Karnataka High Court
The Branch Managaer vs Sri Raju S/O Pomusing Jadhav Ors on 1 February, 2019
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE S.G.PANDIT
MFA NO.32158 OF 2011 (WC)
Between:
The Branch Manager
The Oriental Insurance Co. Ltd., Bijapur
Now represented by its
Sr. Divisional Manager
Oriental Insurance Co. Ltd.
1st Floor, N.G. Complex
Opp: Mini Vidhana Soudha
Main Road, Gulbarga
... Appellant
(By Sri Mohammed Abdul Quayum, Advocate
For Smt. Sumitra H., Advocate)
And:
1. Sri Raju S/o Pomusingh Jadhav
Age: 25 years, Occ: Driver (now nil)
R/o Mathpatigalli, Bijapur
2. Shri Ramachandra
S/o Shivaji Ghorpade
Age: Major
Occ: Owner of the vehicle.
R/o H.No.280/C
2
New Kumbargalli, Bijapur
(Vehicle No.KA-28/A-2872 its owner)
3. Sri Altaf Hussain Munisi
Age: Major, Occ: Business
R/o Mustafa Colony, Bijapur
... Respondents
(Sri S.S. Mamadapur, Advocate for
Sri Ashok R. Kalyanshetty, Advocate for R1;
R2 & R3 - served and unrepresented)
This MFA is filed under Section 30(1) of the
Workmen's Compensation Act, against the judgment
and order dated 18.08.2011 passed in
WCA/SR/No.74/2009 on the file of the Labour Officer
and Commissioner for Workmen's Compensation Sub-
Division No.1, Vijayapur, partly allowing the claim
petition and awarding compensation of Rs.1,31,970/-
with interest at 12% p.a.
This appeal coming on for final hearing this day,
the Court delivered the following:
JUDGMENT
The appellant-insurance company is before this Court in this appeal under Section 30(1) of the Workmen's Compensation Act, 1923 ('the Act' for short), assailing the judgment dated 18.08.2011 in WCA/SR/No.74/2009 on the file of the Labour Officer and Commissioner for Workmen's Compensation Sub- 3 Division No.1, Vijayapur (hereinafter referred to as 'Commissioner' for short).
2. The claimant Raju filed petition before the Commissioner under Section 22 of the Act, seeking compensation for the injuries suffered by him in the road traffic accident which occurred on 06.01.2009 while driving auto bearing No.KA-28/A-2872. It is the case of the claimant that he was working as driver under respondent No.1 to the auto bearing No.KA-28/ A-2872. Due to the accident, the claimant sustained grievous injuries such as fracture of right shoulder bone and clavicle bone. At the time of accident, he was 23 years of age and it is submitted that he was getting salary of Rs.4,500/- per month and Rs.50/- per day as Bhatta. Initially, he took treatment at Government Hospital at Vijayapur and subsequently at private hospital at Vijayapur.
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3. Respondent No.1-owner of the auto appeared before the Commissioner and filed his objections, admitting the relationship of master and servant between him and the claimant. Respondent No.2 - insurance company also appeared and filed its objection denying the petition averments and prayed for rejection of the claim petition. Respondent No.3 remained absent.
4. In support of his case, the claimant produced Exs.P1 to P8, which included his driving licence as well as wound certificate.
5. Based on the material on record both oral and documentary, the Commissioner held that the claimant is working under respondent No.1 and accident has taken place during the course of the employment. Further, the Commissioner granted total compensation of Rs.1,31,970/- with interest at 12% p.a. from 30 days after passing of the judgment. Aggrieved 5 by the same, respondent No.2 therein - insurance company is before this Court in this appeal assailing the liability fixed on it.
6. Heard the learned counsel for the appellant- insurance company and learned counsel for respondent No.1-claimant.
7. Learned counsel for the appellant-insurance company contends that the claimant-driver had no valid licence to drive the auto rickshaw (transport vehicle), but had only LMV (non-transport) licence. Further, the learned counsel contends that the Commissioner without any basis has assessed the disability at 25% to the whole body of the claimant and determined the compensation. According to the learned counsel for the appellant, the fracture of shoulder bones cannot be taken at 25% disability to the whole body. He submits that the Commissioner ought to have taken 1/3rd of 25% as disability of the claimant.
