Madras High Court
The Branch Manager vs Rathinasabapathi Alias Sabapathi on 21 October, 2008
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:21/10/2008 CORAM THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.(MD)No.388 of 2004 and C.M.P.No.2783 of 2004 The Branch Manager, Oriental Insurance Company Ltd.,555/1, G.H. Road, Theni. ...Appellant/2nd Respondent Vs 1.Rathinasabapathi alias Sabapathi, 2.M.R.Ganesh (The 2nd respondent herein is set exparte in the lower Court) ...Respondents/Petitioner 1st respondent Prayer Appeal filed under Section 30 of the Workmen's Compensation Act, against the order dated 14.10.2004 passed in W.C.No.131 of 2003 on the file of Commissioner for Workmen's Compensation, Dindigul (Deputy Commissioner of Labour), Dindigul. !For Appellant ...Mr.K.Bhaskaran ^For 1st Respondent ...Mrs.Vijayakumari Natarajan For 2nd Respondent ...No appearance :JUDGMENT
This Civil Miscellaneous Appeal is filed by the appellant/second respondent/Oriental Insurance Company Limited dissatisfied with the award dated 14.10.2004 passed in W.C.No.131 of 2003 by the Workmen's Compensation Commissioner (Deputy Commissioner)/Tribunal, Dindigul.
2.The Workmen's Compensation Commissioner (Deputy Commissioner)/Tribunal, Dindigul, on an appreciation of oral and documentary evidence, has passed an award on 14.10.2004 awarding a sum of Rs.1,95,348/- (Rupees one lakh ninety five thousand three hundred and forty eight only) as compensation along with interest at 12% per annum from the date of accident till date of payment and has directed the appellant/second respondent to deposit the same within 30 days from the date of receipt of the copy of the award.
3.The short necessary facts of the claim are as follows:
The first respondent/petitioner was employed as driver under the second respondent/first respondent. On 13.04.2003 at about 07.00 hours, he was driving the lorry TN-07-V-1612, belonging to the second respondent from Theni and Tummakundu, on the Usilampatti-Madurai Main Road and near P.M.T. College one vehicle came in front of his vehicle and in order to avoid collision, he suddenly applied the break of his vehicle and as a result thereof, the vehicle got capsized towards the left side and dashed against the road side standing neem tree. Because of the accident, he sustained grievous injuries over his left leg and left hand and abrasion all over the body. The accident took place when he was in regular course of employment and service with the second respondent/first respondent. The Usilampatti Nagar Police have registered a criminal case in F.I.R.No.115 of 2003 under Section 279 and 337 of IPC, on being informed about the accident. He was immediately taken to Government Hospital, Madurai where he remained as an inpatient from 13.04.2003 to 17.04.2003. The accident was intimated to the second respondent/first respondent. At the time of accident, the first respondent/petitioner was aged about 30 years and he was getting a total amount of Rs.4,000/- per month as wages and Rs.50/- as Batta per day from the second respondent. The first respondent/petitioner was not able to perform his duty as a driver. The second respondent/first respondent has insured his vehicle with the appellant/second respondent. Hence, both are jointly and severally liable to pay a sum of Rs.5,00,000/- as compensation with interest. The second respondent/first respondent (owner of the lorry TN-07-V-1612) has remained exparte before the Tribunal.
The appellant/second respondent Insurance Company has filed a counter inter alia taking the pleas that the first respondent/petitioner was not acting as a driver and that he was not employed by the second respondent/first respondent to drive the lorry at the time of accident and that the first respondent/petitioner is bound to prove his employment under second respondent with necessary documents such as wage register and trip sheet at the time of accident and that the first respondent/ petitioner is not having any disability to drive the vehicle and from the investigation it transpires that the first respondent/petitioner even now drives the lorry as usual and the amount claimed is not according to the Workmen's Compensation Act and that the injury has not been a grievous one and the same is simple.
4.Before the Workmen's Compensation Commissioner/ Tribunal, Dindigul, on the side of first respondent/ petitioner witnesses P.W.1 and P.W.2 were examined and Exs.P.1 to P.8 were marked and on the side of appellant/ second respondent, no witness was examined and no documents were marked.
5.The following substantial questions of law that arise for consideration in this Civil Miscellaneous Appeal are:
(1)Whether an action under the Workmen's Compensation Act can be properly found without establishing that the injury sustained was in the course of his employment with the second respondent, when the first respondent/petitioner has not produced any documentary evidence to that effect?
(2)Whether the first respondent/petitioner is entitled to any compensation under the Workmen's Compensation Act in the absence of any proof that he was a workman under the second respondent?
