Gujarat High Court
New vs Rasulbhai on 1 December, 2011
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
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FA/24/1992 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 24 of 1992
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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NEW
INDIA ASSURANCE CO. LTD. - Appellant(s)
Versus
RASULBHAI
HAJIBHAI GHORI & 2 - Defendant(s)
=========================================================
Appearance
:
MS
LILU K BHAYA for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 01/12/2011
ORAL
JUDGMENT
Challenge in this appeal is to the impugned judgment and award rendered by learned Commissioner for Workmen's Compensation & Civil Judge (S.D.), Mehsana on 4.4.1991 in W.C.Case Nos.23 of 1989 and 24 of 1989 whereby the claims made by respondents No.1 and 2 herein (original claimants) came to be partly allowed.
Claimants' case as unfolded during the pendency of their claim petitions was that respondent No.1 - Claimant Rasulbhai Hajibhai Ghori was serving as Driver in Truck bearing No.GRT-4774 belonging to respondent No.3 herein - Hajibhai Chhatabhai Ghori (original respondent No.3). Rasulbhai was thus employee of owner of the Truck, namely, Hajibhai. The claimant Rasulbhai in capacity as driver was getting a monthly salary of Rs.1200/- and he used to get daily allowance of Rs.25/- whenever he had to go out of station. It is the case of the claimant - Driver that thus he was getting an amount of Rs.1700/- p.m. It is the case of the claimants that respondent No.2 - Gulamhaider Gulam Maiyuddin herein (original claimant No.2) was employed as Cleaner in the Truck of his employer - respondent No.3 Hajibhai and his monthly salary was Rs.900/- and he used to get daily allowance of Rs.25/- whenever he had to go out of station and, thus, it is stated that the Cleaner - Gulamhaider used to earn around Rs.1400/- p.m. 2.1 It is the case of the claimants that on 30.10.1988, certain barrels were required to be brought in the Truck and for that purpose, the labourers were loading the barrels in the Truck. The Truck was parked near the corner of the road. The ground on which the Truck was parked was soft and due to the heavy weight of the Truck, the surface gave way to the Truck and the Truck slipped down. On account of said vehicular accident, the Truck turned turtle and Driver Rasulbhai and Cleaner Gulamhaider sustained serious bodily injuries. Their injuries resulted into fractures. Both the claimants were immediately admitted in Civil Hospital, Ahmedabad, where they took the treatment. It is the case of the claimants that their injuries resulted into permanent disability affecting their earning capacity.
Before the Workmen's Compensation Court, the respondent No.2 Hajibhai herein (original opponent No.1), the owner of the Truck and the employer of the claimants filed his written statement at Exh.8. He accepted the factum of accident. He also accepted that the claimants were his employees, Driver and Cleaner respectively. He also admitted that he had insured his vehicle with the appellant Insurance Co. (original opponent No.2).
The appellant Insurance Co.
resisted the claims of the claimants by filing written statement at Exh.16. The Insurance Co. pleaded ignorance about the salary paid by the employer to the claimants. The Insurance Co. also pleaded ignorance about the factum of accident and contended that the accident was not reported to the Insurance Co. by the owner of the Truck. However, the Insurance Co. admitted that at the relevant time, the vehicle was insured with it.
The trial Court framed relevant issues at Exh.14 and recorded oral evidence. The claimants also examined concerned Medical Officer, who issued the disability certificates.
After appreciating the evidence on record and the submissions advanced on behalf of both the sides, the trial Court, ultimately, partly allowed both the claim cases as under:-
"Both these applications are partly allowed.
The applicant/Rasulbhai Hajibhai Ghori of W.C.C. No.23/89 is entitled to recover the amount of compensation of Rs.21,690/- from the opponents jointly and severally.
The applicant is also entitled to recover the interest on this amount at the rate of 6% per annum from the date of the accident i.e. 30.10.1988 till the realization of this amount from the Opponent No.1 only. The applicant is also entitled to get he 50% penalty of above award from the opponent No.1 only.
The applicant/Gulamhaider Gulam Maiyuddin Momin of W.C.C. No.24/89 is entitled to recover the amount of Rs.1,08,455/- from the opponents jointly and severally.
