Bangalore District Court
Jagadisha.A vs The Director/Authorised ... on 18 April, 2017
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE. (SCCH-11)
DATED THIS 18th DAY OF APRIL, 2017
PRESENT: SMT. B.N.SUJATHA, B.Sc., LL.B.,
I ADDL.SMALL CAUSES JUDGE & MACT
E.C.A No.383/2014
PETITIONER: Jagadisha.A,
S/o.Ashwath Narayanappa,
Aged about 28 years.
Presently Residing at
Srikanthapura, Achepalya,
Nagasandra Post,
BENGALURU - 560 073.
(By Pleader Sri.R.Shivakumar.....Advocate)
- V/S -
RESPONDENTS: 1. The Director/Authorised Representative,
M/s.Prerana Motors Pvt., Ltd.,
No.132, Kantha Court,
Lalbagh Road,
BANGALORE - 560 027.
(By Sri.K.R.Anand.......................Advocate)
2. The Branch Manager,
National Insurance Company Limited,
Office - 1, Unity Building Annexe,
3rd Floor, 72, Kalingarao (Mission) Road,
BANGALORE - 560 027.
(By Sri.S.R.Murthy.....................Advocate)
(SCCH-11) 2 ECA 383/2014
3. The Proprietor/Authorised Representative,
M/s.Vasanth Caravan Transport,
The Transport Contractors,
No.13, 'Sri Honneshwara Nilaya',
5th Cross, Defence Colony,
Kidzee Road, Hesaragatta Main Road,
BANGALORE - 560 073.
(By Sri.Syed Basheer Mohd.........Advocate)
JUDGMENT
This petition is filed by the petitioner under Section 22 of Workmen's Compensation Act against the respondents claiming compensation of Rs.15,00,000/- for the injuries sustained by the petitioner in the accident that occurred on 12.02.2014 during the course of his employment.
2) The case of the Petitioner in brief is as hereunder:
It is averred that the 1st respondent is the owner of the New Tata Super Ace Tempo bearing Regn.No.KA-01-TC-110 and the same was duly insured with the respondent No.2 under the policy No.60200031136400002300 valid from
13.08.2013 to 12.08.2014. The petitioner was an employee (SCCH-11) 3 ECA 383/2014 and was working as a driver and was paid salary of Rs.9,000/- per month. It is averred that Petitioner was entrusted the work of Driver to the vehicle bearing Regn.No.KA-01-TC-110.
That on 12.02.2014 at about 12.30 pm., the petitioner was driving the above said vehicle on Nelamangala- Doddaballapura Road, near Kadanuru cross, Madure Hobli, D.B.Pura Taluk, Bangalore District. At that time, all of sudden the Tyre of the Tata Ace Tempo got burst as a result of which Petitioner lost control over the tempo and dashed against the road side Tree. Due to the impact the Petitioner sustained grievous injuries to his legs, head, back region, hip region, face, hand and all over the body. It is averred that the said accident took place during the course of his employment. The petitioner was aged 28 years at the time of accident and he was having valid diving licence to driver LMV Transport vehicle and PSV bus valid up to 19.05.2016. It is averred that Doddabelavangala police, Bangalore Rural District has (SCCH-11) 4 ECA 383/2014 registered case in CR.No.0037/2014 for the offence punishable under section 279, 337 of I.P.C. It is averred that immediately after the accident the petitioner was shifted to Doddaballapur Government Hospital for First Aid Treatment thereafter he was shifted to J.P.Hospital, Bangalore for better treatment where he took treatment as inpatient from 12.02.2014 to 18.02.2014. The petitioner had sustained Compound fracture both bones right leg with traumatic amputation of great toe left. During the course of treatment, surgery-CRIF with IMIL Nailing right Tibia with disarticulation of great toe at MTP joint left foot under SA done. Fracture reduced over guide wire and segmental fixed with 9 X 32 nail and Proximal, distal locking was done and wound closed in large done. Partially amputated great toe disarticulated at MTP joint sutured and debridement done. It is averred that the petitioner has spent a sum of Rs.60,000/- towards treatment, medicines, conveyance and nourishment. He has suffered heavy pain, mental shock and agony and caused permanent disablement. He is the only breadwinner (SCCH-11) 5 ECA 383/2014 of the entire family. At present he is unable to do any work due to the accidental injuries and the petitioner's earning source has come to stand still. The incident occurred during the course of employment. Hence, the respondents No.1 and 2 are jointly and severally liable to pay the compensation. On these grounds Petitioner has filed the above petition for the reliefs stated supra.
3) In pursuance of summons at the first instance Respondent No.1 and 2 have appeared and filed separate objection statement. After amendment Respondent No.3 appeared and has filed objection statement.
