Karnataka High Court
Sri Poojari Thimmaiah vs Sri Habibulla on 22 February, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:7773
MFA No. 471 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 471 OF 2022 (ECA)
BETWEEN:
SRI POOJARI THIMMAIAH
S/O HANUMANTHAPPA
AGED ABOUT 48 YEARS
R/AT HULIYAR ROAD
HIRIYUR TOWN
CHITRADURGA DISTRICT
...APPELLANT
(BY SRI A.K.BHAT FOR SRI SATHISHA T.,ADVOCATES)
AND:
1. SRI HABIBULLA
MAJOR
OWNER OF THE LORRY
BEARING REG NO CTX 6133
R/AT 3RD CROSS
HULIYAR ROAD ,HIRIYUR TOWN
CHITRADURGA DISTRICT
2. THE BRANCH MANAGER
Digitally signed NATIONAL INSURANCE COMPANY LTD
by
GAVRIBIDANUR BRANCH OFFICE
SUBRAMANYA LAXMI BAZAAR, CHITRADURGA
GUPTA
SREENATH
Location: HIGH NOW REP BY THE REGIONAL MANAGER
COURT OF THE NATIONAL INSURANCE COMPANY LTD
KARNATAKA REGIONAL OFFICE
NO 144, 2ND FLOOR
SUBHRAM COMPLEX , M G ROAD
BENGALURU 560 001
...RESPONDENTS
(NOTICE SERVED TO R-1; MS.GOWHAR UNNISA., ADVOCATE
FOR R-2)
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NC: 2024:KHC:7773
MFA No. 471 of 2022
THIS MFA IS FILED U/S 30(1) OF EMPLOYEE
COMPENSATION ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 22.02.2021 IN ECA NO.46/2014 PASSED
BY IN THE COURT OF SENIOR CIVIL JUDGE AND
COMMISSIONER FOR EMPLOYEES COMPENSATION ACT,
HIRIYUR AND FASTEN THE LIABILITY ON THE 2ND
RESPONDENT AND ALSO SEEKING FOR ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission, with the consent of learned counsel for the appellant as well as learned counsel for Respondent No.2, the matter is taken up for final disposal.
2. This appeal is preferred by the appellant - petitioner challenging the judgment & award dated 22nd February 2021 passed in ECA No.46/2014 by the Court of Senior Civil Judge and Commissioner for Employee's Compensation Act, Hiryur (for short, 'trial Court'). This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal and to -3- NC: 2024:KHC:7773 MFA No. 471 of 2022 fasten the liability on respondent No.2/insurer to pay the compensation.
3. Parties to the appeal shall be referred to as per their status before the Tribunal.
4. Brief facts of the case are as under:
The petitioner claims to be a Hamali in the lorry bearing registration No.CTX-6133 owned by Respondent No.1 since six months prior to occurrence of the accident. On 28.11.2004, on the instructions of respondent No.1, petitioner alongwith another person by name Krishnappa were travelling in the lorry to unload the stones and at 8.00 p.m. when the lorry reached near Uduvalli, another lorry bearing registration No.HR.38.H.5691 driven by its driver in a rash and negligent manner and in a high speed came from the opposite direction and dashed against the lorry in which the petitioner was traveling. Due to the impact of the accident, the petitioner suffered fracture to his right tibia and compressed fracture of L-1 vertebra so also bleeding injuries all over the body. He was -4- NC: 2024:KHC:7773 MFA No. 471 of 2022 immediately shifted to Government hospital, Hiriyur, where he took treatment as in-patient for one week and spent a sum of Rs.15,000/- towards medical expenses. It is stated that due to the fractures suffered in the accident, the petitioner is unable to walk, sit, stand, squat and bend his body properly.
4.1 It is pleaded that the petitioner was earning a sum of Rs.4,000/- per month as salary and Rs.100/- per day as bata from respondent No.1. Due to the injuries suffered in the accident and having become disabled, he filed the claim petition claiming compensation from the respondent No.1/employer and respondent No.2/insurer.
4.2 On service of notice, respondents appeared through their respective counsels and filed separate written statements. Respondent No.1 in his written statement admitted the relationship of employer and employee and that the petitioner was working as Hamali/loader/unloader in his lorry bearing registration No.CTX 6133 and that he was paying salary of Rs.4,000/- -5-
NC: 2024:KHC:7773 MFA No. 471 of 2022 per month. But, however it is pleaded that due to the vehicle being insured with respondent No.2, respondent No.2 will have to indemnify the respondent No.1. After transfer of case to the trial Court, respondent No.1 did not appear and he was placed exparte and respondent No.2 filed the written statement denying the claim of the petitioner including age, avocation, income and the jural relationship of the employer and employee between respondent No.1 and the petitoner. It is further pleaded that insurance company is not liable to pay the compensation for the reason that the driver of the lorry did not possess valid and effective Driving Licence and violated the terms and conditions of the policy. Infact, the driver violated Rule 100 of the Motor Vehicles Act. Hence sought for dismissal of the claim petition.
