, during course of employment and arising out of employment. Issue no.3 was answered in affirmative by determining age of workman as 33 years and his monthly income at Rs.4,000/-. Issue nos.4 and 5 were answered in affirmative holding 6 workman entitled for total compensation of Rs.1,93,593/- and directing employer/insurer to deposit same with interest at 7.5% per annum within 30 days from date of order and in case of failure, pay interest at 12% per annum from 17.11.2012 till payment.
7. Aggrieved by said award, insurer filed appeal challenging award on liability; while workman filed appeal seeking for enhancement of compensation.
8. Sri A.M.Venkatesh, learned counsel for insurer submitted that admittedly, workman was holding driving licence to drive light motor vehicle. But, at time of accident, he was driving a light goods vehicle without 'transport' endorsement on his driving licence, which was against policy conditions stipulating requirement of holding valid and effective driving licence to drive particular class of vehicle on date of accident. Therefore, liability of insurer was required to be absolved. But, as Commissioner passed impugned award holding insurer liable to pay compensation, appeal was filed.
9. It was further submitted that neither employer (owner of insured vehicle) nor workman produced driving licence to drive 7 transport vehicle, therefore, violation of policy condition was established. It was also contended that insured had knowingly allowed workman to drive goods vehicle in breach of terms of policy. In support of his submissions, learned counsel relied upon following decisions:
• 2020 ACJ 3000
Beli Ram vs. Rajinder Kumar and Another
• MFA No.2268/2010 D.D.05.02.2020
Mr.Hubert Ronald D'Souza vs. Sri T.K.Prakash and Another • MFA No.4664/2005 D.D.12.01.2011 The New India Assurance Co.Ltd. vs. Smt.Zahirunnissa Dastagiri and Others • ILR 2007 KAR 4567 Yashodhara B.Shetty vs. United India Insurance Co.Ltd. and Ors.
• MFA No.4008/2010 D.D.31.01.2022 M/s. The United India Insurance Company Limited vs. Smt. Rankibai and Another • MFA No.1785/2010 D.D.31.01.2022 M/s. Oriental Insurance Co. Ltd., vs. Smt.Pattammal and Others • MFA No.7447/2010 D.D.25.11.2020 The Oriental Insurance Co. Ltd., Vs. Mohd. Nazeer and Another • MFA No.2567/2010 D.D.24.09.2021 The Oriental Insurance Co.Ltd., vs. Smt.Famida and Others.
10. On other hand, Sri. A.B. Manjunath, learned counsel submitted that, admittedly workman was having valid driving 8 licence to drive 'light motor vehicle'. As per law laid down by Hon'ble Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Limited, reported in 2017 (14) SCC 663, coming into force after amendment of Act no.54 of 1994 to Motor Vehicles Act, wherein, any person having licence to drive 'light motor vehicle' would be competent to drive 'transport vehicle with gross vehicle weight of less than 7500 Kgs', and also without possession of driver's badge or transport endorsement on driving licence. Therefore, there was no merit in challenge by insurer.
He submitted that due to injuries sustained in accident, workman sustained 40% permanent physical disability, which resulted in total loss of earning capacity as driver. Therefore, extent of loss of earning capacity assessed required enhancement. He further submitted that award of interest by Commissioner was not in accordance with decision of Hon'ble Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Siby George & Ors. reported in (2012) 12 SCC 540, and sought for allowing workman's appeal.
11. Learned counsel for employer Sri Spoorthy Hegde, opposed insurer's appeal.
9
12. In reply, learned counsel for insurer submitted that ratio of decision of Hon'ble Supreme Court in Mukund Dewangan's case (supra) would not apply to claims arising under W.C. Act and said decision was rendered by considering provisions of M.V. Act, as beneficial legislation. It was submitted that liability of insurer under provisions of W.C. Act is not statutory, but contractual, which requires to be interpreted strictly. It was submitted that where insurer established violation of policy conditions, burden would fall upon employer to establish that he had verified about validity of driving licence of driver prior to instruction to drive insured vehicle. In case of failure of employer to discharge said burden, insurer could not be made liable. On above grounds, sought for allowing insurer's appeal, absolving its liability and passing award against insured.
13. Insofar as quantum of compensation, it was submitted that even after accident in question, workman had apparently continued his occupation, as he had not surrendered driving licence. It was further submitted that injury sustained in accident had not rendered workman unfit to drive motor vehicle. Therefore, 10 assessment of extent of disability by Commissioner was excessive and exorbitant and submitted that there was no scope for enhancement, even if not for reduction.