4) The respondents No.1 and 2 have denied the petition averments in toto. Respondent No.2 has admitted the issuance of policy in favour of Respondent No.1 in respect of the vehicle bearing Reg.No.KA-01-TC-110. Respondent No.1 has categorically denied that the Petitioner was entrusted with the work of driving to the said vehicle. It is contended that the Respondent No.1 is the dealer of M/s. (SCCH-11) 6 ECA 383/2014 TATA motors and engaged in sales and services of the said company vehicles. The Respondent No.1 had engaged the services of 3rd Respondent for which S.K.Vasant is the proprietor, for movement of vehicles from one place to another in and outside Bangalore city. It is contended that for such services rendered on contract basis engaging their drivers, 3rd Respondent placed invoice of the bill to 1st Respondent including diesel consumption charges, driver bata and bus fare. It is contended that there is no privity of contract as employer and employee between this Respondent and Petitioner.
5) It is contended by 3rd Respondent that he is the transport contractor and in pursuance with contract with 1st Respondent this Respondent used to send available drivers usually engaged by this Respondent on daily basis. No driver is on permanent basis. The Petitioner is a regular employee with Srushti Group of Institution as driver. As and when he is free he used to call on this Respondent seeking causal (SCCH-11) 7 ECA 383/2014 nature of job and this Respondent to help him out used to engage whenever there was a need for a driver to carry out temporary nature of job available with this Respondent. It is contended that on such occasion on 12.02.2014 Petitioner was engaged on daily basis and was assigned to 1st Respondent in pursuance of the contract with this Respondent to supply driver for movements of vehicles from one place to another. It is contended that 1st Respondent asked the Petitioner to transport a demo vehicle bearing Reg.No.KA-01-TC-110 with valid insurance cover made with 2nd Respondent. It is contended that there is no relationship of employer and employee between this Respondent and Petitioner. On these grounds all the Respondents have sought for dismissal of the petition.
6) On the basis of the above rival pleading the following issues have been framed:
1) Whether the petitioner proves that he has sustained grievous injuries as mentioned in wound certificate, in a road traffic accident on (SCCH-11) 8 ECA 383/2014 12.02.2014 at about 12.30 pm., during the course of employment in vehicle bearing Regn.No.KA-01-
TC-110 due to the said vehicle tyre was burst on Nelamangala-Doddaballapura road near Kadanuru cross, Madure hobli, D.B.Pura taluk, Bangalore ?
2) Whether the petitioner proves that he was the employee of the respondent No.1 as on the date of alleged accident?
3) Whether petitioner is entitled for any compensation? If so, to what extent and from whom?
4) What Order to Award?
7) In order to prove the case of the Petitioner, Petitioner has got himself examined as PW.1 and produced documents marked as Ex.P.1 to 13. The Petitioner has examined PW.2 and has produced Ex.P.14 to 16 and Petitioner closed his side of evidence. On the other hand Respondents No.1 to 3 have got examined themselves as RW.1 to RW.3 and have produced 9 documents and the same are marked as Ex.R.1 to 9 and closed their side evidence.
8) Heard arguments.
(SCCH-11) 9 ECA 383/2014
9) My findings on the above issues are as under:
Issue No.1 & 2 In the Affirmative;
Issue No.3 Partly Affirmative;
Issue No.4 As per final order, for
the following :
REASONS
10) ISSUE Nos.1 AND 2: Since these issues are inter
related to each other they are taken up together for discussion and to avoid the repetition of facts.
It is the case of petitioner that on 12.02.2014 at about 12.30 pm., the petitioner was driving the New Tata Super Ace Tempo bearing Regn.No.KA-01-TC-110 on Nelamangala- Doddaballapura Road, near Kadanuru cross, Madure Hobli, D.B.Pura Taluk, Bangalore District. At that time, all of sudden the Tyre of the Tata Ace Tempo got burst as a result of which Petitioner lost control over the tempo and dashed against the road side Tree. Due to the impact the Petitioner sustained grievous injuries to his legs, head, back region, hip (SCCH-11) 10 ECA 383/2014 region, face, hand and all over the body. It is averred that the 1st respondent is the owner of the New Tata Super Ace Tempo bearing Regn.No.KA-01-TC-110 and the same was duly insured with the respondent No.2 under the policy No.60200031136400002300 valid from 13.08.2013 to 12.08.2014. It is averred that the petitioner was an employee and was working as a driver and was paid salary of Rs.9,000/- per month. It is averred that Petitioner was entrusted the work of Driver to the vehicle bearing Regn.No.KA-01-TC-110. It is averred that the said accident took place during the course of his employment. The petitioner was aged 28 years at the time of accident and he was having valid driving licence to driver LMV Transport vehicle and PSV bus valid up to 19.05.2016. It is averred that Doddballapura police have registered a case against the petitioner in crime No.037/2014 for the offences punishable under section 279, 337 of I.P.C.
(SCCH-11) 11 ECA 383/2014
11) The petitioner had filed the claim petition before labour commissioner for employees compensation and as per the Government notification vide No.LD 159 LET 2013 dated 23.01.2014 the petition is transferred to this court.
