Karnataka High Court
Icici Liombard General Insurance Co. ... vs Sri. Raju Balakoo @ Balakrishna Kurade on 30 June, 2016
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JUNE, 2016
BEFORE
THE HON'BLE MRS. JUSTICE RATHNAKALA
M.F.A. NO. 23582/2011 (WC)
BETWEEN:
ICICI LIOMBARD GENERAL
INSURANCE CO. LTD.,
DIVISIONAL OFFICE, BELLAD COMPANY
GOKUL ROAD, HUBLI,
DIST. DHARWAD. ... APPELLANT
(BY SRI S K KAYAKAMATH, ADVOCATE)
AND :
1. SRI. RAJU BALAKOO
@ BALAKRISHNA KURADE
AGE: 24 YEARS, OCC: NIL,
R/O RAMALINGA GALLI,
HUKKERI, DIST. BELGAUM
2. SRI. BASAVARAJ B. PATTANASHETTI
AGE: MAJOR, OCC: OWNER
R/O GANESH COLD DRINKS,
NEAR BUS STAND ROAD,
HUKKERI, TQ. HUKKERI,
DIST. BELGAUM. ... RESPONDENTS
(BY SMT. S P PATIL, ADVOCATE FOR R1; R2 - SERVED)
THIS MFA IS FILED U/S.30(1) OF THE W.C.ACT 1923,
AGAINST THE JUDGEMENT AND AWARD
DATED:07.04.2011, PASSED IN W.C.A./S.R..15/2009 ON THE
FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR
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WORKMEN'S COMPENSATION, SUB-DIVISION-I, BELGAUM,
AWARDING THE COMPENSATION OF RS.26,394/- WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF
THE PETITION AND SHALL BE DEPOSITED WITHIN ONE
MONTH FROM THE DATE OF THE ORDER.
MISC. CVL. NO.108217/2011 IS FILED FOR STAY.
THIS APPEAL A/W. MISC. CVL. HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Though the appeal is listed for admission, with the consent of learned counsel on both sides, the appeal is taken up for final disposal.
2. This is an insurer's appeal against the judgment and order dated 07.04.2011 passed in W.C.A./S.R.15/2009 by the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division-I, Belagavi district, Belagavi, (for short, 'Commissioner').
3. Facts, briefly stated, that the respondent No.1/workman was working as a driver in a Goods pick-up van bearing No.KA-49/742 on 10.10.2008. On 10.10.2008 at 16:30 hours the workman came in the said vehicle near Gajabarawadi 3 cross and rammed to a lorry parked on the road side and caused accident. As a result of the accident, workman suffered fracture injury to nasal bones. In this regard, jurisdictional police have registered a case. He was admitted to Primary Health Centre, Hukkeri, for treatment. After getting discharged from the said hospital, he took treatment from a Dentist at Belgavi. At the time of the accident workman was aged about 23 years and was earning Rs.4,000/- as wages per month. Due to the accidental injury, he was unable to drive the vehicle and thereby suffered loss of income. The workman filed a claim petition before the learned Commissioner seeking compensation. Though the court notice was served, respondent No.2/owner of the offending vehicle remained absent. The claim petition was contested by the insurer. The Commissioner, on consideration of the entire material placed on record, awarded Rs.26,394/- with interest at 12% p.a.
4. Sri S.K. Kayakamath, learned counsel for the appellant, while assailing the impugned award submits that the workman was not possessing valid driving licence to drive the vehicle. 4 Despite service of summons, owner of the offending vehicle remained absent. The injury suffered by workman i.e., fracture of nasal bone is not a scheduled injury and, the nature of the injury does not come in the way of driving the vehicle, that being so, the Commissioner should not have taken the functional disability of workman at 5% to award compensation. The claim made under the Workmen's Compensation Act, 1923 (for short, 'the Act') itself is mis-conceived and is liable to be rejected.
5. Smt. S.P. Patil, learned counsel for respondent No.1/ workman submits that since the grounds urged in this appeal are beyond the contemplation of Section 30 of the Act, the appeal is liable to be rejected. The employer and employee relationship having not been disputed and since the insurance coverage to the said vehicle was in force, the learned Commissioner has rightly considered the case of claimant. Though the injury is not a scheduled injury, because of the fracture suffered by workman, he is not able to continue his profession effectively. Hence, the learned Commissioner was justified in assessing the functional 5 disability of workman at 5%. The appeal filed by insurer is misconceived. The plea that the driver was not holding a valid licence at the time of the accident is not proved by the insured by adducing cogent evidence. Mere contention that the driver did not possess valid licence would not be sufficient to take umbrage under Section 149 of the Motor Vehicles Act, 1988 (for short, 'the M.V.Act'), for breach of policy condition. On that count also, the appeal ground cannot be sustained.
6. Since the date of accident and the involvement of vehicle bearing Reg. No.KA-49/742 in the accident and employer
-employee relationship are not disputed, the questions of law that arise for consideration are :
1. Whether the owner of the offending vehicle committed breach of policy condition, thereby Insurer is absolved from its contractual liability under the policy?
