Karnataka High Court
National Insurance Co Ltd vs Narayan Naika on 24 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:25683
MFA No. 8477 of 2012
C/W MFA No. 8723 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2023
BEFORE
R
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 8477 OF 2012 (WC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8723 OF 2012
IN MFA NO.8477/2012
BETWEEN:
NARAYANA NAIKA,
S/O. JAKKU NAIKA,
DRIVER OF TIPPER LORRY,
RAICHIKOPPA VILLAGE,
KUMSI HOBLI,
SHIMOGA TALUK AND
DISTRICT - 577 201.
Digitally signed by ...APPELLANT
VIJAYALAKSHMI B
N (BY SRI. M V MAHESWARAPPA, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. J.D. SUBBARAYA SHEREGAR,
SINCE DEAD BY HIS L.RS.,
1(A) SRI. KESHVA SHEREGAR,
S/O. LATE. SUBBARAYA SHEREGAR,
P.W.D. CONTRACTOR,
R/AT. BEHIND RAMA MANDIRA,
GANGOLI POST,
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NC: 2023:KHC:25683
MFA No. 8477 of 2012
C/W MFA No. 8723 of 2012
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201.
2. THEBANK MANAGER,
M/S. NATIONAL INSURANCE CO. LTD.,
GANESH MAHAL,
MUNICIPAL MAIN ROAD,
KUNDAPUR,
UDUPI DISTRICT - 576 201.
...RESPONDENTS
(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2;
VIDE ORDER DATED 20.07.2023, SERVICE OF NOTICE
TO R1(A) IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT DATED 31.05.2012 PASSED IN WCA/nf/cr-3/2005
ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN COMPENSATION, SHIMOGA DISTRICT,
SHIMOGA, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.8723/2012
BETWEEN:
NATIONAL INSURANCE CO.LTD.,
GANESH MAHAL, MUNICIPAL MAIN
ROAD, KUNDAPURA, NOW REPRESENTED
BY REGIONAL MANAGER,
NATIONAL INSURANCE CO.LTD.,
REGIONAL OFFICE, SUBHARAM
COMPLEX, 144, M G ROAD,
BANGALORE - 560 001.
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NC: 2023:KHC:25683
MFA No. 8477 of 2012
C/W MFA No. 8723 of 2012
...APPELLANT
(BY SRI. A.N. KRISHNASWAMY, ADVOCATE)
AND:
1. NARAYAN NAIKA,
S/O JATTA NAIKA,
MAJOR, DRIVER OF TIPPER LORRY,
RECHIKOPPA VILLAGE,
KUMSHI HOBLI,
SHIMOGA TALUK.
2. G.D. SUBRAYA SHERIGARA,
S/O G.D. MANJUNATHA,
MAJOR,
P W D CONTRACTOR,
BEHIND RAMA MANDIRA,
GANGOLLI POST,
KUNDAPURA TQ.
...RESPONDENTS
(BY SRI. M.V. MAHESWARAPPA , ADVOCATE FOR R1;
VIDE ORDER DATED 20.07.2023, SERVICE OF NOTICE
TO R2(A) IS HELD SUFFICIENT;
R2 DECEASED)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.05.2012 PASSED IN
WCA/nf/cr-3/2005 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SHIMOGA
DISTRICT, SHIMOGA, AWARDING A COMPENSATION OF
RS.2,01,523/- WITH INTEREST @ 12% FROM 15.10.2004 TILL
THE DATE OF DEPOSIT.
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NC: 2023:KHC:25683
MFA No. 8477 of 2012
C/W MFA No. 8723 of 2012
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.8477/2012 is filed by the claimant challenging the judgment of award passed by the learned Commissioner for workmen's Compensation, Shivamogga in WCA:NF:CR-3/2005 dated 31.05.2012, for seeking enhancement of compensation.
2. MFA No.8723/2012 is filed by the Insurance Company questioning the liability fixed on the Insurance Company on the ground that the workman is a spare driver but risk is not covered for spare driver as per the insurance policy.
3. The brief facts of the case are that, on 15.09.3004, the claimant was instructed by respondent No.1-owner of the tipper lorry to go to Edoor Town from Chittoor to bring back another tipper lorry parked at Edoor Town and accordingly, the claimant was going from Chithur to Edoor Town on tipper lorry bearing No.KA-20-A- -5-
NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 2467 as a spare driver and on the way to Edoor Town, the driver of the said tipper lorry drove the vehicle with high speed and lost control over the vehicle, as a result of which, the said tipper lorry dashed against the tree and caused accident. Due to the said impact, the claimant has sustained grievous injuries and hence, filed the claim petition claiming the compensation.
