Karnataka High Court
Oriental Insurance Co. Ltd. vs Thippeswamy And Anr. on 7 July, 2003
Equivalent citations: IV(2005)ACC554
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT K.L. Manjunath, J.
1. These two appeals are arising out of a common order passed by the Commissioner for Workmen's Compensation, Chitradurga. R-1 in these two appeals are the claimants before the Commissioner. According to them, they were working as loaders and unloaders in the tractor of R-2 on 27.2.2000 and that they have sustained certain injuries in a road traffic accident. According to them, immediately after the accident they were taken to PHC, Hiriyur. Thereafter, they were shifted to District Hospital, Chitradurga for better treatment. It is contended by the claimants that they were transporting size stones in order to construct farmhouse of their employer who is the owner of the tractor and trailer. Appellant Insurance Company resisted the claim petition. Commissioner after recording the evidence of the claimants and also Dr. Shivanna Reddy who has issued the disability certificate in favour of claimants held that the accident occurred during the course of employment and further held that the claimants were entitled for compensation of Rs. 1,28,844 and Rs. 58,565 with interest at the rate of 12 percent per annum. Being aggrieved by the award of the Commissioner, Insurance Company has come up in appeal before this Court in these two appeals.
2. According to the learned Counsel for the appellant, company is not liable to pay the compensation awarded by the Tribunal on the ground that the tractor and trailer was not used for the purpose for which it has been insured. He further contends that the injuries sustained by the claimants are non-schedule injuries and that the doctor who has been examined has not assessed the loss of earning capacity as per the provisions of Section 4(1)(c) of Workmen's Compensation Act. On these grounds, he requests this Court to allow the appeal and to set aside the order passed by the Commissioner. Per contra, learned Counsel for the claimants contends that the accident occurred while discharging the duties as loader and unloader under R-2 and that the tractor was used for the purpose of construction of farmhouse in the agricultural land of the owner of the vehicle. Therefore, construction of a farmhouse in agricultural land of the owner cannot be said that vehicle was used for the purpose in violation of the terms and conditions of the policy. He further contends that the Commissioner has awarded compensation based on the appreciation of evidence of the claimants as well as the doctor and requests this Court to dismiss the appeal.
3. In evidence, the claimants have categorically stated on oath that they sustained injuries while transporting size stones to the owner's land in order to construct a farmhouse. According to the appellant, vehicle was used for commercial purpose. Appellant's Counsel has relied upon the judgment of Madhya Pradesh High Court reported in Pappoo v. Om Prakash and a judgment of Andhra Pradesh High Court reported in New India Assurance Co. Ltd. v. Gude . Relying upon these two judgments, he requests this Court to set aside the award.
4. The questions that arise for consideration of this Court in this appeal are:
(1) Whether the use of tractor and trailer for construction of a farmhouse of the owner can be said to be used for other than agricultural operations?
(2) Whether the compensation awarded by the Commissioner is in accordance with the Workmen's Compensation Act?
5. In regard to the first question, though the appellant contends that the vehicle was used for transporting size stones for construction of building by a third party has not been proved by the Insurance Company. On oath, claimants have said that they sustained injuries while transporting size stones in order to construct farmhouse of their employer. This fact is not disputed by the employer. On the contrary, employer has supported the case of the claimants. Evidence of one Vijaya Kumar who has been examined on behalf of the appellant company cannot be considered since he has no personal knowledge about the accident. Admittedly, tractor and trailer was used for transportation of size stones in order to construct a farmhouse in the agricultural land of the employer. Farmhouse is treated as part and parcel of agricultural operations. The purpose of construction of farmhouse is to keep agricultural implements of farmers or to tether cows or to store seedlings, chemical manure, pesticides, etc., which are part and parcel of the agricultural operations. Therefore, if a tractor and trailer are used for the purpose of construction of a farmhouse in an agricultural land cannot be said that tractor and trailer were used for commercial purpose. No doubt, learned Counsel for the appellant has relied upon the judgments of High Courts of Madhya Pradesh and Andhra Pradesh. But the aforesaid judgments are of no assistance to the Counsel as facts and circumstances of this case are altogether different from the facts and circumstances of those cases. I have no quarrel over the legal proposition canvassed by the learned Counsel for appellant. Since the tractor and trailer were used for agricultural operations, those judgments will not come to the aid of the appellant. Accordingly, it is held that the use of tractor and trailer for the construction of farmhouse is to be considered only for the purpose of agricultural operations.
6. Then the next question that arises for consideration of this Court is whether the compensation awarded by the Commissioner is in accordance with the provisions of the Workmen's Compensation Act.
7. Admittedly, injuries sustained by the claimants-respondents are non-schedule injuries. While awarding compensation to the claimants in respect of non-schedule injuries as per Explanation II to Section 4(1)(c) claimants are required to examine a qualified medical practitioner in order to assess the loss of earning capacity for the purpose of Explanation II of Section 4(1)(c). In the instant case, though the claimants have relied upon the evidence of Dr. Shivanna Reddy (sic.) loss of earning capacity for the purpose of calculating the amount of 'compensation. Therefore, this Court is of the opinion that the Commissioner has committed an error in awarding compensation without there being assessment in regard to loss of earning capacity of each of the applicants. Therefore, compensation awarded by the Commissioner has to be set aside and the matter requires to be reconsidered by the Commissioner afresh.
8. In the result, these two appeals are disposed of holding that the tractor and trailer were being used for agricultural purpose and that the Commissioner has to reassess the loss of earning capacity of each of the claimants separately having due regard to Explanation II to Section 4(1)(c) of the Workmen's Compensation Act. Both the parties are at liberty to lead additional evidence considering the fact that the accident took place in the year 2000, out of the amount in deposit 30 percent of the amount with proportionate interest awarded by the Commissioner shall be released in favour of the claimant-respondents subject to the outcome of the orders of the Commissioner. Remaining amount in deposit shall be refunded in favour of appellant Insurance Company.