(3)Whether the Workmen's Compensation Commissioner/ Tribunal has erred in coming to the conclusion that the first respondent/petitioner has sustained loss of earning power contrary to the provisions of 4(i)(c)(ii) of the Workmen's Compensation Act, 1923?
(4)Whether the Tribunal has erred in not seeking the assistance by resorting to the Section 20(3) of the Workmen's Compensation Act in regard to the loss of earning power? (5)Whether the Tribunal is correct in holding that the appellant/second respondent Insurance Company is liable to pay the compensation awarded relying upon the evidence of P.W.2, who has not properly assessed the disability sustained due to the injuries?
6.Heard the learned counsel for the appellant and the first respondent/claimant and this Court noticed their respective contentions.
7.Finding on the substantial questions of law No.1 and 2:
According to the learned counsel for the appellant/ second respondent Insurance Company, the Commissioner/ Tribunal has erred in coming to the conclusion that the first respondent/petitioner sustained injuries in an accident which arose out of and in the course of his employment under the second respondent on 13.04.2003 and further that the Tribunal has failed to notice that the first respondent/petitioner has not proved that he has been working as a driver under the second respondent in lorry bearing Registration No.TN-07-V-1612 on the date of alleged accident and moreover, the tribunal has come to the conclusion that the first respondent/petitioner sustained injuries during the course of his employment with the second respondent, without any basis and therefore, prays for allowing the appeal in the interest of justice.
8.P.W.1, the first respondent/petitioner in his evidence has deposed that he has been employed as a lorry driver with the second respondent and that the accident has taken place opposite to P.M.T. College and when he drove the lorry TN-07-V-1612 from Theni to Tummakundu carrying husk, he applied sudden breaks in order not to dash against the lorry which was coming on the opposite side and therefore, the accident has occurred, as a result of which his lorry's side mirror was broken and he sustained grievous injury on his leg toe and further that he sustained abrasion injury on his left hand and that immediately after the accident, he was admitted into the Usilai Government Hospital and on the same day he has been admitted into the Government Rajaji Hospital where he remained as an inpatient for a week and received treatment and later for further treatment he has been admitted into the Theni Government Hospital as an inpatient for one month and received treatment and again on examination at the Madurai Government Rajaji Hospital he has come to know that his nerve in the leg has been cut and for correcting the same he has been advised to undergo a surgery and again he has been admitted as an inpatient for 15 days etc.
9.P.W.1, the first respondent/claimant in his further evidence (in cross examination) has categorically admitted that he has not produced any document to show that he has been employed with the second respondent and further that he has not produced any proof to show about the receipt of salary. At this stage, it is not out of place to point out that P.W.1, the first respondent/petitioner in his evidence has specifically stated that it is not correct to state that he has not been employed under the second respondent. As a matter of fact, P.W.1, the first respondent/petitioner has deposed in his cross examination that it is not correct to state that Kasimayan is the real driver. It is significant to point out that in Ex.P.1-Xerox copy of FIR the name of the informant is mentioned as Kasimayan. The accused name is mentioned as Rathinasabapathi, lorry driver bearing Registration No.TN-07-V-1612 (who is none other than the first respondent/petitioner in the claim petition before the Tribunal). A perusal of Ex.P.1-FIR do indicate clearly that the informant Kasimayan has been serving as driver of the lorry bearing No.TN-07-V-1612, under M.R.Ganesh (second respondent in appeal) for the past six months and with him N.Rathinasabapathi and Muthupandi are working as Assistant Driver and Cleaner respectively and that on 13.04.2003 at about 7'0 clock in the morning from Theni to Tummakundu the lorry was driven with husk loaded by Rathinasabapathi. He along with cleaner were sitting in the cabin and when the lorry came in the Usilampatti Main Road near opposite to P.M.T. College, the driver Rathinasabapathi in order to give way to the vehicle which was coming in the opposite direction drove negligently to avoid collision and while doing so lost its balance and got capsized and dragged to the left side of the road and the lorry dashed against the neem tree, as a result of which the driver Rathinasabapathi has suffered serious injury on his left leg toe and was unconscious and taken by him and Muthupandi in an auto and got admitted into the Usilampatti Government Hospital. Indeed, as seen from Ex.P.1-FIR, the Usilampatti Town Police have registered a criminal case in Crime No.115 of 2003 under Section 279 and 377 of IPC. From Ex.P.4-Driving license of first respondent/petitioner, it is quite evident that the first respondent has been authorised to drive transport vehicle and that the said license is valid upto 24.06.2004. The first respondent/petitioner has been licensed to drive (1)LMV-25/10/1989/TN/60; (2) HPV-17/5/ 1995/TN/60; (3)HGV-17/5/1995/TN/60.