2. Whether the Commissioner was justified in treating the claim under Section 4 (1)(c) of the Act?6
7. Section 3 of the M.V.Act contemplates necessity of a effective driving licence for any person to drive a vehicle issued from the competent authority. Section 4 of the M.V.Act contemplates prescribed age limit in connection with driving of motor vehicles. Section 5 of MV Act mandates that no owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle. Driving a vehicle in contravention of Section 3 and 4 of the M.V.Act is punishable under Section 181 of the M.V.Act. Section 10(2)(e) of the M.V.Act contemplates separate form of licence to drive a transport vehicle. Driving a vehicle without a valid and effective driving licence is undisputably breach of policy condition. Under Section 149(2)(a)(ii) of the M.V.Act, it is one of permissible defences available for an insurer in a claim proceeding before the 'Tribunal' to resist the claim. Admittedly, the owner and claimant did not produce the 'Driving Licence' though called upon by the Commissioner.
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8. On their own showing, the accident has occurred when the claimant inadvertently hit a parked pick up goods vehicle of which he was the driver, from behind. Inadvertence in performance of the duty cannot be an instance of accident arising out of and during the course of employment. He cannot encash upon his own folly. Having come before the Commissioner claiming compensation in respect of injuries allegedly suffered during the course of his employment as a driver, burden was on him to produce the driving licence, if really had any. For having suppressed material facts, necessarily adverse inference has to be drawn against him. Proof of existence or non-existence of a valid driving licence need not always be the sole responsibility of Insurance Company, facts and circumstances differ.
9. The Apex Court in National Insurance Co.Ltd. -vs- Swaran Singh and others {(2004) 3 SCC 297}, addressing the proposition that Insurance Company is required to establish breach of condition of policy observed as under:
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"70. Apart from the above, we do not intend to lay down anything further, i.e., degree of proof which would satisfy the aforementioned requirement inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose a different problem which must be resolved having regard to a large number of factors governing the case including conduct of parties as regards duty to inform, correct disclosure, suppression, fraud on the insurer, etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule can therefore be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of contract of insurance, on the part of the insurer by discharging its burden of proof. The Tribunal, there cannot be any doubt, must arrive at a finding on the basis of the materials available on records."
10. Insurance Company had made its prompt effort by issuing legal notice, both on the owner and driver calling upon them to produce driving licence which they did not comply. During rebuttal evidence, the insurer had brought on record that workman was charge sheeted in respect of the accident and he 9 had pleaded guilty and was fined. The above circumstances prove beyond any doubt that claimant, who himself was the driver of the vehicle, did not own a valid and effective licence to drive the vehicle and now he has made claim under Section 22 of the Act to encash his own wrong for which the Insurance Company cannot be held liable under terms and conditions of the policy.
11. Noticeably, the nasal fracture suffered is not a scheduled injury. By any stretch of imagination, it cannot be said that the said injury will have its impact on the driving skill of a person. The determination of compensation is regulated by Section 4 of the Act, more particularly, Section 4 (1)(c)(ii), which reads thus:
"4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-
(a) . . .
(b) . . .
(c) where a permanent partial (i) . . . . . . . . .
disablement results from the injury
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation 10 payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury."
12. But, here is a case where the Doctor has assessed the loss of permanent physical disability instead of loss of earning capacity, and computes the fracture of nasal bone at 20%, fracture of two teeth at 10% and face skin scar at 2%. Thus, Doctor has certified the total percentage of disability at 32% and 10.3% to the whole body of the workman. On the basis of said assessment, Commissioner has held that his earning capacity decreased by 5%, which is obviously hypothetical and unconnected to the workman's functional disability as a driver.
13. In all probability, the claim falls within the ambit of Section 4(1)(d) of the Act, which reads thus:-
"4. Amount of compensation.-(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-11
(a) . . . .
(b) . . . .
(c) . . . .
(d) where temporary disablement, a half monthly payment whether total or partial of the sum equivalent to results from the injury twenty-five percent of monthly wages of the workman, to be paid in accordance with the provisions of sub-section (2)."
14. A Division Bench of this Court in the matter of Appaji (since deceased) and another -vs- M.Krishna and another 2004 ACJ 1289) while considering the question of liability to pay compensation where death or bodily injury was caused on account of rash and negligent driving of deceased himself (in a claim petition filed under Section 163-A of the M.V.Act) was of the view that Parliament did not intend to provide compensation to the person responsible for the accident on structured formula basis. The insurance policy in the present case not being one availed under the Act, but under the relevant provisions of the M.V.Act, no liability lies on the insurer to indemnify the owner as 12 the claimant himself is responsible for the injuries by his own negligent driving. On that count also, this appeal shall succeed.
15. Assuming that the workman was disabled due to pain and suffering and in pursuance of the injuries suffered during the course of employment, he is entitled for a sum of Rs.1,000/-, being 25% of his monthly wages. A half monthly payment referred above is further carried forward in sub-section (2) of Section 4 of the Act. However, the owner has not contested his claim. He has not challenged the award also. In view of the discussion made in the preceding para, the appellant/insurer stands absolved of its liability.
Accordingly, the appeal is allowed. The order dated 07.04.2011 passed in W.C.A./S.R.15/2009 by the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division- I, Belagavi District, Belagavi, is modified. The compensation amount with interest is solely executable against the owner. The Insurance Company is absolved of its contractual obligation of 13 indemnifying the owner of the vehicle under the insurance coverage.
In view of disposal of the appeal, Misc.Cvl.108217/2011 does not survive for consideration and hence, stands disposed of.
Sd/-
JUDGE hnm