Rajasthan High Court - Jodhpur
Chandi Dan Charan vs Jitendra Singh & Anr on 4 September, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2410 / 2012
Chandi Dan Charan s/o. Narayandan Ji Charan, aged 45 years,
r/o. - Nagourion Ka Bera, Mandore, Joidhpur.
----Appellant
Versus
1. Jitendra Singh Parihar s/o. Sh. Mangilal Parihar, r/o.
Nagourion Ka Bera, Jodhpur.
2. The New India Assurance Co. Ltd., Divisional Office, I Abhay
Chambers, Jalori Gate, Jodhpur.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 81 / 2013
The New India Assurance Co. Ltd., through Divisional Manager,
Divisional Office, 1st Abhay Chambers, Jalori Gate, Jodhpur. (Raj.)
----Appellant
Versus
1. Chandi Dan Charan s/o. Shri Narayan Dan Charan, r/o. -
Nagourion Ka Bera, Mandore, Jodhpur.
2. Jitendra Singh Parihar s/o. Mangi Lal Parihar, r/o. Nagourion
Ka Bera, Jodhpur.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. B.L. Tiwari (for claimant)
For Respondent(s) : Mr. Dhanpat Choudhary (for Insurer)
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Reportable Judgment 04/09/2017 These appeals are directed against the order dated 20.09.2012 passed by the Commissioner, Employee's Compensation, Jodhpur ('the Commissioner), whereby the Commissioner has awarded compensation to the tune of (2 of 9) Rs.4,61,136/- alongwith interest @ 12% per annum from the date of filing of application i.e. 07.09.2010 and has imposed penalty to the tune of Rs.10,000/- on the employer. The Insurance Company has been directed to make payment of the amount of compensation and interest.
While the claimant is aggrieved against the award of interest from the date of application, as it is claimed that the same should have been awarded from the date of accident, the Insurance Company is aggrieved against the award on the ground that the injury to claimant did not arise out of and during the course of his employment and the quantum of compensation as it is submitted that the claimant suffered 30% disablement only, however, the Commissioner has taken the disablement at 100% and has awarded compensation.
Initially, the application for compensation was filed by the claimant - Chandi Dan Charan before the Motor Accident Claims Tribunal, Jodhpur ('the Tribunal') seeking compensation for the injuries/permanent disablement suffered by him.
The application was rejected by the Tribunal on 13.07.2010 on coming to the conclusion that there was no negligence on part of any of the parties impleaded and, therefore, the application under Section 166 of the Motor Vehicles Act, 1988 was not maintainable.
Whereafter the present application before the Commissioner was filed on 07.09.2010, inter alia, with the averments that the (3 of 9) claimant was employed on Bus No.RJ-19-P-1817 as driver. On 05.06.2005, when the Bus reached Bhatiya Chauraha, Ratanada, certain students on demanding fare, started beating the conductor Mahendra Singh with sticks and iron rods and when the claimant tried to intervene, he was also given beating, resulting in, injuries to his right eye, right shoulder and other parts of the body, as a result of which, he lost sight in right eye forever. Based on the said averments, compensation to the tune of Rs.8,07,000/- alongwith interest @ 12% per annum was claimed.
The application was contested by the Insurance Company as well as the owner. The owner submitted that the liability to pay compensation was that of the Insurance Company. The Insurance Company contested the claim by indicating that the accident did not arise out of and in the course of the employment, therefore, the Insurance Company was not liable.
On hearing the parties, after evidence was led, the Commissioner came to the conclusion that the delay in filing the application was liable to be condoned, despite dismissal of application by the Tribunal, the claim application under the Employee's Compensation Act, 1923 ('the Act') was maintainable. The accident arose out of and in the course of employment, the claimant suffered permanent loss of vision on account of injuries suffered by him during the altercation, which took place. The Commissioner then came to the conclusion that though in Part-II of Schedule-I, the percentage of loss of earning capacity for the (4 of 9) loss of vision of one eye is indicated as 30%, as the claimant cannot undertake the work as a driver, the loss was 100% and accepting the monthly salary of the claimant at Rs.4,000/- and applying a factor of 192.14, awarded compensation to the tune of Rs.4,61,136/-, awarded interest @ 12% per annum from the date of application i.e. 07.09.2010 till the actual compensation was paid.
It is submitted by learned counsel for the appellant-claimant that the Commissioner committed error in awarding interest from the date of application and not from the date of accident, which was 05.06.2005 when the accident took place, resulting in, the appellant losing vision in his one eye. It was submitted that the provisions of Section 4A(3) of the Act envisage the award of interest from the date of accident and not from the date of application. Reliance in this regard was placed on judgment of Hon'ble Supreme Court in Saberabibi Yakubbhai Shaikh v. National Insurance Co. Ltd. & Ors.: (2014) 2 SCC 298.
Learned counsel appearing for the Insurance Company besides contesting the plea regarding the payment of interest submitted that that the accident did not occur in the course of employment as admittedly the altercation took place out side the vehicle and, therefore, the claimant was not entitled to award of any compensation. It was argued that as the appellant-claimant had approached the Commissioner after a passage of five years, the Insurance Company cannot be saddled with the liability for (5 of 9) payment of interest for the said period. It was also submitted that admittedly as per Part-II of Schedule-I of the Act, the percentage of loss of earning capacity for the loss of vision in one eye has been indicated as 30% and as the claimant despite loss of vision in one eye is capable of undertaking other work, the determination by the Commissioner awarding compensation at 100% is factually incorrect.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
So far as the maintainability of the application for compensation is concerned, admittedly the altercation took place when certain students refused to pay the fare and when the same was demanded, they started beating the conductor of the bus and then the claimant-driver of the bus intervened, wherein he suffered the injury to his eye. The said altercation and/or the intervention by the driver of the bus necessarily was for protecting the interests of the conductor, the bus and/or the owner and, therefore, in those circumstances, it cannot be said that the injury suffered by the claimant did not arise out of and in course of his employment.