10.It cannot be gainsaid that the term 'workman' is defined in Section 2(n) of the Act, which means any person other than a person whose employment is of a causal nature and who is employed otherwise than for the purpose of employer's trade or business. The object of the Act is to achieve social justice and to provide for a speedy and easy forum for the workman and/or his dependants for claiming compensation in lieu of accident arising out of and during the course of employment. In real sense, to exclude a person from the scope of the definition of workman two ingredients are to be satisfied. They are: (1)The employment of the workman is of a causal nature; and (2)He is not employed for the purposes of the employer's trade or business. In this perspective, once it is proved that the workman has been employed for the purpose of the trade or business of the employer, even though the employment be of a causal nature, the workman will come within the definition of workman, provided, however, other requisite conditions are also satisfied. At this stage, this Court points out that in the decision Mammed V. Gopalan 1995 Lab. I.C. 2767 (Ker), it is held that 'mere casual nature of employment of the claimant on the day of accident is not sufficient to oust him out of the definition of 'workman'. Moreover, in the decision Kamala (smt) V. Varadaraja Setty, 1998 (1) L.L.J. at page 797, it is observed that 'non-production of attendance register by employer respondent being in possession of that register without any reason, adverse presumption is drawn against him, thus showing that deceased was permanent employee and not a causal worker.' Further, this Court points out that in the decision Kerala Balagram V. Kochumon 1998 ACJ at page 996 (Ker.), it is inter alia observed that 'where a workman was engaged for the purpose of employer's business who had sustained injuries in course of employment, then, even if employment is of causal nature, the workman is entitled to compensation.
11.In short, the burden is on the individual who wants to rely on the exceptions to prove that an employee is not a workman. In fact, it is for the employer to prove that the nature of employment is causal. Added further, as the compensation is paid by an employer to the workman, the onus to establish that a particular individual is not workman is on the employer, as per decision Sumitra Devi V. Executive Engineer, Udar Asthan Irrigation Divison, 1997 ACJ 155 (Pat.). No wonder, from the definition of 'workman' as per Section 2(i)(n) of the Workmen's Compensation Act, 1923, there must be relationship of an employer and employee before an individual can be a workman vis-a-vis his employer. Once when such a relationship is proved, it has to be further seen to find out whether the employment of the employee is of a causal nature and that he has been employed for the purpose of employer's trade or business. Notwithstanding the above, under the same definition in order that a person may be considered to be a workman within the meaning of the Act, he must be employed in such capacity as is mentioned in any of the items included in schedule II.
12.In this connection, this Court aptly points out that a driver can be a workman. But all drivers are not workmen. The extent of control of the owner on the driver is the true test in such a case to see whether the driver is a workman or not. Apart from the above, the injury sustained by a workman must be a physical injury on account of accident, it is necessary that the workman must be actually working at the time of injury or accident. Therefore, the three factors are: (1)There must be an injury; (2)Such injury must be caused in an accident; (3)It must be caused in the course of and out of employment, must be proved.
13.It is quite apt to make a significant mention that the word 'and' occurring amidst the words mentioned in bracket in the definition of 'workman' clearly shows that for taking out a labourer from the category of a workman, both the conditions, i.e. that the employment is of a casual nature and, that employment is otherwise than for the purposes of the employer's trade or business should be proved. In other words, both the limbs of the conditions of exclusion have to be satisfied, in the considered opinion of this Court. In the instant case on hand, the second respondent/first respondent, owner of the lorry TN-07-V-1612 has not examined himself before the Commissioner/Tribunal as a witness to rebut or discredit the evidence of the first respondent/petitioner. Indeed, the onus of establishing that the first respondent/petitioner has been excluded from the category of workman is on the employer/second respondent/ first respondent and that in the present case, the same has not been discharged by the second respondent/first respondent as an employer. In fact, the first respondent/ petitioner as P.W.1 in his evidence before the Tribunal has clearly mentioned about the manner and happening of occurrence and further he has succinctly stated that on 13.04.2003 opposite to P.M.T. College at Usilampatti, the accident has occurred when the lorry TN-07-V-1612 carrying husk driven by him from Theni to Tummakundu in order to avoid dashing against the lorry which was coming on the opposite side by applying the sudden breaks.