4.3 On the basis of the pleadings, the trial Court framed the relevant issues for consideration. -6-
NC: 2024:KHC:7773 MFA No. 471 of 2022 4.4 In order to substantiate the issues and establish the case, the petitioner examined PWs.1 to 4 and got marked the documents as per Ex.P1 to Ex.P14. On the other hand, the respondents examined RWs.1 and 2 and got marked Ex.R1 to Ex.R8.
4.5 On consideration of the material evidence, both oral and documentary and on hearing submissions of learned counsel for both the parties, the trial Court awarded compensation of Rs.84,260/- with interest at 12% per annum from the date of petition till realization.
4.6 Being aggrieved by the meager compensation awarded by the trial Court, the petitioner is before this Court seeking enhancement of compensation.
5. This Court while admitting the appeal formulated the following substantial questions of law:
i) Whether the trial Court was justified in fastening the liability against the 1st respondent/owner of the vehicle despite the Insurance policy being in force ?-7-
NC: 2024:KHC:7773 MFA No. 471 of 2022
ii) Whether the trial Court was justified in taking the wages of the appellant at Rs.4,000/- instead of Rs.8,000/- per month ?
iii) Whether the trial Court has committed an error in assessing the disability at 20% as against 45% opined by the doctor in the facts and circumstances of the case ?
iv) Whether the trial Court committed an error in granting interest at 12% per annum from the date of petition, rather than awarding interest from the date of accident ?
6. It is the vehement contention of leaned counsel for the appellant that the trial Court has committed gross error in not considering the materials available on record, both oral and documentary in the proper perspective. The trial Court awarded meager compensation without taking into consideration the admission made by respondent No.1/employer with regard to the jural relationship of employer and employee so also the income of the appellant. He further contends that the trial Court has -8- NC: 2024:KHC:7773 MFA No. 471 of 2022 committed gross error in fastening liability against the 1st respondent/owner of the offending vehicle in the absence of cogent and convincing evidence. It is further contention of learned counsel that the trial Court has committed gross miscarriage of justice in not awarding interest at 12% per annum from the date of accident, whereas it awarded from the date of filing of the petition. Therefore, the appellant is before this Court raising substantial questions of law which require to be considered by this Court.
7. Per contra, learned counsel representing respondent No.2/insurer vehemently contends that the trial Court has passed a well reasoned order dismissing the petition as against the insurance company and correctly fastened the liability against respondent No.1/owner of the offending vehicle, which does not call for interference. It is also contended by the learned counsel for the insurance company that the respondent no.1/employer has deliberately remained absent before this Court and no appeal is preferred by him questioning the judgment and -9- NC: 2024:KHC:7773 MFA No. 471 of 2022 award passed by the trial Court. Therefore, he contends that the judgment rendered by the trial Court is sustainable in law and the same requires to be affirmed. It is further contention of learned counsel that the trial Court has taken into consideration all the materials placed before the Court and the principles enunciated in the judgment of the Hon'ble Apex Court in the case of Beli Ram -vs- Rajinder Kumar and Anr. reported in AIR 2020 SC 4453 and the liability rightly fixed on the employer/respondent No.1 and the insurance company is not liable to pay the compensation. On these grounds, he seeks to dismiss the appeal.
8. I have given my thoughtful consideration to the arguments advanced by learned counsel for the appellant and learned counsel for the respondent/insurance company.
9. Perused the impugned judgment and award and the documents - Ex.P1 to Ex.P14. Out of them, Ex.P1 to Ex.P7 are the police records which clearly depict
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NC: 2024:KHC:7773 MFA No. 471 of 2022 registration of the FIR and laying of the charge sheet against driver of the offending lorry bearing registration No.HR.38.H.5691, which came from the opposite direction and dashed against the vehicle in which the petitioner was traveling. Therefore, negligence, occurrence of the accident and involvement of the vehicle and the injuries sustained by the petitioner are established by the police records.
10. Now coming to the question as to whether the appellant is an employee, for which respondent No.1 in his written statement admitted the jural relationship of the employer and employee and that the petitioner was working as Hamali/loader/unloader in his lorry bearing No.CTX 6133 and also to the extent that respondent No.1 was paying salary of Rs.4,000/- per month to the petitioner. When there is a clear admission by respondent no.1/owner/employer, the question of going into further details would not arise. Hence the jural relationship of employer and employee is proved by the petitioner.
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NC: 2024:KHC:7773 MFA No. 471 of 2022
11. The next question that would arise for consideration is as to whether the accident occurred in the course of petitioner's employment with the respondent No.1. This again factually has been proved by the petitioner before the trial Court. Based on the oral and documentary evidence on record, the trial Court has rightly come to the conclusion that the petitioner was working as coolie in the lorry owned by respondent No.1 and he met with an accident near Uduvalli turn while he was proceeding towards steel plant to unload stones. The same is not disputed by the employer. Therefore, the aspect of the accident arising out and in the course of employment is clearly established.
