Rajasthan High Court - Jodhpur
N.I.C.Ltd vs Rampratap Singh And Anr on 23 October, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 892/2008
National Insurance Co. Ltd.
----Appellant
Versus
Rampratap Singh & Anr.
----Respondent
For Appellant(s) : Mr. Jagdish Vyas
For Respondent(s) : Mr. Arun Dadhich
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 23/10/2019
1. This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed for the following reliefs :-
"It is, therefore, most humbly and respectfully prayed that this appeal may kindly be allowed with costs and the judgment and award dated 19.3.2008 passed by the learned Commissioner, Workmen's Compensation, Udaipur in W.C. Case No.17/2007 (ALC) may kindly be quashed and set aside."
2. The unfortunate accident happened on 06.2.2006 when injured/claimant was travelling in Tempo No.RJ-27-GA0330 as a Driver, which resulted into serious injuries. Counsel for the appellant raised two major issues i.e. firstly the FIR lodged in pursuance of the accident reflects that the injured/claimant was not driving the Tempo but was travelling. The FIR lodger is father of the claimant, who too, stated that his son was travelling in Tempo in-question from one place to another. Counsel for the (Downloaded on 30/10/2019 at 08:23:11 PM) (2 of 4) [CMA-892/2008] appellant, thus, on the strength of FIR submits that coverage of insurance was only of driver and none other than driver, thus, the Insurance Company shall not liable to be indemnify and pay compensation as no extra premium was charged for the second driver. The second issue raised is regarding disability of two fingers of foot and indicates 22% permanent disability, whereas the disability has been taken to be 60% by the learned Commissioner.
3. Counsel for the respondent submits that owner of vehicle as well as witnesses categorically stated that the claimant was travelling in Tempo in-question and was not actually driving but was travelling as second driver. Counsel for the respondent has relied upon the judgment of Hon`ble Karnataka High Court (Bangalore Bench) in the case of United India Insurance Co. Ltd. Vs. Shanthavva & Ors., reported in 2006 ACJ 1222, relevant portion whereof reads as follows :-
"4. The word "engaged in driving the vehice" should not be interpreted to mean only the driver on the steering excluding a spare driver. The spare driver is also very much a person engaged in driving the vehicle, may be on shift basis. The insurer is very much liable to pay compensation to a spare driver Under Section 147 of M.V. Act if there is only one claim under the Act Policy. However if there are two separate claims in respect of driver and spare driver unless additional premium is paid, the insurer may not be liable to pay for both the drivers. If the claim is in respcet of only one driver even if he is not actually driving at the time of accident still the insurer becomes liable to pay Under Section 147 of the M.V. Act as a statutory liability. The decision of this Court in Oriental Insurance Company Limited v. Khasim lays down that the insurer is liable to pay compensation for the spare driver by (Downloaded on 30/10/2019 at 08:23:11 PM) (3 of 4) [CMA-892/2008] virtue of provisions of rule 100 of Karnataka Motor Vehicle Rules and Section 147 of the M.V. Act which insists statutory cover for employees employed in connection with the motor vehicle. Therefore the insurer in any circumstance cannot avoid payment of compensation to a spare driver. "
4. Counsel for the respondent, thus, submits that even when not actually driving vehicle but travelling as spare driver, the injured/claimant is entitled to receive compensation as he sustained injuries resulting into two fingers of foot which would definitely hamper his driving skills, thus, the learned Commissioner was absolutely justified in taking disability to be 60%.
5. After hearing counsel for the parties and perusing record, this Court finds that there was sufficient evidence available before the learned Commissioner to consider the claimant/injured as spare driver as there is no contradiction in the version set out in FIR and the averments made in claim that injured was not actually driving the Tempo but was only travelling and was sitting in front seat as second driver, which could accommodate two persons, thus, the first issue is decided against the appellant-Insurance Company, however, as regards issue regarding disability, that has not been correctly assessed by learned Commissioner because disability certificate issued by Medical has assessed permanent disability to be 22%, particularly, when the injury pertains to two fingers of foot, thus, apparently it cannot be said said that the injury suffered was of such a nature hampering or having such impact on driving skills of a person warranting enhancement. Schedule-I of Workmen's Compensation Act, 1923 reflects that if there is a injury, then percentage of (Downloaded on 30/10/2019 at 08:23:11 PM) (4 of 4) [CMA-892/2008] disability ought to commensurate disability. The certificate issued by Maharana Bhupal Government Hospital, Udaipur of 22% disability has to be believed, thus, while allowing the appeal to that extent, the parties were directed to jointly submit their re-compute disability in terms of 22% disability certificate, which they have furnished and the same reads as follows :-
Name of injured = Ram Pratap Singh
Age = 37 years
Monthly income = Rs.4000/-
Disability assessed = 22%
Relevant factor = 192.14
4000 x 60 x 192.14 x 22% (disability)
100
= Rs.1,01,449.92
6. The claimant shall be entitled for receive compensation of Rs.1,01,449.92 alongwith 12% per annum from the date of filing of claim petition till actual payment is made. If any excess amount has been paid, then the same shall be refunded to the Insurance Company with proportionate accrued interest.
(DR. PUSHPENDRA SINGH BHATI), J.
158-Sanjay/-
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