4. Heard the arguments on both sides and perused the records.
REGARDING LIABILITY:
5. Learned counsel for the appellant/claimant submitted that there is only one claim by the claimant who is the driver under the employment of respondent No.1 and the insurance policy is a package policy and also premium is paid for covering the risk of one driver and the claimant is only the driver who filed the claim petition. Therefore, submitted that even as per the requirement of Section 147 of Motor Vehicle Act, the risk of one driver is compulsorily covered. Hence, in view of premium paid -6- NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 covering the risk of driver, therefore, the Insurance Company is liable to indemnify the owner and this is correctly held by the learned Commissioner. Hence, prays to dismiss the appeal filed by the Insurance Company.
6. In support of his argument, he places reliance on the judgments of this Court as follows:
(i) United India Insurance Company
Limited Belgaum Do. Vs. Smt.
Shanthavva and Others reported in ILR
2006 KAR 1109 (for short Smt.
Shanthavva's case)
(ii) Oriental Insurance Co., Ltd., Vs.
Kashim reported in ILR 1996 KAR 793
(for short Kashim's case)
7. On the other hand, learned counsel for the Insurance Company submitted that the claimant be construed as gratuitous passenger in the tipper lorry, though he claimed to be a spare driver and was not driving the tipper lorry. Therefore, the risk of such gratuitous passenger is not covered. Therefore, submitted -7- NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 that the Insurance Company is not liable to indemnify the owner and pay compensation.
8 In support of his submission, he places reliance on the judgment of the Hon'ble Supreme Court in the case of Manager, National Insurance Company Limited Vs. Saju P.Paul and Another reported in AIR 2013 SC 1064 (for short Saju P.Paul's case).
9. From the facts analyzed, it is proved that the claimant was instructed by respondent No.1-owner of the tipper lorry to go to Edoor Town from Chithur to bring back another tipper lorry parked at Edoor Town and accordingly, the claimant was going from Chithur to Edoor Town on tipper lorry bearing No.KA-20-A-2467 as a spare driver and on the way to Edoor Town, the said tipper lorry met with an accident and the claimant had sustained injuries. Arising out of the said accident, this is only the claim petition filed by the claimant-spare driver, but not by any other driver/employee of respondent No.1-owner. -8-
NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 Admittedly, the insurance policy in the present case is a package policy.
10. Under these facts and circumstances, the point that arises for consideration is as follows:
"Whether, under the facts and circumstances involved in the case, the risk of employee who is working as a spare driver under the employment of respondent No.1- owner is covered under Section 147 of Motor Vehicle Act in case only one claim is made by the spare driver and having no other claim by any other driver/employee?"
11. Admittedly, as above stated the insurance policy is the package policy. Section 147 of Motor Vehicle Act compulsorily covers the risk of driver in a good vehicle. Section 147 of Motor Vehicle Act stipulates requirement of covering risk compulsorily. Therefore, irrespective of fact as to whether premium or extra premium is paid or not paid covering the risk of driver, it shall compulsorily cover the risk of driver in the goods vehicle. Just because, the -9- NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 claimant is a spare driver under the employment of respondent No.1, it cannot be said that his risk is not covered under the policy. Basically, the claimant is an employee under the employment of respondent No.1 and designated to work as a driver, which is categorized as a spare driver to the tipper lorry bearing No.KA-20-A-2467, but he is a driver to another tipper lorry standing/parked at Edoor Town. When owner owns two or more lorries, it is incumbent upon the owner to appoint/employ drivers according to the number of lorries owned by them, but considering the insurance policy purchased for tipper lorry bearing No.KA-20-A-2467, the claimant cannot be categorized as a gratuitous passenger or fair paid passenger for the reason that he was going to Edoor Town as a spare driver for bringing back another tipper lorry. Therefore, when premium is paid for covering the risk of a driver, then the risk of claimant, even though, he is a spare driver is covered. Having two lorries, but engaging one driver is nothing, but causing hardship to a single driver as it is not possible and also causing hardship to a
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 driver to drive lorry continuously by a single person. Engaging a single person for two lorries, even though, the said driver can drive lorries one after another creates pressure of risk while driving lorry endangering of causing accident. Therefore, if a spare driver is not appointed, then it accelerates the risk of accident in case a single person is consecutively driving two lorries, even though, one after another without giving any break or rest to the driver. Therefore, under these circumstances, the employment of spare driver is inevitable and necessary. Therefore, just because, the premium is paid for one driver that does not mean that to cover the risk of driver who is actually on the steer of the lorry, but also the risk is covered for spare driver, because fundamentally the spare driver is an employee under respondent No.1. Therefore, where one claim is made by driver, the risk of driver/spare driver is covered. If two drivers make claim, then the Insurance Company is liable to pay compensation for one driver and for another driver, the owner is liable to pay compensation. But in the present case as facts emerged
