Jammu & Kashmir High Court
National Insurance Co. Ltd vs Dheeraj Singh And Another on 7 August, 2020
Equivalent citations: AIRONLINE 2020 J AND K 396
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MA No. 140/2013
CM 1265/2020
Reserved on:- 29.07.2020
Pronounced on:- .7. 08.2020
National Insurance Co. Ltd
......Appellant(s)
Through :- Mr. Suneel Malhotra Advocate
v/s
Dheeraj Singh and another
......Respondent (s)
Through :- Mr. Vipin Gandotra Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
::: : JUDGMENT
1 This appeal in terms of Section 13 of the Employees‟ Compensation Act, 1923 (hereinafter referred to as the „Act‟) filed by the National Insurance Company Ltd. is directed against the award dated 12.12.2012 passed by the Commissioner, under Employees Compensation Act (ALC), Jammu (hereinafter referred to as the „Commissioner‟) in File No.INJ-68-EC Act/10 titled "Dheeraj Singh vs. National Insurance Company Ltd and another, whereby respondent No.1 (hereinafter referred to as the „claimant‟) has been held entitled to a sum of Rs.12,28,161/- along with interest at the rate of 12% per annum.
2 Briefly stated the facts leading to the filing of this appeal are that respondent No.2 herein, the owner of the Truck bearing Registration No. JK02AR-7395 had engaged his son Dheeraj Singh, claimant herein as Driver to drive his Truck. On 20th August, 2010, while the claimant was driving the 2 MA 140/2013 Truck from Jammu to Jallandhar, he lost control over it near Kotli Adda and collided with another Truck resulting in the motor vehicle accident due to which the claimant suffered injuries on his head, nose, left knee and also had a fracture of left leg. He was not compensated by his employer and, therefore, he filed a claim petition before the Commissioner. He claimed his monthly salary to be Rs.8000/- per month besides Rs.2000/- as trip allowance.
3 On being summoned, the insurer appeared before the Commissioner and resisted the claim petition of the claimant on numerous grounds. Even the relationship of employer and employee existing between the claimant and respondent No.2 was also denied. It was claimed that the claim petition had been filed by respondent Nos. 1 and 2 in collusion. 4 On the basis of pleadings of the parties, the Commissioner framed the following issues:
(i) Whether the petitioner „Dheeraj Singh‟ falls under the definition of " employee" as prescribed under the Employees‟ Compensation Act 1923 ?OPP.
(ii) What was his age and wages at the time of accident ? OPP
(iii) Whether the petitioner met with an accident arising out of and during the course of his employment for respondent No.2 ?
OPP
(iv) Whether the vehicle in question was driven at the time of accident in violation of terms and conditions of insurance policy ?OPR-1
(v) Relief.
5 The claimant with a view to substantiate his claim and to discharge the onus of proof of issue Nos. 1 to 3 examined himself as his own witness and also recorded the statement of Dr. Rajesh Gupta as his witness. The insurer, however, led no evidence in rebuttal.
3MA 140/2013 6 The Tribunal, on the basis of evidence before it, held issue No.1 proved in favour of the claimant. It was found established that the claimant was the employee of respondent No.2,the owner of the offending vehicle as driver. The FIR regarding the accident registered at Police Station Sadar Pathankote also supported this fact. It was also firmly established that the claimant had met with an accident which arose out of and during the course of employment of respondent No.2.
7 After addressing the issue Nos. 1 to 3, the Tribunal proceeded to determine the compensation payable under the provisions of the Act to the claimant in the light of evidence on record and the nature of injuries suffered. The Tribunal found the age of the claimant as 45 years. The Tribunal also took the monthly wages of the claimant as Rs.8000 per month. Although, the disability certificate issued by the Doctor mentioned the physical disability of the claimant as 40%, but the Tribunal looking to the nature of injuries and the avocation, the claimant was engaged in, took loss of his earning capacity to the extent of 100%. Accordingly, the compensation payable to the claimant was computed and the impugned award passed by the Tribunal. 8 In the backdrop of aforesaid factual position, the insurer has proposed few questions of law which as per the learned counsel for the insurer are substantial questions of law emanating from the award.
(i) Whether the evidence on record calls for discussion for alternative view as the permanent disablement of respondent No.1/claimant is 40%. The said disablement has not been stated or claimed as to be a "total disablement" as per clause 2(i) of Employees Compensation Act. Hence taking the 40% permanent disablement as total disablement by the Commissioner under Employees Compensation Act and awarding compensation on the basis of 10% loss of earning capacity, is, therefore, perverse and bad in the eyes of law ?
4MA 140/2013
(ii) Whether the Commissioner has not appreciated the material and facts on record and thus committed grave error of law by taking 40% permanent disablement when the Doctor has stated before the Commissioner that the said permanent disablement is of particular limbs and not of the whole body. Hence, the Commissioner by assessing the compensation taking the loss of earning capacity as 100% instead of 40% permanent disablement thus has exceeded its jurisdiction in awarding the compensation under the Act ?