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8. Per contra, learned counsel for respondent No.1-claimant submits that the Commissioner is justified in granting compensation of Rs.1,31,970/-, hence, no interference is called for. Learned counsel further submits that since the claimant had LMV (non- transport) licence, it would cover the driving of LMV (transport) licence also in view of the decision of the Hon'ble Supreme Court in Mukund Dewangan v. Oriental Insurance Co. Ltd. reported in (2017) 14 SCC 663. Further he submits that the Commissioner is justified in assessing the whole body disability of the claimant-driver at 25%. Since he is a driver, his functional disability has to be assessed taking into consideration the medical evidence and wound certificate. He submits that the claimant has suffered fracture of clavicle bone, which would come in the way of functioning of the claimant as driver. Therefore, the Commissioner is justified in assessing the total disability of the claimant at 25%.
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9. On perusal of the impugned judgment, records of the case and on hearing the learned counsel for the parties, the following substantial questions of law would arise for consideration in this appeal:
i) Whether the Commissioner is justified in awarding compensation to respondent No.1/claimant even though he had only LMV (non-transport) licence?
ii) Whether the Commissioner is justified in assessing the whole body disability of respondent No.1/claimant at 25%?
10. To decide the first substantial question of law, it is to be seen first of all as to whether respondent No.1/claimant had the licence. Ex.P6 is the driving licence of the claimant, which indicates that he had the licence to drive LMV (non-transport) vehicle. But, at the time of accident, the driver was driving auto rickshaw, which is a transport vehicle. The Hon'ble Supreme Court in the case of Mukund Dewangan supra at para 8 46 has held that the driver who possesses LMV (non- transport) licence could also drive LMV (transport) vehicle on consideration of the provisions of Motor Vehicles Act. Hence, the said contention of the appellant would not survive for consideration any further. Accordingly, the same is rejected. Accordingly, the first substantial question of law is answered in the affirmative.
11. The next question is as to whether the Commissioner is justified in assessing the whole body disability of respondent No.1/claimant at 25%. There is no dispute that the claimant is a driver by avocation. He was working as driver under respondent No.1. Respondent No.1 admitted that claimant was working under him as driver and he was paying a salary of Rs.4,500/- per month and Rs.50/- per day as Bhatta. The wound certificate-Ex.P3 would indicate that the claimant had suffered fracture of clavicle and right 9 shoulder bones. The doctor in his evidence has stated that he examined the claimant on 29.06.2011 and also he has seen the wound certificate issued by the Government Dist. Hospital, Bijapur and stated that the movements of right shoulder painful and restricted as follows:
Normal Right shoulder Degree % of Disability Shoulder movements of loss loss Movements
1) Flaxion 0-180° 40° 18.1% 7.1% Extension are 0-220°
2) Abduction 0-140° 40° 22.2% Abduction Are 0-180°
3) Rotation 0-135° 55° 30.5% Are 0-180°
12. The movement of right shoulder is very important for a driver, who moves his shoulder while driving the vehicle. If a driver suffers restriction of movement in his right shoulder, it would come in the way of his avocation i.e., driving. The learned counsel 10 for the appellant has contended that the doctor, who has been examined as PW.2 is not a treated doctor and on examination he has given disability certificate. The learned counsel for respondent No.1/claimant submits that the doctor who has issued the disability certificate and who has deposed before the Court is the same doctor, who had issued the wound certificate, since he is a doctor working at Government Hospital, Vijayapur. The doctor, who has given evidence is a Medical Officer working at Government and District Hospital, Vijayapur. Therefore, the contention of the insurance company would not hold ground. The Commissioner, looking into the avocation carried on and the injuries suffered by the claimant has rightly assessed the functional disability at 25%. Hence, the second substantial question of law is also answered in the affirmative.
Accordingly, the appeal is dismissed. 11 The amount in deposit shall be transmitted to the concerned Court at Vijayapur.
Sd/-
JUDGE LG