12. The another aspect to be decided is what would be the compensation that requires to be awarded in the present case ?
13. The petitioner has been able to establish by way of admission of the respondent No.1 that he was getting salary of Rs.4,000/- per month and accordingly, the trial
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NC: 2024:KHC:7773 MFA No. 471 of 2022 court has taken the salary at Rs.4,000/- per month. However, refused to take the bata charges which does not call for interference as the same is correct.
14. The doctor has been examined as PW.3. He has issued disability certificate of the petitioner which is marked as Ex.P8 and he has opined that the petitioner has sustained permanent physical disability to an extent of 45%. Due to the injuries sustained, he was not able to do work as he was doing prior to the accident. He cannot do the work of a coolie/Hamali in view of the compression fracture of L1 vertebra and it affects lifting of weight. The trial Court has taken into consideration the evidence adduced by the doctor, but did not agree with the disability opined by the doctor at Ex.P8 and has assessed the disability at 20% to the whole body.
15. The assessment made by the trial Court with regard to disability at 20% to the whole body is arbitrary and no cogent material is placed before the Court by the respondent No.1/employer or respondent No.2/insurer to
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NC: 2024:KHC:7773 MFA No. 471 of 2022 contradict the opinion expressed by the doctor/PW.3, who is an expert in the field and opined the disability of the petitioner to an extent of 45% to the whole body. According to PW.3/doctor the petitioner has sustained fracture of inter condyler of right tibia and compression fracture of L1 vertebra and it affects lifting of weight. Unless the contra material is produced before the Court that there is no difficulty in lifting the weight or loading/unloading, it cannot be construed that he is capable of doing the work of Hamali in the same manner as he was doing prior to occurrence of the accident. In the present case, no such contra material produced before the Court to show that the petitioner is capable of lifting weight as he was doing prior to the occurrence of the accident. This Court is conscious of the fact that it is dealing with the case of employee under the Employee's Compensation Act for the relief of compensation for the accident occurred during the course of employment. Considering the age, avocation and nature of the injuries sustained by the petitioner and on appreciation of
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NC: 2024:KHC:7773 MFA No. 471 of 2022 evidence of the doctor, I deem it appropriate to assess the functional disability of the petitioner to be 45%.
16. In view of the fact that Rs.4,000/- is taken as the salary, 60% of Rs.4,000/- will have to be taken in view of Section 4(b) of the Employee's Compensation Act, which comes to Rs.2,400/- and the relevant factor applicable in the present case would be 175.54 and the disability as assessed by this Court at 45% will have to be taken. Therefore, the appellant would be entitled to compensation of Rs.1,89,583/- (Rs.2,400 x 175.54 x 45%) as against Rs.84,260/- awarded by the trial Court.
17. The trial court has awarded interest at 12% per annum from the date of the petition. I am in agreement with the learned counsel for the appellant that interest ought to have been awarded at 12% from the date of the accident. Therefore interest is to be awarded at 12% from the date of accident rather than from the date of petition.
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NC: 2024:KHC:7773 MFA No. 471 of 2022
18. Coming to the next question raised by the petitioner with regard to fastening of liability against the insurance company, it is seen that the trial Court has considered at length with regard to violation of the terms and conditions of the policy by the respondent no.1/owner. Infact, the driver of the lorry did not possess valid and effective Driving Licence as on the date of occurrence of the accident and the appellant was a Hamali/worker in the lorry owned by respondent No.1. Therefore, the trial Court rightly fixed the liability against respondent No.1/employer of the petitioner. In my opinion, the same does not call for interference. However, in view of the policy being in force as on the date of occurrence of the accident, the insurance company cannot absolve its liability of making payment and recovering the same from the 1st respondent.
19. Accordingly, all the substantial questions of law raised in the present appeal are answered.
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20. In view of the above discussion, I pass the following:
ORDER
i) The appeal is allowed-in-part.
ii) The impugned judgment & award dated 22nd February 2021 passed in ECA No.46/2014 by the Senior Civil Judge & Commissioner for Employee's Compensation Act, Hiriyur, is modified.
iii) The appellant/petitioner is entitled to compensation of Rs.1,89,583/- as against Rs.84,260/- awarded by the trial Court alongwith interest at the rate of 12% per annum from the date of accident i.e, 28.11.2004 till realization. However, the appellant/petitioner would not be entitled to the interest for the delayed period in filing the claim petition.
iv) The liability is fixed on respondent No.1/owner of the offending vehicle.
However, the policy being in force,
respondent No.2/insurer shall pay the
compensation and would be at liberty to recover the same from respondent No.1/owner of the offending vehicle.
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NC: 2024:KHC:7773 MFA No. 471 of 2022
v) The compensation amount shall be paid by the respondent No.2/insurer within a period of four weeks from the date of receipt of copy of this judgment.
vi) The interest shall be paid by the respondent No.1/owner of the offending vehicle.
vii) The compensation amount shall be released in favour of appellant upon proper identification.
viii) Registry is directed to transmit the original records to the trial Court forthwith.
Sd/-
JUDGE GSS List No.: 1 Sl No.: 55