12) The petitioner in order to substantiate his case has got himself examined as PW.1 and has filed affidavit in lieu of his examination in chief. In the affidavit he has reiterated to contentions urged in the petition. In his further examination in chief he has produced complaint, F.I.R, mahazar, wound certificate, IMV report, charge sheet, Challen licence, Salary slip, letter issued by BMN public school, Form No.19, 3 photos and CD and the same are marked as Ex.P.1 to 11 respectively. In the course of cross-examination by the learned counsel appearing for respondents No.1 and 3 it is elicited that vehicle bearing No.KA-01-PC-110 belongs to 1st respondent. It is elicited that this witness is working as driver under 3rd respondent and not under 1st respondent. This witness has stated that he has produced Ex.P.8/salary (SCCH-11) 12 ECA 383/2014 certificate/termination letter issued by proprietor for M/s.Vasant Caravan Transport to show that he was working as driver in the company of respondent No.3. It is denied suggestion that £Á£ÀÄ BNM School £À°è PÉ®¸À ªÀiÁqÀÄwÛzÀÄÝ ¸ÀªÀiAiÀÄÁªÀPÁ±À ¹PÁÌUÀ ªÀ¸ÀAvï PÁgÁªÀ£ï£À°è PÉ®¸À ªÀiÁqÀÄwÛzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è . It is further elicited that £Á£ÀÄ BMN ¥À©èPï ±Á¯ÉAiÀÄ°è ZÁ®PÀ£ÁV ¢£ÁAPÀ 20.12.2014 gÀ ªÀgÀUÉ PÉ®¸À ªÀÄÁrgÀÄvÉÛÀÃ£É JAzÀgÉ ¸Àj. It is admitted suggestion that this witness has taken demo vehicle at the time of accident. In the course of cross- examination by the learned counsel appearing for respondent No.2 it is elicited that C¥ÀWÁvÀªÁzÁUÀ £Á£ÀÄ ¥ÉæÃgÀuÁ ªÉÆÃmÁgìïgÀªÀgÀ PÀqÉ ¸ÀÆ¥Àgï mÁmÁ J¹ ªÁºÀ£ÀªÀ£ÀÄß £ÀqɸÀÄwÛzÉÝ. It is further elicited that this witness do not have any record to show that he was employed by respondent No.1 Prerana Motors Pvt. Ltd., but has stated that respondent No.3 had appointed him and had deputed to Prerana Motors Pvt. Ltd., The relevant portion of the cross- examination reads as follows ªÀ¸ÀAvï PÁgÁªÁ£ï mÁæ£ïì¥ÉÇÃmïð £À£ÀߣÀÄß £ÉêÀÄPÀ ªÀiÁrPÉÆAqÀÄ ¥ÉæÃgÀuÁ ªÉÆÃlgï ¥Éæ.°. UÉ PÀ¼ÀÄ»¹PÉÆnÖzÀÝgÀÄ. This witness do not have record to show the above but has stated that this (SCCH-11) 13 ECA 383/2014 witness was sent on telephone made by respondent No.1. It is admitted suggestion that this witness was paid by respondent No.3. It is elicited that £À£ÀUÉ ªÀ¸ÀAvï PÁgÁªÁ£ï mÁæ£ïì¥ÉÇÃmïð £ÉêÀÄPÀ ªÀiÁrPÉÀÆArzÀÝgÀÄ CªÀgÀÄ KdÉAmï EzÀÄÝ CªÀgÀÄ ¥ÉæÃgÀuÁ ªÉÆÃlÁgìïUÉ PÀ¼ÀÄ»¸ÀÄwÛzÀÝgÀÄ ¥ÉæÃgÀuÁ ªÉÆÃlgïgÀªÀgÀÄ ªÀ¸ÀAvï PÁgÁªÁ£ï mÁæ£Á¥ÉÇÃmïðgÀªÀjUÉ ¸ÀA§A¼À PÉÆqÀÄwÛzÀgÀÄÝ CªÀgÀÄ £ÀAvÀgÀ CªÀgÀ PÀ«ÄõÀ£ï ªÀÄÄjzÀÄPÉÆAqÀÄ £À£ÀUÉ ¸ÀA§¼À PÉÆqÀÄwÛzÀÝgÀÄ. This witness has been cross-examined in length by respondent No.2.