14.At this juncture, the averment of the informant in Ex.P.1-FIR, K.Kasimayan employed as driver of lorry TN-07-V-1612 (for the past six months) under the second respondent (owner of the lorry) to the effect that the first respondent/petitioner Rathinasabapathi working as Assistant Driver and Muthupandi working as Cleaner along with him prima facie prove that the first respondent/petitioner fall in the present facts and circumstances of the case within the category of 'workman', in the considered opinion of this Court. Normally, the Assistant Driver of a vehicle and the Cleaner are suppose to work under the control of the owner of the vehicle and also under the supervision of driver assisting him in the manner required.
15.It is to be noted that the work 'accident' is derived from the latin verb 'accidere' signifying 'fall upon', Befall, happened, chance. In etymological sense 'anything that happens may be said to be an accident.' The word 'accident' is not defined in the Motor Vehicles Act or the Workmen's Compensation Act, 1923. Hence, the word 'accident' ought to be understood in the popular and ordinary sense as denoting an untoward event which is not expected or designed.
16.In as much as, the first respondent/petitioner has suffered injuries and sustained disability of 27% and his professional disability being 50% as spoken to by P.W.2-Dr.Vijayakumaran by the accident arising out of and in the course of his employment as Assistant Driver/workman, this Court concludes that the injury sustained by the first respondent/petitioner has arisen and in the course of his employment as Assistant Driver of lorry working under the second respondent. As far as the present case is concerned, the relationship of master and servant between the parties viz., the second respondent and first respondent and first respondent/petitioner has been established so as to bring the first respondent/petitioner within the category of workman under the Workmen's Compensation Act and the very fact that informant Kasimayan in Ex.P.1 has made mention of the first respondent/petitioner and the cleaner Muthupandi go to show categorically that the relationship of the first respondent/petitioner with the second respondent is by way of contract of service between them, in the considered opinion of this Court. Further, for maintaining an action under Workmen's Compensation Act, the relationship between the parties as master and servant has to be necessarily established as a precondition, besides the workman to prove that the injury sustained by him has arisen out of and in the course of his employment as Assistant Driver of the lorry/workman and in the instant case, the above requisites have been established to the satisfaction of this Court and therefore, it is held that without establishing the relationship of master and servant between the parties and without establishing that the injury has been sustained arising out of and in the course of ones employment the action for compensation under the Workmen's Compensation Act cannot be founded in law and the substantial question of law 1 and 2 are answered accordingly.
17.Finding on the substantial questions of law No.3 to 5:
The learned counsel for the appellant/second respondent contends that the Commissioner/Tribunal has erred in coming to the conclusion that the first respondent/petitioner has sustained loss of earning power contrary to the ingredients of Section 4(i)(c)(ii) of the Workmen's Compensation Act and that the Tribunal/Commissioner should have disbelieved the evidence of P.W.2-Doctor in as much as no old x-ray corresponding to the fracture has been marked to prove the disability and that the assessment of 27% disability by P.W.2- Dr.R.Vijayakumaran is without any basis and in fact, he has assessed 50% disability for mere movement restrictions and therefore, the assessment of disability sustained by the first respondent/petitioner, done by P.W.2- Dr.R.Vijayakumaran is not as per medical science as per the decision State of Himachalpradesh V. Jayalal and others etc. of the Hon'ble Supreme Court reported in 1999 (8) Supreme 401 and as per the decision A.Mohan V. K.Gunasekaran and another of this Court reported in 2003 (1) L.W. at page 81 and therefore, prays for interference of this Court.
18.It is to be pointed out in regard to the question of entitlement of a claimant in case there is no loss of earnings and there is continuance of engagement a reference to Section 4(i)(c)(ii) of the Act is quite necessary, in the considered opinion of this Court. While considering loss of earning capacity in the case of a permanent partial disablement, the comparison between the salary drawn by the workman before and after the accident, from his master at the time of accident, is not a determinative factor. It is quite pertinent to point out that the legislature by Act 22 of 84 in their wisdom has amended Section 4(i)(c)(ii) by inserting words "(as assessed by the qualified medical practitioner)" after the words "(as is proportionate to the loss of earning capacity)" and resultantly, the Qualified Medical Practitioner is required to assess not only the percentage of physical disability, but also assess the percentage of loss of earning capacity based on the physical disability. Really speaking, the Workmen's Compensation Act is a special legislation for the benefit of workmen and if any benefit is conferred on the workmen by virtue of amended provisions the said benefit is available on the date when the case is finally adjudicated and consequently, a claimant is to receive the benefit of the amended provisions in true letter and spirit. The construction of the Workmen's Compensation Act must be in such a way that it does not act to the prejudice of the individuals to be benefited and consequently the mandatory word 'shall' have its full effect and no discretion is left to the Commissioner to reduce the same while granting the award on the basis of the claim made.