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 from the evidence on record, there is one claim by the spare driver and not by any other driver in respect of the lorries. Therefore, under these circumstances as per the insurance policy and also as per Section 147 of Motor Vehicle Act, the risk of a driver is covered and premium is paid covering the risk of driver. Therefore, the Insurance Company cannot be absolved in respect of spare driver also. In this regard, learned counsel for the claimant has rightly placed reliance on the judgment of this Court in Smt. Shanthavva's case. This Court at paragraph No.4 held 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 respect 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 virtue of provisions of rule 100 of Karnataka Motor Vehicle Rules and Section 147 of the M.V. Act which insists
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 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."
12. This Court in Kashim's case at paragraph No.7, it is held as follows:
"7. Even if it could be said that under Section 147, the policy is required to cover the employee engaged in driving the vehicle and that as the first-respondent was not actually driving the vehicle at the time of the accident and as the policy did not cover the risk of two drivers, the coverage given to the driver under the policy does not come into operation, it cannot be straightaway said that the insurer is absolved of all liability to pay compensation. The vehicle involved in the accident is a goods vehicle. Rule 100 of the Motor Vehicle Rules, 1989, provides that a total number of six employees apart from the driver can be carried in a goods vehicle. Sub-clause (c) of clause (i) of the proviso to Section 147(1) requires statutory cover for the employee carried in the vehicle if it is a goods vehicle. As such, in the case of a goods vehicle, there is statutory cover in respect of six employees carried in the vehicle. Even if the first-respondent was not actually driving the vehicle at the time of the accident, he was travelling in the vehicle at the time of the accident in his capacity as an employee of the owner of the vehicle. He was also travelling in the course of his employment. As such the insurer would be liable to pay the compensation payable under the Workmen's Compensation Act. Hence on the facts of the case the order of the Commissioner making the insurer liable for the compensation payable does not suffer from any legal infirmity."
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012
13. Therefore, as per the above referred judgments, the present case is squarely covered and to be followed in the present case also.
14. The facts and circumstances in the judgment of Hon'ble Supreme Court in Sanju P.Paul's case are different. In the said case, the insured has paid premium for one driver and one cleaner. Therefore, second driver or that spare driver is not covered under the policy on the context that the driver was employed as a driver in another vehicle owned by M/s.PL Construction Company. The spare driver in the above said case was not employed to drive the vehicle of his employer but employed to drive the vehicle owned by M/s. PL Construction Company. This makes difference in factual matrix in the above said case. In the present case, the claimant was employed as a driver even though called as spare drive to drive tipper lorry from Edoor town belonging to the respondent No.1. This makes difference in factual matrix in these two cases. Therefore, the above said case is not applicable in the present case.
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012
15. There is difference between the Act policy/liability only policy and comprehensive/package policy. What section 147 of MV Act reflects is requirement of policy means compulsorily coverage of risks under the policy. The requirement of covering the risk as per Section 147 of the MV Act is a compulsory irrespective of bifurcation of payment of premium but the package policy is having a bigger circle of coverage in comparison with statutory policy. Furthermore, in the present case, an extra premium is paid covering risk of spare driver. Also, the present is the only claim petition filed by the claimant but not by any other drives or any other employee. Therefore, Smt. Shantavva's case and Kashim's case stated supra are squarely applicable to the present case. Hence, learned Commissioner is correct in putting liability on the Insurance Company to indemnify the owner and pay compensation. Hence, there is no need to make any disturbance on the liability determined by the learned
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 Commissioner. Therefore, the substantial question of law is answered in affirmative.