13) On the other hand 1st respondent Prerana Motors has examined its GPA holder Sri.A.R.Gogal as Rw.1. He has filed affidavit by way of examination in chief and has reiterated to the contentions urged in the written statement filed by respondent No.1. He has specifically stated on oath that 1st respondent had engaged the services of 3rd respondent for movements of TATA motor vehicle from one place to other in and out Bangalore. For such services rendered on contract basis engaging their driver, respondent No.3 will raise invoice from 1st respondent company which includes diesel consumption, driver charges, bus fare etc., for (SCCH-11) 14 ECA 383/2014 payment. The petitioner who holds a valid and effective driving licence to move a vehicle belonging to our company bearing valid registration number a-01-TC-110 with valid transit insurance cover issued by respondent No.2/insurance company. It is contended that the petitioner is falsely claiming compensation from 1st respondent even though he was engaged through contractor respondent No.3. There is no employer and employee relationship between respondent No.1 and petitioner. In his further emanation in chief he has produced SPA, attested agreement copy, attested trade certificate, form No.19, policy copy, bill of March 2014 and voucher the same are marked as Ex.R.1 to 8. In the course of cross-examination it is elicited that while the petitioner was giving demo the vehicle belonging to respondent No.1 Company met with accident. It is admitted that at the time of accident policy was inforce and the driver Jagadish possessed driving licence. This witness has denied that the driver Jagadish was injured but has stated the vehicle belonging to their company was damaged and the damages are claimed (SCCH-11) 15 ECA 383/2014 through 2nd respondent. It is admitted suggestion that at the time of accident petitioner was driving the vehicle belonging to 1st respondent company. In the course of cross- examination of Rw.1 by the learned counsel appearing for 2nd respondent it is elicited that the terms and conditions mentioned in Ex.R.2 applies to 1st and 3rd respondent. It is denied suggestion that in Ex.R.2 as per condition No.4, 5 and 7 £ÁªÀÅ qɯɪÀj PÉÆqÀĪÀAvÀºÀ ªÁºÀ£ÀzÀ ZÁ®PÀ qÀ¯ É ÉªÀj PÉÆqÀĪÀ ¥ÀǪÀðzÀ°è D ªÁºÀ£ÀPÉÌ C¥ÀWÁvÀ DzÀgÉ CzÀPÉÌ ªÀÄÆgÀ£Éà JzÀÄgÀÄzÁgÀ ¨ÁzÀså¸ÀܤgÀÄvÁÛ£ÀÉ CAvÀ EgÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è It is denied suggestion that £ÀªÀÄä PÀA¥À¤AiÀÄ ZÁ®PÀ¤UÉ ªÀiÁvÀæ «ªÉÄ PÀªÀgÉÃeï EzÀÄÝ §ÉÃgÉ ZÁ®PÀ¤UÉ «ªÉÄ PÀªÀgÉÃeï EgÀĪÀÅ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è. 3rd respondent has filed affidavit by way of examination in chief as Rw.2. He has stated on oath that 12.02.2014 he had assigned petitioner to the 1st respondent Pvt.Ltd., in pursuance of contract with them for movements of vehicle from in and outside Bangalore. The 1st respondent had asked to petitioner to drive demo vehicle and while on movement met with an accident. The said demo vehicle is validly insured with 2nd respondent. He has further stated that petitioner was not regularly employed (SCCH-11) 16 ECA 383/2014 and engaged on causal basis and has send to 1st respondent in pursuance of the contract. In his further examination in chief he has produced VCT bill dated 29.03.2014 and voucher the same are marked as Ex.R.9 and 10. In the course of cross-examination by the learned counsel appearing for petitioner it is elicited that ¢£ÁAPÀ 12.2.2014 gÀAzÀÄ dUÀ¢Ã±ï D ªÁºÀ£ÀªÀ£ÀÄß Rjâ ªÀiÁrzÀAvÀºÀ ªÀåQÛUÉ vÀ®Ä¦¸ÀĪÀ ¸À®ÄªÁV ºÉÆÃUÀÄwÛzÀgÝ ÀÄ. dUÀ¢Ã±ï D ªÁºÀ£ÀªÀ£ÀÄß ªÀÄÄnÖ¹zÀ ªÀÉÄÃ¯É £Á£Éà C ¢£ÀzÀ ªÉÃvÀ£À PÉÆnÖgÀÄvÉÛãÉ. ZÀÁ®PÀ¤UÉ gÀÆ.350/- ¤UÀ¢ ¥Àr¹zÀÄÝ gÀÆ. 50/- £Á£Éà ¥ÀqÉzÀÄPÉÆAqÀÄ gÀÆ.300/- ZÀÁ®PÀ¤UÉ PÉÆqÀÄwÛzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. In the course of cross-examination by the learned counsel appearing for respondent No.2 it is elicited that this witness has signed to Ex.R.2 which is agreement dated 10.04.2013 entered into between 3rd respondent with 1st respondent. It is admitted suggestion that dUÀ¢Ã±ï ªÀÄvÀÄÛ £À£Àß £ÀqÀÄªÉ PÁ«ÄðPÀ ªÀÄvÀÄÛ ªÀiÁ°ÃPÀ£À ¸ÀA§AzÀs EgÀĪÀÅ¢®è JAzÀgÉ ¸Àj.