The applicants is also entitled to recover the interest on this amount at the rate of 6% per annum from the date of the accident i.e. 30.10.1988 till the realization of this amount from the opponent No.1 only.
The applicant is also entitled to recover the penalty of 50% of above award from the opponent No.1 only.
Copy of this judgment be placed in W.C.C.No.24/89.
Award be drawn accordingly."
Ms.J.R. Hingorani, learned advocate for Ms.Lilu Bhaya, learned advocate for the appellant - Insurance Co. at the outset submitted that the trial Court committed serious illegality in directing the Insurance Co. to pay for the compensation. It was submitted that so far as the Motor Vehicles Act, 1988 is concerned, the Insurance Co. is made liable u/s.148 of the Motor Vehicles Act, 1988. The Tribunal under the Motor Vehicles Act has powers to pass an award against the Insurance Co. and, therefore, the award passed by the learned Commissioner for Workmen's Compensation is not valid against the appellant Insurance Co.
7.1 Ms.Hingorani, learned advocate assailed the impugned common judgment and award rendered by the Workmen's Compensation Court on the ground that there is no evidence on record to come to the conclusion that what was the exact salary of the claimants. She emphatically submitted that in the instant case, the claimant - Driver Rasulbhai happens to be the son of the owner and so-called employer respondent No.3 Hajibhai and, therefore, the trial Court erred in observing that father had employed his son as Driver and, thus, the master and servant relationship cannot be said to have been duly proved. Ms.Hingorani, learned advocate for the appellant further contented that even the compensation awarded by the trial Court is on much higher side. The claimant did not produce satisfactory medical evidence.
7.2 Ultimately, it is submitted that the appeal may be allowed and the impugned common judgment and award may be set-aside.
None present for the respondents though duly served.
Examining the impugned judgment and award rendered by the Workmen's Compensation Court and the relevant papers, it is clear that the respondent No.3 Hajibhai being owner of the Truck and the employer of both the claimants in his written statement admitted that both the claimants were his employees. He also admitted the factum of accident. The appellant - Insurance Co. in its written statement before the Workmen's Compensation Court pleaded ignorance about the accident, so also the master - servant relationship between Hajibhai and the claimants. However, the Insurance Co. admitted that at the relevant time, the vehicle was insured with it.
Since at the time of argument, this appeal is mainly pressed on the count of quantum of compensation, the other aspect regarding the accident and/or the negligence etc. are not required to be elaborately dealt with in this judgment. Suffice it to say that while replying to issues No.1 and 2, the Workmen's Compensation Court took into consideration not only the oral evidence adduced before it, but took into consideration the copies of FIR, Exh.38, Panchnama of scene of occurrence, Exh.26 and the pleadings of the parties. I am, therefore, of the considered opinion that the Workmen's Compensation Court rightly replied issues No.1 and 2 in the affirmative. There is no dispute that the accident occurred during the course of employment. However, on behalf of the appellant, it has been seriously disputed that admittedly the claimant - Driver Rasulbhai happened to be the son of the respondent No.3 Hajibhai and, therefore, the trial Court erred in observing that there was master - servant relationship between the two. Perusing the impugned judgment and award rendered by the trial Court, it appears that the same contention was raised before it and assigning cogent and convincing reasons, the trial Court rightly came to the conclusion that only because the claimant - Driver is the son of the owner, it cannot be presumed that they are not having the relationship of master and servant.
As per the case of the claimant -
Driver Rasulbhai, at the time of the accident, his monthly salary was Rs.1200/- and he was getting daily wages of Rs.25/- whenever he was required to go out of station. Thus, he claimed that he was earning Rs.1700/- p.m. Likewise the say of the claimant Gulamhaider was that his monthly salary was Rs.900/- and he was also getting daily wages at the rate of Rs.25/- whenever he was required to go out of station and he claimed that he was earning Rs.1400/- p.m. Ms.Hingorani, learned advocate for the appellant submitted that the daily dearness allowance, which the claimants used to get only if they had to go out of station, cannot form part of the regular salary. It is, therefore, submitted that the Workmen's Compensation Court thus committed serious error in taking into consideration the daily allowance forming part of their regular salary.
