Madras High Court
Branch Manager, National Insurance ... vs R. Lakshmanan And Another on 12 December, 2000
Equivalent citations: 2002ACJ1304
ORDER
1. This appeal is directed against the award of the Commissioner for Workmen Compensation, Madurai. in W.C.No.260 of 1998.
2. In the application filed by the claimant, he has stated that he was working as a driver of autorickshaw owned by the first opposite party. He was receiving a monthly salary of Rs.1,000 and a daily batta of Rs.50. He was receiving a total sum of Rs.2,200 approximately as monthly salary. On 22.10.1996 he was proceeding towards Kanadukathan from Pallathur after loading the materials from the shop belonging to the first opposite party. At about 12.30 p.m. when the vehicle was approaching the Government Hospital, Kanadukathan, the vehicle capsized. As a result of which the claimant suffered fracture injuries on his two legs. He was admitted in the Government Hospital and subsequently, he was shifted to Karaikudi Government Hospital and later to Madurai Meenakshi Mission Hospital. He undertook treatment as inpatient from 22.10.1996 to 9.12.1996, 22.1.1997, and from 25.2.1997 to 28.2.1997. Subsequently also, he was undergoing treatment. As a result of the disability, he was unable to perform his duties as earlier. Even though the doctor of the employer had certified disability at 20 per cent, he has actually suffered hundred per cent disability in terms of his earning capacity. Hence, he was entitled to a sum of Rs.2,68,800 as compensation.
3. In the counter filed by the second respondent/Insurance Company, it was contended that the applicant was not a workman under the first opposite party. The percentage of disability was also disputed. There is no nexus between the loss sustained by the claimant and the quantum of compensation claimed by him. Subsequently, an additional statement of objections was filed by the second opposite party and it was stated that the applicant was not in possession of driving licence to drive the autorickshaw. Therefore, the Insurance Company is not liable to indemnify the loss allegedly sustained by the claimant.
4. On consideration of the said contention, the Commissioner held that the claimant was having an effective driving licensed to drive the light motor vehicles. A total sum of Rs. 1,44,661 was awarded on the basis of the finding that the claimant had sustained employment injury. Hence, the present appeal.
5. Learned counsel for the appellant/Insurance Company submits that inasmuch as the claimant was not possessed with a valid licence to drive an autorickshaw, the Insurance Company was not obliged to pay any compensation. In order to prove that the claimant was not in possession of valid endorsement, an Assistant from the Office of the Insurance Company had also been examined as a witness. As regards the quantum of compensation, learned counsel submits that even though the disability certificate had been filed and certified by one Dr.A. Chinnadurai, since the said doctor has not been examined in evidence, the disability certificate was not admissible in evidence.
6. Per contra, learned counsel for the respondent submits that when the driver has possessed of a licence to drive the light motor vehicle, the autorickshaw being of a lesser weight than the motor vehicle, he is certainly entitled to drive the autorickshaw and hence, the Insurance Company was liable to pay compensation. Reliance is placed on the judgment of the Supreme Court in Ashok Gaugadhar Maratha v. Oriental Insurance Co. Ltd, .
7. On the other hand, learned counsel for the respondent relies on the judgment of K.Sampath, J. in National Insurance Co. Ltd. v. Sundara Raj, in support of his contention that in the absence of any endorsement for driving autorickshaw, the Insurance Company cannot be made liable.
8. 1 have considered the said issue of whether the claimant has possessed with a proper licence or noi, in the light of he submissions made by both sides as well as the provisions contained under the Motor Vehicles Act.
9. There can be no dispute over the fact that various types of licences are issued for driving different types of vehicles. It cannot also be disputed that a person should be possessed of an cffecfive driving licence as defined under section 3 of the Motor Vehicles Act, 1988 and the effective driving licence would mean a valid licence, both as regards the period as well as the type of vehicle. If the validity of the licence is to be determined only on the basis of weight of the vehicle, then all that would be required for a person is to obtain a licence for a heavy motor vehicle and such a person need not obtain separate licence cither for light motor vehicle, autorickshaw or two- wheeler. It should be appreciated that each of the said types of vehicles operate on different mechanism, driving skill, capacity to balance the vehicle etc. A driver of a four-wheeler cannot be presumed to know how to drive a two-wheeler which essentially requires capacity to balance the vehicle. Likewise, the mechanism of an autorickshaw is also different considering that the process of acceleration, operating clutch and gear and applying brakes etc. arc totally different. That is the reason why the Motor Vehicles Act contemplates issuance of licence to different categories based on test before granting licence. Therefore, the mere weight of the vehicle alone cannot be a deciding factor. In the Judgment of the Supreme Court in Ashok Gaiigadhar Maratha v. Oriental Insurance Co. Ltd, relied on by learned counsel for the respondent, the issue arose as regards the same type of vehicle. The driver in that particular case had a valid licence to drive the light motor vehicle and what was lacking was only an endorsement authorising him to drive a transport or commercial vehicle. There is no dispute in that case that the vehicle in question also belongs to the same category and type of light motor vehicle.
10. This issue has been considered in detail by K. Sampath, J. in National Insurance Co. Ltd. v. Sundara Raj, and I am in respectful agreement with him. In an earlier judgment, in C.M.A.No.261 of 1994, dated 5.8.1999 also I have taken the similar view. Therefore, I am unable to sustain the contentions of learned counsel for respondents in this context and hence the Insurance Company is entitled to be exonerated of its liability to pay compensation to the claimant.
11. With reference to the percentage of disability, it is true that the Doctor has not been examined in evidence and the claimant has marked only Ex.A.12 the disability certificate issued by one Dr.Chinnadurai. However, having regard to the nature of the injury namely, fracture of tibia on his right leg and fracture of both tibia and fibula bones on his both legs, the injures have been described as grievous. Further, the Deputy Commissioner had also seen the claimant in person and he has recorded his finding that he has noticed his physical condition along with Ex.A.8, the photograph disclosing the pathetic condition of the claimant. He has further stated that he concurs with opinion of the Doctor and that the appellant had sustained loss of earning capacity to the extent of 55 per cent. Therefore, I do not find any reason to interfere with the quantum of compensation awarded by the Tribunal.
12. In the result, the appeal is allowed only to the extent of the Tribunal not exonerating the Insurance Company and in other respects the award of the Commissioner is confirmed. The Insurance Company is exonerated and the claimant is entitled to proceed to recover the amount of compensation from his employer. Subject to the above observation the appeal is partly allowed. No costs.