QUANTUM OF COMPENSATION:
16. In the present case, the claimant is a driver by profession of aged 29 years. Medical evidence including evidence of doctor proves that the claimant has suffered following injuries:
"Neuropsychological profile shows impairment in the areas of scanning, cognitive fluency, working memory, set shifting and concept formation, verbal learning and memory as well as visual memory. These impairments will significantly affect his day-to-day as well as occupational functioning."
17. The above said is a neurological report as per Ex.P5 issued by the doctor. The claimant had suffered severe injury to the head causing fracture to the scull affecting the brain functioning. Therefore, it is the opinion of the doctor that the claimant had suffered severely of neuropsychological functions due to the injury to the brain and these impairments are significant affecting his day-to-
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 day normal activities as well as occupational functioning. The claimant was driver by profession and by this significant neuropsychological disorder, the claimant is not at all able to work as a driver and thus, it is nothing but affecting 100% loss of earning capacity due to disability.
18. Physical disability and functional disability are two different criteria. The doctors' can only say physical disability. The functional disability can be assessed during adjudication of the claim proceedings based on the nature of profession/avocation of the claimant, injuries and disability. Therefore, just because the doctor had stated that the claimant had suffered 40% of permanent total disability that cannot always be treated as only suffering as a 40% physical disability. Where a severe head injury is caused affecting to the brain functions and the nerves/neurons of the brain damaged, the entire motor functions of the body as well as intellectual capacity of the mind rendering the claimant unable to work as a driver then it is 100% permanent total disability.
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012
19. In this regard, I place reliance on the judgment of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another 1, wherein at Paragraph Nos.12, 13 and 19, it is held as under:
"12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.1
(2011) 1 SCC 343
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
"19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income."
20. Further the Hon'ble Supreme Court in the case of Rekha Jain Vs., National Insurance Co., Ltd., and
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 Others2 were pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was disfigured. The injured is no longer to work in film or as a TV actress and had lost her entire earning capacity as a TV actress. Therefore, the Hon'ble Supreme Court considered it as 100% of functional disability. The principle of law laid down therein is squarely applicable to the case on hand.
21. The Hon'ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others3 were pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of permanent physical disability, but it affects the avocation of the injured to carry out the profession as he was doing before the accident. Then it would amount to 2 (2013) 8 SCC 389 3 (2015) 7 SCC 252
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 100% of functional disability. The injured being a driver met with an accident and as per the doctor's evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by holding functional disability at 100%. Further the Hon'ble Supreme Court in the case of Mohan Soni Vs. Ram Avtar Tomar and Others4 had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon'ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cart- puller and had suffered functional disability at 100% and accordingly, awarded compensation.
22. Therefore, from the principle of law laid down as above stated, the claimant had suffered 100% 4 (2012) 2 SCC 267
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 permanent total disability as the claimant is not able to do work as a driver.
23. The monthly wage is to be taken as Rs.4,000/- and the claimant was aged 29 years and accordingly, the relevant factor is 225.22. Therefore, the loss of earning capacity due to disability is hereby reassessed and quantified as Rs.4,000x60/100x225.25 = Rs.5,40,600/-
24. Therefore, the claimant is entitled for total compensation of Rs.5,40,600/- against Rs.2,01,523/- as awarded by the learned Commissioner, with statutory interest at the rate of 12% p.a., from the date of accident till its realization.
25. Accordingly, I proceed to pass the following:
ORDER i. MFA No.8477/2012 filed by the claimant is hereby allowed-in-part. Consequently, MFA No.8723/2012 filed by the Insurance Company is dismissed.
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NC: 2023:KHC:25683 MFA No. 8477 of 2012 C/W MFA No. 8723 of 2012 ii. The judgment and award passed by the learned Commissioner in WCA:NF:CR-3/2005 dated 31.05.2012 is hereby modified holding the claimant is entitled for total compensation of Rs.5,40,600/-
against Rs.2,01,523/- with interest @ 12% p.a., from the date of accident till its realization. iii. The claimant is not entitled for interest for the delayed period of 31 days in filing the appeal. iv. Amount in deposit shall be transmitted to the Tribunal/learned Commissioner, forthwith.
v. Costs made easy.
vi. Draw award accordingly.
Sd/-
JUDGE
KA/PB/KA
CT:SNN