Andhra HC (Pre-Telangana)
National Insurance Company Limited vs D. Sivasankar And Anr. on 26 April, 2006
Equivalent citations: IV(2006)ACC715, 2007ACJ291, 2006(4)ALD398, 2007(2)SLJ352(NULL), 2006 LAB. I. C. 2699, 2007 (1) AJHAR (NOC) 67 (AP), (2006) 4 ANDHLD 398, (2007) 2 SERVLJ 352, (2006) 110 FACLR 781, (2007) 1 SCT 134, (2006) 4 ACC 715, (2007) 1 ACJ 291, (2006) 4 ANDH LT 526
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This appeal arises under Section 30 of the Workmen's Compensation Act (for short 'the W.C. Act'). The 1st respondent was employed as a Driver with the 2nd respondent to work on a vehicle bearing No. AP-02-U-5269. The vehicle is insured with the appellant. On 30-5-2004, the 1st respondent was on duty to drive the vehicle from Madanapalli to Pulivenda, and on the way, it dashed a tree, and he received certain injuries. He is said to have been treated at various hospitals. He filed W.C. Case No. 2 of 2005 before the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Ananthapur, (for short 'the Commissioner'), claiming a sum of Rs. 4,00,000/- as compensation. He pleaded that he is unable to work normally, due to the permanent disability suffered by him.
2. The 2nd respondent remained ex parte. The claim of the 1st respondent was opposed by the appellant herein. It was pleaded that the policy does not cover the liability towards the Driver, since the stipulated premium was not paid. It was also urged that the claim made by the 1st respondent is exorbitant and cannot be entertained.
3. On behalf of the 1st respondent AWs.1 and 2 were examined and Exs.A-1 to A-5 were marked. On behalf of the appellant herein RW-1 was examined, and a copy of insurance policy was marked as Ex.B-1. The Commissioner took the loss of earning capacity (for short 'L.E.C.') of the 1st respondent as 100% and awarded a sum of Rs. 3,98,997/- as compensation. The same is challenged in this C.M.A.
4. Sri T. Mahender Rao, learned Counsel for the appellant had advanced two principal contentions, viz., that Ex.B-1, policy, does not cover the liability towards the appellant, and that the assessment of L.E.C. of the 1st respondent at 100%, is contrary to the provisions of the Act and the record. He contends that unless a premium of Rs. 15/- is paid, the policy does not cover the liability towards the Driver. It is also his case that when AW-2 certified the percentage of disability of the 1st respondent at 50%, there was no justification for the Commissioner in assessing or determining the L.E.C. at 100%.
5. Sri S.D. Goud, learned Counsel for the 1st respondent, on the other hand, submits that the coverage of the liability towards a Driver, on a goods vehicle, is statutory, and no special premium is required to be paid for it. He urges that the requirement for payment of Rs. 15/- as extra premium, is only to cover the liability towards an owner, if he incidentally functions as Driver, but where a third party is employed as a Driver, the liability towards him is covered by operation of the statute. As regards the loss of percentage of L.E.C., he contends that the Commissioner took into account, the settled principles of law and that no interference is called for.
6. In view of the submissions made by the learned Counsel for the parties, two questions arise for consideration.
(a) Whether it is necessary for the owner of a vehicle to pay any extra premium to cover the liability towards a Driver of a vehicle, and
(b) Whether the Commissioner was justified in treating the loss of earning capacity of the 1st respondent herein at 100%.
7. The fact, that the 1st respondent was employed as Driver with the 2nd respondent, and that the vehicle driven by him met with an accident; was not seriously disputed. In fact, it was evidenced by the F.I.R., wound certificate, charge-sheet and disability certificate which were marked as Exs.A-1 to A-4. The insurance policy was marked as Ex.A-5, as well as Ex.B-1.
8. As a measure of social security, the Motor Vehicles Act (for short 'the M.V. Act') has made it mandatory that every motor vehicle must be covered by an insurance policy. Chapter-XI of that Act, comprising of Sections 145 to 164; deals with the requirement as well as nature of insurance, that must cover motor vehicles.
9. The liability, which a policy of insurance is expected to cover, is of three categories, viz. i) the liability that will be incurred by the owner of a vehicle, in respect of death or bodily injury or damage to property of a third party, caused due to the use of the vehicle in a public place; ii) such liability in respect of a passenger of a public service vehicle, and iii) the liability arising out of death or bodily injury of a person engaged in driving of the vehicle or other employees, depending on the category of the vehicle. A perusal of Section 147 of the M.V. Act makes this, amply clear. Section 147 is an elaborate provision, and for the limited purpose of this case, it would be sufficient to extract Sub-section (1) thereof:
Section 147(1) : In order of comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorized insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2),-
(i) against any liability which may be incurred by him in respect of the death of or bodily (injury to any person, including owner of the goods or his authorized representative carried in the vehicle) or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee,-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a Conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation :-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
10. The first two categories of coverage are referred to in Section 147(1)b(i) and (ii), in specific terms. The third type of coverage, namely, the one towards the Drivers and other employees, is to be discerned from the proviso. The proviso indicates that the policy is to per se, cover the liability towards the employees referred to in proviso (i) (a), (b) and (c), i.e., Driver of the vehicle, the Conductor of a public transport vehicle or any other employee in a goods vehicle. The coverage for any employees other than those, referred to above, is optional and cannot be treated as a requirement under the M.V. Act. The liability arising under the W.C. Act, in respect of death or bodily injury towards a Driver is statutory and mandatory and any basic policy would cover it. The insurer would not be under obligation to pay any extra premium to cover the liability towards the Driver of the vehicle.