(iii) Whether the Commissioner can award the compensation under Employees Compensation Act when there is no relation of employer and employee between respondent No.1/claimant and respondent No.2 the owner of the vehicle and when the injuries suffered by respondent No.1/claimant or not injuries suffered during the employment ?
(iv) Whether the Commissioner can on its own against the statement of the injured claimant increase the wages than as stated by the respondent No.1/claimant herein and thereby assess the compensation on the basis of said monthly wages.
(v) Whether the Commissioner can allow the medical expenses to the respondent No.1/claimant when the medical expenses incurred by respondent No.1/claimant have not been proved to have been incurred in accordance with law.
(vi) Whether the Commissioner can ignore the material and evidence on record before it which substantiate the fact that the injured claimant is the son and the employer is the father whether there can be of a relation of employer and employee between father and son as has been here in this case ?
(vii) Whether the Commissioner under the Employees Compensation Act has the jurisdiction to award interest @ 12% from the date of accident when there is no evidence on record that the insured had informed the insurer about the accident of his employee in accordance with terms and conditions of the policy and thus the payment of interest is the liability of the owner of the vehicle/employer respondent No.2 herein.
5MA 140/2013
(viii) Whether the Commissioner under Employees Compensation Act has to award the interest only after one month when the compensation becomes due and can the rate of interest be more than what has been prescribed by the Reserve Bank of India from time to time as at present the rate of interest as awarded by different judicial forums is 6% ?
(ix) Whether the Commissioner under Employees Compensation Act can ignore the date of birth as recorded on the documents viz date of birth certificate or matriculation certificate etc and thereby can believe only on the statement of the claimant for applying the appropriate multiplier as per Employees Compensation Act ?
(x) Whether Commissioner under Employees Compensation Act who is not holding the qualification as prescribed under Section 20 of the Act can pass the award like impugned herein ? 9 Having heard learned counsel for the parties and perused the record, I am of the view that most of the questions formulated and proposed by the insurer are mixed questions of fact and law and, therefore, cannot be termed as substantial questions of law. However, question No. (i), (iv) and (vii) are the substantial questions of law which may require determination in this appeal. However, for facility of considering the questions in their true perspective, it would be necessary to reframe the same for adjudication in this appeal:
(i) Whether permanent disablement of 40% certified by the qualified medical practitioner has rendered the claimant incapacitated for all work which he was capable of performing at the time of accident resulting in his disablement and, therefore, entitled to compensation, to be computed in terms of Section 4(1)(b) of the Act ?
(ii) Whether the finding of the Commissioner that the claimant, at the time of accident, was earning wages of Rs.8000 per month when he had himself claimed his monthly wages to be Rs.6000/- is perverse and based on no evidence. ?
(iii) Whether in terms of Section 4-A (3)(a) of the Act, the ALC could have awarded the interest at the rate of 12% per annum or was 6 MA 140/2013 obliged to grant interest at such rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by Notification in the official Gazette ?
Question No.(i) 10 From the statement of Dr. Rajesh Gupta, an Orthopaedician, it clearly comes out that the claimant was a treated case of shaft of femur left I/L noil with avascular nescrosis of left hip with fracture dislocation right ankle. The Doctor has termed the disability of the claimant as 40% permanent in nature and the disability pertains to left lower and the right lower limb. His further statement is that the claimant, because of his injuries and disablement, would have difficulty in sitting, squatting and running and will also have difficulty in performing the job of a driver. He, however, has not commented with regard to the loss of earning capacity of the claimant. 11 The Tribunal, placing strong reliance on the statement of Dr. Rajesh Gupta, particularly with regard to his certification that, with the permanent disablement suffered by the claimant, it would be difficult for him to perform the job of driver, has computed the compensation in terms of Section 4(1)(b) of the Act.
12 It is here Mr. Malhotra, learned counsel for the insurer, joins issue and submits that 40% permanent disablement suffered by the claimant does not, ipso facto, mean that the claimant is totally incapacitated to perform the job of driver. He further submits that accepting the statement of Doctor as a gospel truth, it would only mean that the claimant may have some difficulty in performing the job of driver.