14) Insurance company who is respondent No.2 has examined its administrative officer namely G.Shivakumar as RW.3 has filed affidavit by way of examination in chief and (SCCH-11) 17 ECA 383/2014 has stated on oath that his company has issued Motor trade road risk package policy in respect of trade plate No. KA-01-TC-110 and is valid from 13.08.2013 to 12.08.2014 in favour of respondent No.1. It is stated that on account of negligence of driver Jagadish accident has occurred. It is specifically and categorically stated on oath that the petitioner is not entitled to get any compensation as the entire negligence is on the part of the petitioner itself. There is no privity of contract between 3rd respondent and insurance company. That the petitioner was not employed under 1st respondent on the date of accident, as such the question of indemnifying the 1st respondent does not arise. In his further examination in chief he has produced Ex.R.9/policy copy. In the course of cross-examination by the learned counsel appearing for respondent No.1 and 3 it is elicited that 1st respondent is the owner of the vehicle which was involved in the accident. It is admitted that the petitioner was not driver at the time of accident. This witness has pleaded ignorance to the suggestion that MAzÀ£É JzÀÄgÀÄzÁzÀgÀÄ F PÉù£À CfðzÁgÀgÀ£ÀÄß (SCCH-11) 18 ECA 383/2014 C¥ÀWÁvÀPÉÌ M¼ÀUÁzÀ ªÁºÀ£ÀzÀ ZÁ®PÀ£ÁV £Éëi¹PÉÆArzÀÝgÀÄ JAzÀgÀÄ £À£ÀUÉ UÉÆwÛ®è. C¥ÀWÁvÀPÉÌ M¼ÀUÁzÀ ªÁºÀ£PÀ ÉÌ DzÀ dRAUÀÉ ¥ÀjºÁgÀ PÉý MAzÀ£Éà JzÀÄgÀÄzÁgÀgÀÄ «ªÀiÁ PÀA¥À¤UÉ PÀÉèêÀiï Cfð ¸À°¹è zÀÄÝ CzÀ£ÀÄß £ÁªÀÅ EvÀåxðÀ ¥Àr¹gÀÄvÉÛêÉ. C¥ÀWÁvÀPÉÌ M¼ÀUÁzÀ ªÀÁºÀ£ÀzÀ «ªÉÄ ZÁ°ÛAiÀÄ°èzÀÝgÀÉ ªÀÄvÀÄÛ ¸ÀzÀj ªÁºÀ£ÀzÀ ZÁ®PÀ¤UÉ ZÁ®PÀ£À ¥ÀgÀªÁ¤UÉ ¥ÀvÀæ EzÀÝgÉ D ¸ÀzÀj ªÁºÀ£PÀ ÉÌ ¸ÀA§AzÀs¥ÀlÖ «ªÉÄ ºÀtªÀ£ÀÄß £ÁªÀÅ ¥ÁªÀwªÀiÁqÀÄvÉÛêÉ. Further it is elicited that MAzÀ£Éà JzÀÄgÀÄ CfðzÁgÀgÀÄ £ÉëĹPÉÆAqÀ GzÉÆåÃVUÀ½UÀÆ ¸ÀºÀ C£Àé¬Ä¸ÀÄÛzÉÀ. MAzÀ£Éà JzÀÄgÀÄzÁgÀjUÀÉ ºÉ¸Àj£À°è ¤ÃrzÀ «ªÀiÁ ¥Á°¹AiÀÄ°è MAzÀ£Éà JzÀÄgÀÄzÁgÀgÀÄ vÁvÁÌ°PÀ ºÁUÀÆ SÁAiÀÄA DV £ËPÀgÀgÀ£ÀÄß £ÉëĹPÉƼÀî¨ÁgÀzÀÄ JA§ µÀgÀvÀÄÛ EzÉAiÉÆà E®èªÉÇà £À£ÀUÉ UÉÆwÛ®è . In the course of cross-examination by the learned counsel appearing for petitioner it is admitted that on the date of accident 1st respondent was the driver of the vehicle bearing Regn.No.KA- 01-TC-110 and that the said vehicle was insured. The policy issued in favour of 1st respondent is package policy. It is stated that this witness does not know that in the terms and conditions of insurance policy it is mentioned or not whether policy covers driver engaged on contract basis or permanent (SCCH-11) 19 ECA 383/2014 basis. It is specifically and categorically admitted that C¥ÀWÁvÀÀPÉÌ M¼ÀUÁzÀ ªÁºÀ£ÀzÀ ZÁ®PÀ£À ¥ÀgÀªÁVAiÀÄÆ ¸ÀºÀ £ÁªÀÅ «ªÉÄ PÀAvÀÄ ¥ÀqÉzÀÄPÉÆArgÀÄvÉÃÛ ªÉ.
15) In this case the following are admitted by the both the parties. Accident is not denied, it is admitted by respondent No.1 to 3 that the vehicle bearing Regn.No.KA-01- TC-110 which was involved in the accident belonged to respondent No.1, which is an demo vehicle, the said vehicle is insured with respondent No.2, the policy was valid at the time of accident, the policy is motor trade road risk policy B package, respondent No.1 has claimed damages of the said vehicle from respondent No.2 and that the petitioner was the driver of the said vehicle at the time of accident.