14. From above submission, relationship of employer and employee is not in dispute. Occurrence of accident during course of employment and out of employment is also not in dispute. Only dispute is about validity of driving licence of workman to drive goods vehicle. While learned counsel for insurer submits that liability of insurer under W.C.Act being contractual, terms and conditions of policy have to be given strict interpretation and as per decision in Beli Ram's case (supra), as employer in this case did not dispute that workman was driving 'light goods vehicle', but, was possessing driving licence to drive 'light motor vehicle', there was admitted failure on his part to take due care and caution to ensure validity of driving licence. Whereas, learned counsel for workman contends that validity of driving licence has to be tested as per provisions of Motor Vehicles Act and as such, interpretation of provisions of M.V.Act by Hon'ble Apex Court in Mukund Dewangan's case (supra) would enure to benefit of workman. At same time, workman is also seeking for enhancement of 11 compensation insofar as assessment of extent of disability and rate of interest.
15. Substantial questions of law that arise for consideration herein are:
1. Whether Commissioner was justified in holding insurer liable to pay compensation even when workman was driving a 'light goods vehicle' even when he was having driving licence to drive 'light motor vehicle' without transport endorsement?
2. Whether assessment of extent of loss of earning capacity calls for interference?
3. Whether award of interest requires interference?
Re. Substantial question of law no.1:
16. In the case on hand, it is not in dispute that as on date of accident i.e., 05.06.2011, workman was having licence to drive 'light motor vehicle' marked as Ex.P.6. Insurer has produced endorsement issued by RTO, Chitradurga, which states that workman was having driving licence to drive 'light motor vehicle' valid from 05.07.2004 to 04.07.2024. Insurance policy is produced as Ex.R2-2. A perusal of same reveals that vehicle in question is a 12 TATA Ace HT LGV with Gross Vehicle Weight of 1550 kgs. Relying upon decisions, insurer contends that workman was not having valid driving licence.
• In Beli Ram's case (supra) Hon'ble Supreme Court was considering question of liability of insurer under W.C. Act in case of violation of terms and conditions of policy. Examining provisions of Section 3, it was held that presumption arises about failure of insured to take due care and caution for verifying validity of driving licence of workman entrusted to drive vehicle where workman was driving a commercial vehicle (truck) and his licence had expired three years prior to date of accident. On said reasoning, liability of insurer was set aside and employer was held liable.
• Hubert Ronald D'souza's case (supra) substantial question of law involved was whether Commissioner was justified in dismissing claim petition against insurer even though there was no material to show that driver, who was driving insured vehicle had no driving licence. This Court upon arriving at a finding that workman did not possess driving licence upheld dismissal of claim petition against insurer.
• In Smt.Zahirunnissa Dastagiri's case (supra) substantial question of law involved was regarding liability of insurer to satisfy award when deceased (workman) did not possess valid driving licence to drive auto rickshaw. Referring to decision of Hon'ble Supreme Court in National Insurance Co., Ltd., Vs. Mastan and another reported in AIR 2006 SC 577, it was held that insurer would not be liable as deceased did not possess licence. • Decision in Yashodhara B. Shetty's case (supra) was in an appeal filed under provisions of M.V.Act, wherein, it was held that in absence of evidence to discharge burden of proof of insured, MACT was justified in fastening liability upon insured absolving insurer.
• Smt. Rankibai's case (supra) substantial question of law involved was validity of judgment passed by Commissioner holding insurer liable even when there was failure to establish that deceased (workman) was having 13 valid and effective driving licence at time of accident. Referring to requirement under Rule 106 of Karnataka Motor Vehicles Rules, 1989 and issuance of notice by insurer to insured to produce driving licence, it was held that silence of insured established deceased did not have valid driving licence and on that score absolved insurer from liability.
• Smt.Pattammal's case (supra) substantial question of law involved was regarding liability of insurer to satisfy award when deceased (workman) did not possess valid driving licence to drive auto rickshaw. On perusal of records and concluding that deceased was not having driving licence, liability upon insurer was set aside. • Mohd. Nazeer's case (supra) however substantial question of law was about existence of jural relationship of employer and employee and on answering same against workman, claim petition was dismissed. • Smt.Famida's case (supra) was again a case where substantial question of law was regarding liability of insurer when driving licence of deceased (workman) had expired about 1 ½ years prior to date of accident. Relying upon Beli Ram (supra) insurer's appeal was allowed.
17. Unlike in Beli Ram's & Smt. Famida's cases (supra), instant case does not involve question of liability of insurer in case of claim petition by driver of motor vehicle whose driving licence had expired, ratio of said decision would not be fully applicable. In fact as per Ex.R2(1), driving licence of workman is valid upto 2024. Further facts of present case where workman produced his driving licence as Ex.P.6 and even insurer produced endorsement Ex.R2(1) which establishes that workman was having licence, same was valid as on date of accident, instant 14 case would be distinguishable from facts in Hubert Ronald D'souza, Smt. Zahirunnissa, Smt. Rankibai and Smt. Pattammal's cases (supra). Likewise, in Md. Nazeer's case (supra), question involved was about existence of jural relationship of employer and employee about which there is no dispute herein. Further, ratio of decision in Yashodhara Shetty's case would be eclipsed by Full Bench decision in New India Insurance Co., Ltd., Vs. Yallavva & Another reported in ILR 2020 Kar. 2239 and in any case, being a decision in a claim petition under provisions of M.V. Act, would not be squarely applicable.