19.In this connection, it is quite appropriate to point out the evidence of P.W.2-Dr.Vijayakumaran who has deposed that he has examined P.W.1/first respondent/petitioner on 23.04.2004 to assess the disability sustained and that the P.W.1/first respondent has took treatment for the bone fracture on the left leg toe where the muscles were torn and that the movements of the left leg toe were reduced to 80% and that the disability sustained is assessed at 27% and the professional disability sustained by P.W.1/petitioner is assessed at 50% as per Ex.P.6 disability certificate. A perusal of Ex.P.6 disability certificate dated 21.07.2004 issued by P.W.2-Dr.Vijayakumaran shows that the P.W.1/first respondent has difficulty in walking and his muscles are contracted at the ankle level and bone interferes with the activities of his daily living etc. Before the Tribunal, P.W.2, Dr.Vijayakumaran has been cross examined on the side of appellant/second respondent Insurance Company. It is the responsibility of an employer to press for medical examination to a workman receiving injuries in an accident. Of course, an employer cannot insist on a medical certificate from the workman. However, if he is not satisfied by the injury, then an opportunity must be provided by the employer of the workman, to get examined him examined free of charge by a medical practitioner within three days from the time when service of notice has been effected, in the considered opinion of this Court. In the instant case, the second respondent/employer has not availed the right of subjecting the first respondent/workman to undergo medical examination by a medical practitioner free of charge. Concededly, the workman's claim for compensation ought to be assessed on the basis of an injury of the same nature and duration as might reasonably have been expected if he had been regularly attended by a qualified medical practitioner. After all, the purpose of Section 11 of the Workmen's Compensation Act, 1923 is that an employer must be satisfied about the injury to the workman and the examination of injured workman by a competent medical practitioner at his cost will satisfy about the nature of injury instead of demanding a medical certificate from the injured workman.
20.To discredit the evidence of P.W.2-Dr.Vijayakumaran to the effect that the first respondent/petitioner has sustained professional disability of 50%, no medical practitioner has been examined as a witness on the side of the second respondent/employer before the Tribunal. The role of a medical practitioner is to submit a data relating to the disability of an injured workman and that the Tribunal/ Commissioner can reach his own conclusion, in the considered opinion of this Court. The Loss of Earning Capacity is to be arrived at by taking into account the destruction or diminution of physical capacity has evidenced by medical proof and then it has to be seen to what extent the diminution or destruction must reasonably be taken to have disabled the affected workman.
21.At this stage, the learned counsel for the appellant Insurance Company contends that P.W.2-Dr.Vijayakumaran has assessed the workman's professional disability at 50% and assessed the partial and permanent disability of the workman at 27% and that the medical expert P.W.2-Vijayakumaran has not given break-up details of 50% professional disability of workman in Ex.P.6-disability certificate and therefore, the Commissioner/Tribunal has erred in relying upon Ex.P.6-disability certificate and the evidence of P.W.2-Dr.Vijayakumaran while calculating the compensation amount. In support of the said contention, the learned counsel for the appellant cites the decision A.Mohan V. K.Gunasekaran and another of this Court reported in 2003-1-L.W. at page 81 wherein it is inter alia observed that 'the doctor certificate simply state that he assessed and certified the disability as partial and permanent at 75% but details in support of his conclusion or the nature of injury or of taking x-ray are not furnished and therefore, he cannot certify about the disability on physical verification regarding internal injury.'
22.Further, the learned counsel for the appellant also places reliance on the decision State of Himachal Pradesh V. Jai Lal AIR 1999 Supreme Court 3318 at 3321 whereunder the Honourable Supreme Court as among other things observed as follows:
'An Expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.'