16) It is the case of the respondent No.2 that petitioner is not an employee of respondent No.1 and that he is not entitled for compensation. In this case petitioner had driving licence which is marked as Ex.P.7. It shows that petitioner had licence from 8.11.2006 valid upto 7.11.2026 non transport. Later on he has obtained licence to drive LMV (SCCH-11) 20 ECA 383/2014 on 13.04.2012, transport and PSV bus on 20.05.2013. Hence it is clear that as on the date of accident petitioner had valid licence to drive LMV, transport and PSV bus. It is not the case of the insurance company that petitioner was not having driving licence to drive New Tata Super Ace Tempo bearing Regn.No.KA-01-TC-110. It is not disputed that petitioner was employed under 3rd respondent and 3rd respondent intern had deputed him to 1st respondent vehicle. It is admitted that 1st respondent has paid salary to the petitioner through 3rd respondent. 1st respondent admits that respondent No.3 had provided services of the petitioner Jagadish to move a vehicle namely New Tata Super Ace Tempo bearing Regn.No.KA-01- TC-110 which had valid policy with respondent No.2. That the respondent No.2 has settled the claim of respondent No.1 for the damages of the said vehicle, in this regard RW.1 has produced Ex.R.5/certificate of insurance policy. Learned counsel appearing for respondent No.2 vehemently argued that as per Section 3 of W.M.Act the compensation is payable only when the injury is caused out of and in the course of (SCCH-11) 21 ECA 383/2014 employment. Since the petitioner was not employed by respondent No.1, he is not liable to indemnify respondent No.1. On the contrary learned counsel appearing for petitioner argued that the petitioner was engaged by 3rd respondent and was sent to 1st respondent vehicle to drive the demo vehicle and during the course of employment either as labourer or otherwise petitioner suffered injuries when he was driving the vehicle belonging to the 1st respondent and the petitioner has sustained injuries out of and in the course of employment. At this juncture counsel for petitioner relied upon citation reported 2016 ACJ 663 in the High Court of Delhi at New Dehli rendered in case of National Insurance co., Vs. Sarita Mishra. Counsel for petitioner argued that in the reported case -
"that the deceased was employed as supervisor in a transport company and was asked to drive a vehicle due to unavailability of driver, vehicle met with an accident and employee sustained fatal injuries, insurance company contended that the deceased was employed as Superviosor and not as driver and insurance company can be made liable only if the deceased was regularly employed (SCCH-11) 22 ECA 383/2014 as driver. It is held that if a person holds a driving licence then he is entitled to drive and it is no where provided in the Act that the person must be employed as a driver for entire month and only such person who drives the vehicle will be called as driver. Insurance company did not adduce any evidence to show that the deceased was driving the vehicle without any driving licence. It is further observed that employee who has driving licence and drives the vehicle falls within meaning of driver whether the deceased driver was employee".
17) The only dispute is that the petitioner was not employed by 1st respondent and as such the 2nd respondent is not liable to indemnify the 1st respondent. But the in the course of cross-examination of RW.3/G.shivakumar, Administrative Officer of respondent No.2 company he has specifically and categorically admitted that C¥ÀWÁvÀPÉÌ M¼ÀUÁzÀ ªÁºÀ£ÀPÉÌ DzÀ dRAUÀÉ ¥ÀjºÁgÀ PÉý MAzÀ£Éà JzÀÄgÀÄzÁgÀgÀÄ «ªÀiÁ PÀA¥À¤UÉ PÀÉèêÀiï Cfð ¸À°è¹zÀÄÝ CzÀ£ÀÄß £ÁªÀÅ EvÀåxÀð¥Àr¹gÀÄvÉÛêÉ. C¥ÀWÁvÀPÉÌ M¼ÀUÁzÀ ªÀÁºÀ£z À À «ªÉÄ ZÁ°ÛAiÀÄ°èzÀÝgÀÉ ªÀÄvÀÄÛ ¸ÀzÀj ªÁºÀ£ÀzÀ ZÁ®PÀ¤UÉ ZÁ®PÀ£À ¥ÀgÀªÁ¤UÉ ¥ÀvÀæ EzÀÝgÉ D ¸ÀzÀj ªÁºÀ£ÀPÉÌ ¸ÀA§AzÀs¥ÀlÖ «ªÉÄ ºÀtªÀ£ÀÄß £ÁªÀÅ ¥ÁªÀw ªÀiÁqÀÄvÉÛêÉ. From the above it is clear that respondent No.2 is bound to indemnify its (SCCH-11) 23 ECA 383/2014 insured. I have gone through police records and documents produced by respondent No.1 and 2. Respondent No.1 has produced Ex.P.10/form of register of trade certificate. It mentions at column No.5/drivers name as Jagadish who is the petitioner. Ex.P.7/driving licence of injured. Ex.R.2/agreement dated 10.04.2013 between respondent No.3 and 1. As far as Ex.R.2 in concerned insurance company has got nothing to do with it. Respondent No.1 admits that as per Ex.R.2 driver would be deputed to respondent No.1 company by respondent No.3. In this regard I rely upon a citation reported in 2014 ACJ 279 in case of District animal husbandry Officer, Yavatmal Vs. chhaya and others. Wherein it is held that " employer-workmen driver was temporarily transferred on deputation by Govt. of maharastra to District Animal Husbandry Office. Workmen while driving a vehicle during the course of his employment met with an accident and sustained fatal injuries. Commissioner awarded compensation against District animal husbandry Officer. Contention that the disciplinary control over the deceased remained with original employer - control relating to day- to-day performance of duty by the deceased lay (SCCH-11) 24 ECA 383/2014 with District animal husbandry Officer. Whether a person is included in the term "employer" if services of employee are temporarily lent to him by the person with whom employee had originally entered into a contract of service and temporary employer is liable-held: yes. By virtue of transfer of service a temporary contract of service had come into force between temporary employer and the deceased which created a relationship of master and servant". The facts and circumstances of the reported case and the instant case are one and the same.