18. Indeed in Rambha Devi's case, Hon'ble Supreme Court has referred ratio of decision in Mukund Dewangan's case (supra) for re-examination before larger Bench. However, it is seen that Hon'ble Supreme Court has recorded submission of learned counsel for insurance companies that compensation determined following principles laid down in Mukund Dewangan's case (supra) would be paid. There is no order not to give effect to principles in Mukund Dewangan's case. 15
19. Hon'ble Supreme Court in Mukund Dewangan's case (supra) after considering effect of amendment to provisions of M.V. Act under Amending Act No.54 of 1994, has held that wherein, any person having licence to drive 'light motor vehicle' would be competent to drive transport or goods vehicle with gross vehicle weight of less than 7500 Kgs., without possessing driver's badge or transport endorsement on driving licence. Driving Licences issued under provisions of M.V. Act can be questioned for their validity in context of provisions of enactment under which they are issued. Validity cannot be decided in context of claim being under W.C. Act. However, provisions of said Act would hold field insofar as liability is concerned as observed in Beli Ram (supra). Admittedly, workman herein was having valid driving licence to drive 'light motor vehicle' as on date of accident and gross vehicle weight of insured vehicle was 1550 Kgs. Therefore, Commissioner was fully justified in holding insurer liable to pay compensation.
16Re. Substantial question of law no.2:
20. Insofar as quantum of compensation, workman sustained fracture of right clavicle, medial malleolus of right ankle-joint apart from abrasions on right shoulder, right arm and forearm. To establish injuries, he produced Ex.P.4 - wound certificate, Ex.P.7 - disability certificate and Ex.P.8 - X-ray films. He has also examined Dr.K.B.Raghavendra, orthopedician, who deposed that due to injuries sustained in accident, workman was suffering from partial permanent physical disability to an extent of 46%. Referring to x-ray, he deposed that there was mal-union of fractured bones and fractured site caused pain, due to which he was unable to lift heavy object in his left hand and unable to walk long distances or sit for long duration. Said witness has been cross-examined by insurer. It was suggested that without any fractures being sustained by workman, he had stated in his report about mal-union of fractures and pain. However, it is elicited that fractures sustained were simple in nature and normally, such fractures heal in 6 to 8 weeks duration. Only material elicitation is that disability assessed was to affected 17 limbs, but with a clarification that in respect of whole body, it would have to be reduced by 5%. Based on said evidence, Commissioner assessed loss of earning capacity at 40%.
21. Though, learned counsel for workman submitted that permanent physical disability to an extent of 40% would lead to total loss of earning capacity in case of a driver, there is absolutely nothing stated same by PW.2- doctor. Ex.P.7 - disability certificate was marked subject to objections. But, PW.2 does not deposed about extent of disability in respect of each of fractures.
22. On other hand, though, insurer is seeking to challenge assessment of loss of earning capacity, there is hardly any cross- examination about same or even suggestions made to PW.2. Under such circumstances, assessment of loss of earning capacity by Commissioner, referring to oral evidence of PW.2 cannot be said to be either suffering from perversity or capriciousness. Same would not call for any interference. In any case, no substantial questions of law would arise for consideration.
18Re. Substantial question of law no:3:
24. In the instant case, Commissioner had awarded interest at rate of 7.5% from date of filing of claim petition till date of impugned order and thereafter at 12% from 17.11.2012 till deposit. Interest payable on award is governed by sub-Section 3(a) of Section 4A of W.C. Act, which reads as follows:
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall--
(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due;
Said provision has been interpreted by Hon'ble Supreme Court in Oriental Insurance Co., Ltd., Vs. Siby George reported in (2012) 12 SCC 540, to hold that employer would be liable to pay interest at 12% per annum from one month after date of accident, if compensation is not deposited within that time. Above provision and decision of Apex Court do not leave any room for different opinion. Impugned award being contrary to above law laid down, is liable for interference as being capricious. Substantial question of law no.3 is answered in negative, it is held that 19 workman would be entitled to simple interest at 12% per annum from one month after date of accident i.e., from 06.07.2011 till deposit.
Hence, I pass following :
ORDER MFA No.463/2013 filed by insurer is dismissed. MFA No.5953/2013 filed by workman is allowed in part only insofar as interest payable on award. It is held that workman would be entitled to simple interest at 12% per annum from one month after date of accident i.e., from 06.07.2011 till deposit.
Sd/-
JUDGE Bvk