23.As far as the present case is concerned, the first respondent/workman has examined P.W.2-Dr.Vijayakumaran as a witness on his side and that the said medical expert in his evidence has inter alia deposed that the professional disability of the first respondent/workman has been assessed at 50% and further that he has been subject to cross examination on the side of appellant. In fact, a perusal of P.W.2 doctor's evidence in cross examination indicates that not even a suggestion has been put to the medical expert on the side of appellant/Insurance Company that the professional disability of 50% assessed by him is contrary to the ingredients of Section 4(i)(c)(ii) of the Workmen's Compensation Act. This Court points out that the words 'assessment of loss of earning capacity by the qualified medical practitioner under Section 4(i)(c)(ii) have some purpose and it is not a case of ambiguity at all. So long as there is no provision which enables the Commissioner to determine the compensation ignoring medical practitioner's report there is no question of awarding it by the Commissioner, unless he wants a second report from the medical board as per decision New India Assurance Company Limited V. Sreedharan 1995 L.L.R. 376 (Ker.).' Moreover, the appellant/Insurance Company has not examined any medical practitioner on its side to rebut or discredit the evidence of P.W.2- Dr.Vijayakumaran in regard to the 50% professional disability sustained by the first respondent/workman. Added further, this Court also points out that the compensation in regard to non-scheduled injury will be based on the assessment by the medical practitioner as per the decision United India Insurance Company Limited V. Rajeev 2002 L.L.R. 289. Moreover, in D.Venu V. Senen Fernandez 1995 II L.L.J. at page 1113, it is observed that the Commissioner can rely on the doctor's certificate ascertaining the disability for compensation. Therefore, the evidence of P.W.2-Dr.Vijayakumaran in regard to the 50% professional disability sustained by the first respondent/workman remains unimpeached and in fact, the same is unassailable in the present case. Resultantly, this Court is left with no option but to hold that in regard to the loss of earning capacity of the first respondent/workman, there is evidence of P.W.2-doctor who has opined that the professional disability sustained by the workman is assessed at 50% and therefore, by placing reliance on the evidence of P.W.2-doctor, the Commissioner determining the loss of earning capacity of the first respondent/workman at 50% cannot be in violation of Section 4(i)(c)(ii) of the Workmen's Compensation Act, 1923 and the point is answered accordingly.
24.Though Section 20(iii) of the Workmen's Compensation Act, 1923 enables the Commissioner/Tribunal to choose one person or more persons possessing special knowledge of any matter relevant to the matter under enquiry to assist him in holding the enquiry and to arrive at a decision for determining the compensation amount, it is to be noted that the law gives greater latitude to the Commissioner for workmen's compensation than there would be in the case of a country Courts Judge in England sitting as Arbitrator under the Workmen's Compensation Act, 1923 as per decision Ali Akbar V. Jawa Bengal Line, Calcutta AIR 1937 (cal) page 696. It cannot be gainsaid that in the decision Richardson V. Redpath Brown and Company Limited., (1949) 1 All E.R. 110, it is laid down that 'it was no part of functions of a medical assessor sitting with the Commissioner to conduct a personal examination of the workman or to report to him about the effect of the examination and his deductions. His functions are to advise on difficult medical questions arising upon medical evidence such as the meaning of technical terms and expressions.'
25.The learned counsel for the appellant cites the decision National Insurance Company Limited V. Abdul Majeed and another 2002 ACJ 1497 wherein it is inter alia held that 'the Commissioner has arbitrarily fixed the loss of earning disability at 100% contrary to the medical practitioner certifying that the workman has suffered permanent disability of 20%.' Therefore, on the basis of facts and circumstances attendant in the present case, this Court safely concludes that the Commissioner/ Tribunal has not committed any error in not seeking the assistance of a person possessing special knowledge of any matter relevant to the matter under enquiry to assist him in the conduct of enquiry as per Section 20(3) of the Act in regard to the assessment of loss of earning power and the point is so answered.
26.The Commissioner/Tribunal has fixed the age of the first respondent/workman as 33. The date of accident is on 13.04.2003. In Ex.P.4- Driving Licence of the first respondent/workman, the date of birth is mentioned as 08.05.1969. Hence, this Court determines the age of the first respondent/workman as 33 years as per Ex.P.4-Driving Licence, on the date of accident. Though P.W.1/workman in his evidence has stated that he received the salary of Rs.4,000/- per month and further received a daily batta of Rs.50/- as incentive when he undertook a trip, no satisfactory documentary proof has been produced in the case. However, batta paid to a workman per day to cover special expenses incurred by him due to his nature of his employment does not amount to wages for the purpose of computing compensation, in the considered opinion of this Court. Therefore, there is no infirmity or illegality in the Commissioner/Tribunal fixing the total salary of the first respondent/workman per month as Rs.3239/- (basic salary Rs.1781/- and D.A. Rs.1448/-) as per G.O.No.2 D 102 Labour and Employment Department dated 22.09.1999 under the payment of Minimum Wages Act and accordingly, this Court fixes his monthly salary as Rs.3239/-. Before passing any order of compensation, the Commissioner/Tribunal is duty bound to assess the actual loss of earning capacity on the basis of the evidence required under Section 2(1) and Section 4(1) of the Workmen's Compensation Act. Only when the qualified medical practitioner has not assessed the actual loss of earning capacity of the claimant then only it can be said that the Commissioner/Tribunal has failed to arrive at a just conclusion. But in the instant case, the Commissioner/ Tribunal has taken the professional disability of the first respondent/workman at 50%, as spoken by P.W.2-doctor. Indeed, the award of compensation as per Workmen's Compensation Act by the Commissioner cannot be cribbed. As per Schedule IV of the Workmen's Compensation Act, the factor to be taken into account for working out the lump sum equivalent of compensation amount in case of permanent disability, in respect of an individual age 33 is 201.66 and accordingly, the compensation amount of Rs.1,95,348/- (60 x 100 x 3229 x 201.66 x 50/100) as fixed by the Commissioner/ Tribunal, payable by the appellant/Insurance Company, is just, fair and prudent one and the same does not require any interference in the hands of this Court.