18) In this case the over all and effective control of the vehicle bearing Regn.No.KA-01-TC-110 was with 1st respondent. The 1st respondent has allowed the petitioner to drive the vehicle. Then it is deemed that the petitioner is the employee under 1st respondent through 3rd respondent. As such the 2nd respondent who is the insurer of the vehicle is liable to indemnify 1st respondent.
19) In this case petitioner is mentioned as accused in F.I.R and it discloses that on account of tyre burst accident occurred. The said accident has occurred during the course (SCCH-11) 25 ECA 383/2014 of employment by the respondent No.1. Interse agreement between respondent No.3 and 1 is contrary to the law and merely because there is an agreement it cannot be held that petitioner sustained injuries in the accident during the course of employment by respondent No.3. In fact while driving the vehicle belonging to respondent No.1 accident has occurred. Respondent No.2 who is the insurer of the said vehicle cannot poke his nose and say that there is no privity of contract between petitioner and respondent No.1. In fact respondent No.2 insurer ought not have collected premium as shown in Ex.R.9/policy - schedule of premium, "WC to employee Rs.50/-". RW.3 in the course of cross-examination has admitted suggestion that C¥ÀWÁvÀÀPÉÌ M¼ÀUÁzÀ ªÁºÀ£ÀzÀ ZÁ®PÀ£À ¥ÀgÀªÁVAiÀÄÆ ¸ÀºÀ £ÁªÀÅ «ªÉÄ PÀAvÀÄ ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛêÉ. It is well settled principle of law that admitted facts need not be proved. The available materials coupled with the reported citation it is crystal clear that petitioner has sustained injuries in the accident while in the course of employment. The rebuttal evidence of respondent No.2 does not come to its aid and is of no (SCCH-11) 26 ECA 383/2014 purpose. Hence this tribunal is of the considered opinion that the petitioner has established the relationship of employer and employee between himself and respondent No.1 and 3 and further that the petitioner has sustained injuries in the accident that occurred on 12.2.2014, during the course of employment. Hence I am constrained to answer Issue No.1 and 2 in the affirmative.
20) ISSUE No.3: It is contended by the petitioner that he was aged about 28 years and was drawing salary of Rs.9,000/- per month as driver. Petitioner has produced Ex.P.4/wound certificate of J.P. Hospital which mentions the age of petitioner as 28 years and further mentions that petitioner had sustained injuries which are grievous in nature.
21) Learned counsel has drawn the attention of this tribunal on the notification of Ministry of Labour and Employment dated 31.05.2010 which reads like thus; (SCCH-11) 27 ECA 383/2014
S.O.1258(E): In exercise of the powers conferred by sub-section (1B) of Section 4 of the Emplyee's Compensation act, 1923 (8 of 1923), the Central Government hereby specifies, for the purpose of Sub-section (1) of the said Section, the following amount as monthly wages, with effect from the date of publication of this Notification in the Official Gazette, viz., "Eight thousand rupees".
The above Central Gazette notification dated 31.05.2010 clearly reflects that the monthly wages of the workers has been fixed at Rs.8,000/- with effect from the date of publication i.e., 31.05.2010. The accident was occurred on 12.02.2014. Under such circumstances, the salary of the petitioner is taken as Rs.8,000/- per month. Ex.P.4/wound certificate mentions that petitioner had sustained compound fracture of both bones of right leg, traumatic amputation of great toe left leg, head injury contusion over frontal region. Doctor of J.P. Hospital has opined that the said injuries are grievous in nature. Discharge summary of J.P. Hospital mentions that petitioner was treated as inpatient from 12.2.2014 till 8.02.2014. Petitioner has produced (SCCH-11) 28 ECA 383/2014 Ex.P.11/photos with CD which shows that the left great toe is amputated. Petitioner has filed affidavit by way of examination in chief and has reiterated to the averments made in the petition. Petitioner has examined the treated Dr.Srinivas.H of J.P. Hospital as PW.2. He has stated in his affidavit that petitioner was treated with ORIF with intra- medullary inter locking nail for right tibia and disarticulation of PIP joint great toe with suturing of multiple wounds. PW.2 has examined the petitioner on 15.8.2015 then petitioner complained of pain of the fracture site on prolonged walking. In his further examination in chief he has produced case sheets and X-rays. X-rays shows complete union of fracture and the petitioner requires future surgery for removal of implants which would costs Rs.25,000/- including medicines. PW.2 has stated that petitioner has partial permanent impartment of 45% of right lower limb and partial permanent impairment of 14% to left lower limb and 19% to the whole body disability. Taking into consideration the nature of injuries sustained by the petitioner coupled with the evidence (SCCH-11) 29 ECA 383/2014 of doctor and medical records this court accepts 14% disability to the whole body. The monthly income of the petitioner is already taken at Rs.8,000/- per month. As per Section 4 (1)(b) of Employees compensation Act 1923, where permanent total disablement has resulted due the injuries sustained in the accident, 60% of the wages is to be taken into consideration equal to the monthly wages of the injured. If 60% equal to the monthly wages is taken into consideration then it will come to Rs.4,800/-. That 60% of the monthly wages of the injured is to be multiplied by the relevant factor as per Schedule IV of the said Act. The age of the petitioner is 28 years at the time of accident, the relevant factor is 211.79. Hence, the loss of income of the petitioner would be Rs.4,800x211.79x14/100= Rs.1,42,323/-. Hence petitioner is entitled for Rs.1,42,323/- towards loss of earning capacity.