11. In Ex.B-1, it is indicated that an additional sum of Rs. 15/- is to be paid to cover the liability towards "Owner-cum-Driver. On behalf of the appellant, it is contended that the liability towards a Driver does not exist, since the extra premium of Rs. 15/- was not paid.
12. An owner of the vehicle, when he drives it, cannot be treated as an employee. The basic coverage under the M.V. Act as well as the W.C. Act is towards the Driver. If an owner sustained injuries, while driving the vehicle, he does not answer the description of a workman under the provisions of the W.C. Act, and as such cannot claim compensation. The basic liability to pay the compensation would be that of an owner and the insurer has, only to indemnify it. When the owner sustains an injury, while driving the vehicle, he has to pay compensation to himself, and in such an event, the liability of an injurer cannot be contemplated. It is for this reason, that Ex.B-1, equivalent to Ex.A-5, provided for payment of extra premium of Rs. 15/-, to cover the liability towards the Owner-cum-Driver, and in such an event, if the said amount is paid, the owner of the vehicle would be in a position to claim compensation from the insurer, if he sustained injuries, while driving the vehicle. By no stretch of imagination, it can be said that the insurer would not cover the liability towards the Driver, unless the extra premium for covering the liability towards the owner-cum-driver is not paid. Therefore, the contention advanced on behalf of the appellant cannot be accepted.
13. As regards the second question, it is a matter of record that the Medical Board, which examined the 1st respondent, certified that the injury sustained by him, to his leg, has resulted in disability to the extent of 50%. Ex.A-4 is clear on this aspect. AW-2 is one of the members of the Medical Board. He explained the circumstances under which Ex.A-4 was issued. Neither it is seriously disputed, nor this Court finds it necessary to doubt the certification made by the Medical Board.
14. The Commissioner, however, proceeded to take the disability as well as L.E.C., at 100%. The reason furnished by the Commissioner is that, on account of the injury to his leg, the 1st respondent is not able to walk freely, and in that view of the matter, he cannot drive the vehicle. He referred to certain judgments rendered by various Courts, which are to the effect that, even if the disablement is not total, the L.E.C. can be assessed at 100%, depending on the facts.
15. Schedule-I of the W.C. Act enlists different categories of injuries, in two parts, and indicates the extent of L.E.C., resulting out of such injuries. All the injuries specified in Part-I are deemed to have resulted in 100%, L.E.C. The injury sustained by the 1st respondent is not the one, that occurs in Part-I of Schedule-I.
16. Part-II of Schedule-I contains the list of injuries, that bring about permanent 'partial' disablement. The percentage of L.E.C., as a result of such injuries, is also indicated. It ranges from 90% to 1%. The W.C. Act recognized that compensation needs to be paid even in respect of those injuries, which do not find place in Parts-I and II of Schedule-I. Section 4(1)(c)(ii) of the W.C. Act provides for award of compensation for such injuries on the basis of disablement, assessed by a medical practitioner. Explanation-II to the said provision, reads as under:
Section 4(1)(c) (ii) : xxxx Explanation I:-x x x x Explanation II.-In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I.
17. Therefore, while assessing the compensation to be awarded in respect of injuries, which do not find place in Schedule-I, regard needs to be had, to the corresponding or proximate injuries in the said Schedule. Simply because the employee sustained a non-schedule injury, the authority or Court cannot feel the liability, to award any compensation, of its own choice.
18. Another important aspect to be borne in mind is that the disability or L.E.C., must not be assessed, exclusively with reference to the work or employment, which the employee was discharging at the relevant point of time. The definition of the words "partial disablement and "total disablement" under Section 2(g)(1) of the W.C. Act indicate that, it is the incapacity suffered by the employee to do "all work which was capable of performing", and not his specific work that he was engaged in, at the time the incident occurred. The consideration cannot be confined to the employment, in which the employee was placed, when he received the injury. The fact that the employee is capable of doing any other work, perfectly, notwithstanding his disability to continue in the same employment in which he was engaged, when he received injuries, becomes a relevant factor to be taken into account.
19. The percentage of L.E.C. indicated against each of the injuries in the Schedule does not leave any scope for variation, notwithstanding the suitability or otherwise of the workman to discharge the functions. A comparative assessment becomes relevant only in respect of non-schedule injuries. The percentage of disability becomes a guiding factor, and, in case, the authority or the Court intends to detach the percentage of disability from the percentage of L.E.C., strong reasons need to be assigned, and the consideration must disclose that Explanation-II to Section 4(1)(c)(ii) was applied in its letter and spirit. Reference in this context may be made to the judgment of this Court in Gona Sivasarikar v. K. Varaprasad .
20. Learned Counsel for the 1st respondent relied upon the judgments in Samala Gangadhar v. Gangaram , New India Assurance Co. Ltd. v. Subhas , Mushrilal v. Nirmal Kumar and Joginder Sain and Bros. v. Man Mohan Singh etc., in support of his contention, that it is competent for the Commissioner to award compensation at a percentage over and above what is certified by the Medical Practitioner for the unscheduled injuries.
21. There is absolutely no quarrel with this proposition. The whole controversy would be, as to whether deviation from such a percentage is warranted, and an exercise contemplated under Explanation-II to Section 4(1) c (ii) was undertaken, before such deviation. In the instant case, except that the Commissioner had expressed his own personal view in the matter, no technical or scientific examination in the matter was undertaken. When amputation of the leg, below knee, is to result in loss of 50% earning capacity, under Entry-21, of Part-II of Schedule-I, mere stiffness in the leg cannot result, in 100% disability. The assessment must be realistic and not imaginary.
22. For the foregoing reasons, the appeal is partly allowed, and the compensation awarded to the 1st respondent is reduced to half, in view of the certification of the disability, suffered by him, at 50%. There shall be no order as to costs.