27.Coming next to the award of 12% interest per annum granted by the Commissioner/Tribunal to the compensation amount of Rs.1,95,348/-, the learned counsel for the appellant submits that the grant of 12% interest per annum by the Tribunal is not correct in the eye of law and the same is without basis. The learned counsel for the appellant cites the decision The Managing Director, P.T. MGR Transport Corporation, now known as Tamil Nadu Transport Corporation (VPM Division III) Ltd., Kancheepuram and Another V. Lakshmi Govardan and Others 2004 (2) TN MAC 55 (DB) wherein this Court has granted total compensation of Rs.85,000/- as rounded off figure with interest at 9% per annum. Ex.P.5-Policy is in the name of the second respondent/owner and the package policy for Zone A pertains to goods carrier commercial vehicle (other than 3 WH) has mentioned in the Policy. In the decision New India Assurance Company Ltd., V. Harshadbhai Amrutbhai Modhiya and another 2006(3) L.L.N. 771, the Hon'ble Supreme Court has observed as follows:
"By reason of the provisions of the Act, an employer is not statutorily liable to enter into a contract of insurance. Where, however, a contract of insurance is entered into by and between the employer and the insurer, the insurer shall be liable to indemnify the employer. The insurer, however, unlike under the provisions of the Motor Vehicles Act does not have a statutory liability. The Act does not contain a provision like S.147 of the Motor Vehicles Act. Section 17 of the Act does not provide for any restriction in the matter of contracting out by the employer vis-a-vis the insurer. The terms of a contract of insurance would depend upon the violation of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided for therein. With a view to minimise his liability, an employer can contract out so as to make the insurer not liable as regards indemnifying him in relation to certain matters which do not strictly arise out of the mandatory provisions of any Statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law. [Paras.14, 15 and 19] Therefore, the appellant is not liable for the interest. However, the employer shall be liable to pay the amount of interest to the claimant. [Para. 21] The law relating to contracts of insurance is part of the general law of contract. On a construction of the contract in question it is clear that the insurer had not undertaken the liability for interest and penalty, but had undertaken to indemnify the employer only to reimburse the compensation the employer was liable to pay among other things under the Workmen's Compensation Act. [Para.23] Unless one is in a position to void the exclusion clause concerning liability for interest and penalty imposed on the insured on account of his failure to comply with the requirements of the Workmen's Compensation Act, 1923, the insurer cannot be made liable to the insured for those amounts.
[Para.23] In Workmen's Compensation Act, there are no provisions corresponding to those in the Motor Vehicles Act, insisting on the insurer covering the entire liability arising out of an award towards compensation to a third party arising out of a motor accident. Neither in the Act nor in any other, there is any provision which stands in the way of an insurance company and the insured entering into a contract confining the obligation of the insurance company to indemnify to a particular head or to a particular amount when it relates to a claim for compensation to a third party arising under the Workmen's Compensation Act. Therefore, the obligation of the insurance company clearly stands limited and the relevant proviso providing for exclusion of liability for interest or penalty has to be given effect to. The entitlement of the claimant under the Workmen's Compensation Act is to claim the compensation from the employer. As between the employer and the insurer, the rights and obligations would depend upon the terms of the insurance contract. Construing the contract involved here it is clear that the insurer has specifically excluded any liability for interest or penalty under the Workmen's Compensation Act and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under the Workmen's Compensation Act."
28.An important fact to be noticed is that the penalty and interest are special provisions under Section 4-A of the Workmen's Compensation Act, 1923. Under Section 4-A, the workman becomes entitled to the compensation as soon as it falls due i.e. on the date the injury is caused and not at any later date. If the employer has taken steps to inform the Commissioner or to pay the amount of compensation then in the instant case, the workman would not have suffered whatever may be the duration period and therefore, the award of interest from the date it fell due can generally be ignored. But the first respondent/workman has been perforced to approach the Commissioner/Tribunal in projecting his claim for compensation.