22) Petitioner has contended in his petition that he has spent Rs.60,000/- towards treatment, medicine, conveyance and nourishment. Petitioner has taken treatment as inpatient (SCCH-11) 30 ECA 383/2014 for 7 days. Hence, petitioner is entitled for compensation at the rate of Rs.300/- per day towards the above said heads. Petitioner has produced medical bills which is to a tune Rs.25,150/-. In the course of cross-examination of petitioner who has got himself examined as PW.1 nothing is elicited about the medical bills. Taking into the consideration the facts and circumstances of the case and the nature of injuries sustained by the petitioner I feel it is proper to award (Rs.900 x 7) Rs.6,300/- + Rs.26,000/- towards medical expenses in all petitioner is entitled for Rs.32,300/- towards above said heads.
23) As far as awarding interest I rely upon citation reported in A.I.R 2014 SUPREME COURT 1393 in case of Saberabibi Yakubbhai Saikh Vs. national insurance co. and others. In the said case 12% interest is awarded from the date of accident and not from the date of award. In view of the ration laid down in the above citation I hold that the (SCCH-11) 31 ECA 383/2014 petitioner is entitled for interest at the rate of 12% from 12.2.2014 being date of accident.
24) While discussing issue No.1 and 2, I have arrived at an conclusion that there existed relationship of employer and employee between respondent No.1, 3 and the petitioner and that the petitioner has sustained injuries in the accident that occurred on 12.02.2014 at about 12.30 pm., when he was driving Tata Ace Tempo belonging to the respondent No.1, during the course of his employment and that the policy of the said vehicle was valid at the time of accident. In the light of the above though I hold that respondent No.1 to 3 are liable to pay compensation to the petitioner with interest at 12% per annum from the date of accident till realization. But in view of the citation reported in I.L.R 2004 KAR 26 rendered in case of KSRTC by its Managing director Vs. Arun. wherein it is held that:
"Tribunal should refrain from giving any finding about apportionment or negligence, to avoid any exercise in futility".(SCCH-11) 32 ECA 383/2014
I hold that respondent No.1 and 2 are liable to pay compensation to the petitioner with interest at 12% p.a. from date of accident till realisation. In result issue No.3 is answered partly in the Affirmative.
25) ISSUE No.4: In view of my findings given on the above said issues, I proceed to pass the following :
ORDER The claim petitions U/Sec., 22 of Employees Compensation Act, 1923 is partly allowed with costs.
The petitioner is entitled for the compensation of Rs.1,74,623/- rounded off Rs.1,74,700/- with interest at the rate of 12% p.a. from the date of incident that is from 12.02.2014 till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount to the petitioner.(SCCH-11) 33 ECA 383/2014
The respondent No.2 shall deposit the compensation amount awarded with its interest within one month from the date of this order.
In the event of deposit entire amount shall be released in favour of the petitioner after proper identification.
Advocate fee is fixed at Rs.1,000/-.
Office to draw award accordingly.
(Dictated to the stenographer directly over computer, corrected and pronounced by me in open court on this 18th day of April, 2017.) (B.N.SUJATHA) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE WITNESSES EXAMINED FOR PETITIONERS:
PW.1 - Jagadisha.A PW.2 - Dr.Srinivas.H DOCUMENTS MARKED FOR PETITIONERS: Ex.P.1 - Complaint (SCCH-11) 34 ECA 383/2014 Ex.P.2 - FIR Ex.P.3 - Panchanama Ex.P.4 - Wound certificate Ex.P.5 - IMV report Ex.P.6 - Charge sheet Ex.P.7 - Driving licence Ex.P.8 - Salary slip Ex.P.9 - Concerned authority Ex.P.10 - Form No.19 Ex.P.11 - 3 photos & CD Ex.P.12 - 7 medical bills of Rs.25,150/- Ex.P.13 - 4 X-ray films Ex.P.14 - Not marked Ex.P.15 - Case sheet Ex.P.16 - 3 X-ray films WITNESSES EXAMINED FOR RESPONDENTS : RW.1 - A.R.Gopal RW.2 - S.K.Vasanth RW.3 - G.Shivakumar DOCUMENTS MARKED FOR RESPONDENTS: Ex.R.1 - Power of attorney Ex.R.2 - Agreement Ex.R.3 - Trade certificate (SCCH-11) 35 ECA 383/2014 Ex.R.4 - Form of register of Trade certificate Ex.R.5 - Insurance policy Ex.R.6 - Notice copy Ex.R.7 - Bill for the month of March 2014 Ex.R.8 - Voucher Ex.R.9 - Bill for the month of March 2014 Ex.R.9 - Copy of policy Ex.R.10 - Voucher I ADDL.SCJ. & MACT. *SR