13 I have given my thoughtful consideration to the plea of learned counsel for the insurer and I find no substance in it. A person suffering from permanent disablement of 40% of the lower left and the right limb may not have only some difficulty in performing the job of a professional driver, but 7 MA 140/2013 would necessarily be incapacitated to undertake such job. With both lower limbs disabled to the extent of 40%, it cannot be conceived that a person would undertake the job of driver. Even if the argument of learned counsel for the insurer is to be accepted, the claimant cannot be forced to do the job of driver. Driving is a very hectic activity and the person should be mentally and physically fit to perform the said job. The disability of both the lower limbs, that too to the extent of 40%, would necessarily incapacitate the injured to perform the job of a professional driver. 14 In these circumstances, I do not find any illegality or infirmity in the view taken by the Commissioner that the claimant had suffered a permanent total disablement. It may be noted that the expression "total disablement" as defined in Section 2 (1)(l) of the Act means such disablement, whether of a temporary or permanent nature, as incapacitates an employee for all work which he was capable of performing at the time of accident resulting in such disablement. The proviso added to the definition further provides that the permanent total disablement shall be deemed to result from every injury specified in Part I of the Scheduled I or from any combination of injuries specified in Part II thereof where the aggregate percentage of loss of earning capacity, as specified in the said Part II against those injuries, amounts to 100% or more.
15 Admittedly, the injuries suffered by the claimant are not the scheduled injuries and, therefore, the proviso has no application. Going by the definition of „total disablement‟ and the finding of fact returned by the Tribunal on the basis of evidence on record, I have no manner of doubt that the case of the claimant is of total permanent disablement covered by Section 4(1)(b) of the Act.
Question No.2 8 MA 140/2013 16 It is true that the claimant in his statement made before the Commissioner has claimed that he was earning Rs.6000 per month as wages and Rs.1000 per trip additionally from his employment. The Tribunal, however, has, without there being any evidence, taken the income of the injured as Rs.8000 on the ground that the driver would normally receive monthly wages in the range of Rs.8000 to10000 per month. I am in agreement with the learned counsel for the insurer that the aforesaid findings with regard to monthly wages of the claimant are without any evidence and therefore perverse The statement of claimant is categoric that he was receiving a monthly wages of Rs.6000/- per month from his employer. He has though spoken about the wages he was receiving additionally per trip, but has not substantiated by deposing further that how many trips he was making in a month.
17 In the light of weak evidence on record with regard to the monthly wages of the claimant, the Tribunal should have, at the most, accepted the statement of the claimant and taken his wages to be Rs.6000 per month. To this extent, the award requires modification.
Question No.3.
With a view to appreciate this question of law, it is necessary to advert to Section 4-A of the Act, the relevant portion whereof is reproduced hereunder:
"4-A. Compensation to be paid when due and penalty for default.-
(1) Compensation under section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.9 MA 140/2013
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-
(a) Direct that the employer shall, in addition to the amount of the arrears, pay simple interest at the rate of twelve percent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the official Gazette, on the amount due ; and
(b) If, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount of by way of penalty".
18 From a plain reading of clause (a) of sub section 3 of Section 4 A, it is manifestly clear that if an employer commits a default in paying the compensation due under this act within one month from the date it fell due, the Commissioner shall direct that employer shall, in addition to the amount of arrears, pay simple interest thereon at the rate of 12% per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the official Gazette. It is, thus, evident that the Commissioner has been put under mandatory duty to compensate the employee by payment of interest which should not be less than 12% per annum. The rate of interest, however, could be higher than 12%, but the same should not exceed the maximum of the lending rates of any scheduled bank. This is what the expression "such higher rate" unequivocally conveys. 19 A careful reading of clause (a) of sub section 3 of Section 4-A of the Act leaves no manner of doubt that grant of interest at the rate of 12% per annum is the minimum that must be granted by the Commissioner. The Commissioner, however, may grant interest at a rate higher than 12%, but the same must not be exceeding the maximum of the lending rates of any 10 MA 140/2013 scheduled bank as may be specified by the Central Government by a notification in the official Gazette.
20 It is also trite and as is held by this Court in Ghulam Mohd vs Divisional Manager, SFC Doda, (MA 576/2010), decided on 12.03.2020, the amount of compensation falls due after one month from the date of accident and in case the employer fails in paying the compensation within 30 days from the date it falls due, he will have to pay the same along with interest. This answers question No.3 as well.
21 For the foregoing reasons, except for the modification of the amount, to be calculated in terms of Section 4 (1)(b) of the Act by taking the monthly wages of the claimant as Rs.6000, the rest of the award is found to be perfectly legal and calling for no interference. 22 This appeal is, accordingly, allowed to the aforesaid extent and the claimant is held entitled to a sum of Rs. 6,77,760/-(4000x169.44) along with interest at the rate of 12% per annum, to be calculated w.e.f one month from the date of accident.
Registry shall release the amount in favour of the claimant in terms of the modified award after proper identification and excess amount be refunded back to the insurer.
(Sanjeev Kumar) Judge Jammu
07..08.2020 Sanjeev Whether the order is speaking? Yes Whether the order is reportable? Yes SANJEEV KUMAR UPPAL 2020.08.10 13:13 I attest to the accuracy and integrity of this document