29.This Court points out the decision P.J.Narayan V. Union of India and others 2006 (3) L.L.N. 770 wherein the Hon'ble Supreme Court has observed that 'the statutory liability under the Workmen's Compensation Act is on the employer and that an insurance is a matter of contract between the insurance company and the insured and that it is always open to the insurance company to refuse to insure and similarly, they are entitled to provide by contract that they will not take on liability for interest and in the absence of any Statute to that effect, insurance companies cannot be forced by Courts to take on liabilities which they do not want to taken on.' Further, this Court also cites the decision Pratab Narain Singh V. Srinivas AIR 1976 SC at page 222 wherein the Hon'ble Supreme Court has inter alia held that 'the liability of an employer arises as soon as the personal injury is caused and the Section 19 of the Workmen's Compensation Act, 1923 does not suspend such liability and where the employer fails to pay the compensation and also makes no professional payment under Section 4(2) but challenges the jurisdiction of the Commissioner, the employer is liable to pay interest and penalty.'
30.A perusal of Ex.P.5-Package Policy for Zone A Goods Carrying Comm. Vehicle (other than 3 wh) standing in the name of second respondent/owner speaks of the policy 'covering the use of the vehicle for any purpose other than
(b)Carriage of goods (other than samples or personal luggage)/(c)Organized racing/(d)Pace making/(e)Speed testing /(f)Reliability Trials/(g)Any purpose in connection with Motor Trade (a)Hire or Reward other than the purpose of driving tution. Moreover, the limits of liability are confined to the death of or bodily injury and such amount as if necessary to meet the requirements of the Motor Vehicles Act, 1988. Under Section II-(II) if the policy and the Damage to third party property Rs.760,000.00 deductible under good Rs.600.00.' Unlike the scheme of the Motor Vehicles Act, the Workmen's Compensation Act does not confer a right on the claimant for compensation under that act to claim the payment of compensation in its entirety from the insurer himself. The entitlement of the petitioner/claimant under the Workmen's Compensation Act is to claim the compensation from the employer. In Ex.P.5-insurance policy, there is nothing to suggest that the appellant/insurer has specifically agreed to pay interest or penalty under the Workmen's Compensation Act, 1923 etc. As between the employer and the insurer the rights and obligations are to depend upon the terms of insurance contract. Construing the Ex.P.5-policy contract, this Court is of the considered view, the appellant/Insurance Company cannot be mulcted with the liability to pay interest for the compensation amount of Rs.1,95,348/- awarded by the Commissioner/Tribunal and in that view of the matter, this Court holds that the award of interest at 12% per annum by the Commissioner/Tribunal towards the compensation amount granted is unsustainable in the eye of law and to prevent the aberration of justice and to meet the ends of justice, this Court further directs the first respondent/ workman to recover the interest at the rate of 9% per annum from the date of accident till the date of payment from the second respondent/owner of the lorry and the finding is recorded accordingly.
31.Earlier, in C.M.P.(MD).No.2783 of 2004, this Court has inter alia permitted the first respondent/workman to withdraw a sum of Rs.75,000/- from the deposit made by the appellant and directed the balance amount to be invested in fixed deposit in a Nationalised Bank initially for a period of one year and to renew the same periodically pending further orders.
In the result, the first respondent/workman is entitled to receive a sum of Rs.1,95,348/- [less a sum of Rs.75,000/- if withdrawn already] as compensation from the appellant/ Insurance Company. Liberty is given to the first respondent/ workman to receive the balance amount to which he is entitled to, from the Commissioner/Tribunal in the manner known to law. Equally, the appellant/Insurance Company is directed to receive the interest amount deposited by it from the Commissioner/Tribunal in accordance with law. Further, the first respondent/workman is directed to recover the interest amount at the rate of 9% per annum from the date of accident till date of payment for the compensation amount of Rs.1,95,348/- from the second respondent/owner/employer in accordance with law who shall pay the same and the Civil Miscellaneous Appeal is allowed in part in above terms, leaving the parties to bear their own costs. Resultantly, the award passed by the Commissioner/Tribunal in W.C.No.131 of 2003 dated 14.10.2004 is modified. Consequently, connected miscellaneous petition is closed.
Sgl To
1.The Deputy Commissioner of Labour,The Workmen's Compensation,Dindigul.
2.The Record Keeper,V.R.Section,Madurai Bench of Madras High Court,Madurai.