Now on this aspect, if the impugned judgment and award rendered by the Workmen's Compensation Court is considered and more particularly the discussions made regarding issues No.3, 4 and 5 is considered, so far as the claimant
- Driver Rasulbhai is concerned, though the trial Court accepted that on the date of the accident, he was earning Rs.1700/- p.m., but for the purpose of calculation, it has been clearly observed that it should be believed that the claimant - Driver Rasulbhai was earning Rs.1000/- p.m. There is no dispute that at the time of accident, he was aged about 26 years. The trial Court, thereafter, further reduced the amount by 50% and considered Rs.5000/- p.m. and as per the settled table, the relevant factor applied was 216.91 and came to the conclusion that the total amount comes to Rs.1,08,455/-. The trial Court then took into consideration the medical evidence of Dr.Mukesh R.Shah, so also the treatment papers, Exhs.27 and 28 as well as the disability certificate issued by Dr.Patel at Exh.41 wherein the Medical Officer opined that the claimant had sustained 20% permanent partial disability. Therefore, the trial Court reduced the figure of Rs.1,08,455/- by 80% and, ultimately, came to the conclusion that the claimant - Driver Rasulbhai was entitled to recover Rs.21,690/- by way of compensation.
Almost similar is the case of claimant - Cleaner Gulamhaider. In paragraph 12 in the impugned judgment, the Tribunal undertook the exercise of fixing the quantum of compensation for him. As per his case, he was getting Rs.500/- p.m. as salary, plus daily allowance whenever he had to go out of station and the trial Court, therefore, held that he was earning Rs.1400/- p.m. The trial Court thereafter observed that it should be believed for the purpose of calculation that the claimant
- Cleaner Gulam Haider must be getting monthly salary of Rs.1000/-. He was also aged about 26 years at the time of accident. The trial Court thereafter reduced the said amount by 50% and observed that if this amount of Rs.500/- is multiplied by the relevant factor of 216.91 then the amount comes to Rs.1,08,455/-. As per the medical evidence on record, he had sustained permanent partial disability of 75%. The trial Court observed that the medical evidence revealed that the claimant had fracture of Spinal Chord and due to said injury, he had got paralysis in two legs and, therefore, practically he was unable to do any labour work. On this line, there was clear medical evidence on record. In paragraph 12 in the impugned judgment, the trial Court relied upon certain decisions to arrive at the conclusion that in the similar situation, the loss of income should be considered permanent and the disability should be considered to be 100%. In paragraph 13 in the impugned judgment, the trial Court relied upon a case of Punambhai Khodabhai Parmar Vs.G.Kenel Construction and another reported in 1984 ACJ 739.
In the said case, though Workmen's Commissioner Court assessed disablement at 70% relying upon the medical evidence on record, this Court held that the disability was total and, hence, award was enhanced. Ultimately, in paragraph 15 in the impugned judgment, the trial Court held that keeping in mind above stated principles established in the cited authorities, so also taking into consideration the medical evidence on record and the nature of serious injuries sustained by the claimant Gulamhaider, as also considering the nature of work being purely manual labour work and in future he would be unable to do any sort of labour work, came to the conclusion that there was total disability, affecting the earning capacity of the Cleaner. Ultimately, so far as the claimant
- Cleaner Gulamhaider was held to be entitled to recover compensation of Rs.1,08,455/-.
Seen in the above context, I do not find any illegality or any irregularity having been committed by the trial Court while fixing the quantum of compensation. As admitted by the Insurance Co., at the relevant time, the vehicle was insured with the Insurance Co. In the memo of appeal, though the contention is raised that Insurance Co. cannot be held liable in such case like a case under the Motor Vehicles Act, but in support thereof, nothing is shown. It is pertinent to note that so far as interest and penalty amount is concerned, the Insurance Co. was not saddled with said liability and for that purpose, the trial Court took into consideration Section 4(A) of the Workmen's Compensation Act.
In the above view of the matter, I do not find any justifiable ground to interfere with the impugned judgment and award rendered by the learned Commissioner for Workmen's Compensation & Civil Judge (S.D.), Mehsana. The appeal, therefore, lacks merits and deserves to be dismissed.
For the foregoing reasons, the appeal stands dismissed. There shall be no order as to costs.
(J.C.UPADHYAYA, J.) (binoy) Top