This Court in National Insurance Co. Ltd. v. Smt. Dhanki & Ors.: 2014 ACJ 2432, wherein the deceased was employed as a driver on the insured vehicle, when the driver was driving the vehicle on the highway, another vehicle overtook the vehicle and hit a military truck and, thereafter, stopped at a distance. On (6 of 9) account of the said accident between another vehicle and the military truck, the driver stopped his truck and the Army personnel from the military truck approached him when he tried to flee away from his vehicle, the Army personnel caught him and gave severe beating, resulting in his sustaining injuries, to which, he succumbed during treatment, when the Insurance Company claimed that it cannot be said that the driver died on account of accident arising out and during the course of his employment, laid down as under:-
"The Hon'ble Supreme Court in Rita Devi (Smt.) & Ors. v. New India Assurance Co. Ltd. & Anr. : (2000) 5 SCC 113 while dealing with the case under the Motor Vehicles Act, 1988 and taking into consideration the provisions of Workmen's Compensation Act, 1923 came to the conclusion that death of the driver was caused accidentally in the process of committing theft of the autorickshaw would also amount to death due to accident arising out of the use of motor vehicle.
In the present case, when the deceased Deva Ram was driving the tanker and another tanker over took him and struck the military vehicle, the Army personnel for whatever reason gave severe beating to the deceased as he was driving the tanker on the Highway and happened to be present at the site of accident, and the deceased suffered grievous injuries and died on account of such injuries, such incident/accident can only said to have arisen during the course of employment of deceased Deva Ram and arising out of his employment only as it is only on account of he is working as driver of the said tanker that he was passing on the highway and unfortunately got severe beating from the Army personnel on account of his being driver of the tanker."
In view thereof, the plea raised by the Insurance Company that the accident did not arise out of and/or during the course of employment cannot be accepted.
In so far as the determination of the disability of the claimant at 100% by the Commissioner is concerned, the (7 of 9) issue raised is no more res integra as in the case of Pratap Narain Singh Deo v. Shrinivas Sabata : 1976 ACJ 141, Hon'ble Supreme Court laid down that a total disablement would result, which renders a person incapable of performing duties, which he was performing at the time of accident. The said view was followed in the case of K. Janardhan v. United India Insurance Co. Ltd.: 2008 ACJ 2039, wherein on amputation of the right leg of a Tanker- driver, it was laid down that the same would amount to 100% disablement. Again in the case of Jakir Hussein v. Sabir : 2015 ACJ 721, Hon'ble Supreme Court in case where the right hand of the claimant-driver was completely crushed and deformed, when the disablement was determined at 55%, laid down that the same would be 100%.
The submission that as despite losing vision in one eye, the appellant is capable of undertaking some other work, therefore, it cannot be said that he suffered 100% disablement, has no substance in view of the law laid down by Hon'ble Supreme Court, wherein the test essentially pertains to whether the claimant is able to undertake the same work, which he was undertaking though with reduced ability and as after losing vision in one eye, the appellant cannot undertake the work as a driver, the disablement is 100% and, therefore, the finding of the Commissioner in this regard cannot be faulted.
The reliance placed by the Insurance Company on judgment in this case of Palraj v. The Divisional Controller, NEKRTC : 2011 (8 of 9) R.A.R. 154 (SC), has no application to the facts of the present case as in the said case despite suffering 85% disablement, the claimant was appointed as peon on the same salary, which is not the case herein.
So far as the award of interest on the amount of compensation is concerned, the said issue also is no more res integra as Hon'ble Supreme Court in the case of Saberabibi Yakubbhai Shaikh (supra), after taking into consideration conflicting judgments of Hon'ble Supreme Court in the case of Pratap Narain Singh Deo (supra) and Kerala State Electricity Board v. Valsala K. & Anr.: AIR 1999 SC 3502, came to the conclusion that the interest @ 12% per annum has to be paid from the date of accident. The submission made by learned counsel for the respondent-Insurance Company that as in the present case, the application was filed after five years from the date of accident after the application was rejected by the Tribunal and, therefore, the Insurance Company cannot be saddled with the said liability is concerned, once the application filed by the appellant seeking condonation of delay was accepted by the Commissioner and the application was decided on merits, the provisions of Section 4A(3) would apply and the said provision does not envisage any exception in a case where the delay has been condoned and in those circumstances, the award of interest by the Commissioner from the date of filing application cannot be sustained.
(9 of 9) Consequently, the appeal filed by the appellant-claimant Chandi Dan Charan, is allowed, the order dated 20.09.2012 passed by the Commissioner is modified to the extent that the claimant would be entitled to interest @ 12% per annum from after one month of the date of accident i.e. 05.07.2005 till the date of actual payment of compensation as awarded by the Commissioner. The appeal filed by the Insurance Company has no substance, the same is, therefore, dismissed.
The amount of interest as well as any other amount remaining outstanding in view of the interim order granted by this Court, be paid by the Insurance Company within a period of four weeks.
(ARUN BHANSALI)J. PKS-115 & 117