Karnataka High Court
Thanveer vs Syed Moula Sab S/O Madar Sab on 17 February, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 227 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 227 OF 2017 (WC)
BETWEEN:
THANVEER
S/O MOULA SAB
AGED ABOUT 23 YEARS,
RESIDING AT HULIYAR TOWN,
CHIKKANAYAKANAHALLI
TALUK 572 114.
...APPELLANT
(BY SRI. SHANTHARAJ K., ADVOCATE)
AND:
Digitally signed
by JAI JYOTHI J 1. SYED MOULA SAB
Location: HIGH S/O MADAR SAB
COURT OF AGED ABOUT 43 YEARS,
KARNATAKA R/AT MARUTHI NAGAR, HULIYAR TOWN,
CHIKKANAYAKANAHALLI, TALUK 572114.
2. THE ORIENTAL INSURANCE CO. LTD.,
REP BY ITS MANAGER
BRANCH OFFICE,
JAYADEVA HOSTEL BUILDING,
B.H.ROAD, TIPTUR TOWN 572201.
...RESPONDENTS
(BY SRI. K N SRINIVASA, ADVOCATE FOR R2; R1-SERVED
UNREPRESENTED)
THIS MFA FILED U/S 30(1) OF WORKMEN
COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD
DATED:22.09.2016 PASSED IN ECA NO.5/2014 ON THE FILE
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MFA No. 227 of 2017
OF THE II SENIOR CIVIL JUDGE, & XIX MACT,
CHIKKANAYANAHALLI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the appellant/claimant challenging the judgment and award dated 22.09.2016 in ECA.No.5/2014 passed by the Itinerate Court of the Senior Civil Judge & XIX MACT, Chikkanayakanahalli, questioning the liability as well as for seeking enhancement of compensation.
2. Brief facts of the case are that, on 28.03.2008, the claimant was engaged by respondent No.1 to unload onion load from Tiptur to Shettikere shandy belonging to one Shivanandaswamy. The claimant was proceeding in the said vehicle as a driver and when he reached near Shettikere at about 10.00 am., at that time, the claimant drove the same in a high speed and lost his control over -3- MFA No. 227 of 2017 the said vehicle and capsized towards the right side of the road and caused the accident. Due to which, the claimant sustained fractures and grievous injuries.
3. Heard the arguments from both sides and perused the records.
4. In the present case, the undisputed facts are that the appellant/claimant had sustained employment injuries during the course of employment under respondent No.1 as the claimant was working as a driver and accordingly, filed the claim petition. The learned Commissioner/Tribunal by holding the permanent disability at 17% and considering the salary of the claimant at Rs.6,000/- pm., determined the compensation and accordingly awarded the same. But the Tribunal has exonerated the Insurance Company to pay the compensation on the ground that the claimant-employee was not having driving licence to drive LMV (transport), but was holding driving licence to drive LMV (non- -4- MFA No. 227 of 2017 transport). But the vehicle in question i.e., 407 Tempo bearing No.KA-12-4313, is the LMV (transport). Therefore, on this ground, there is violation of insurance policy. Therefore, the Tribunal exonerated the Insurance Company and fastened on the owner to pay the compensation.
5. The issue involved in the present case is no more res integra. In view of the judgment of the Hon'ble Supreme Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED1, a person who is holding driving licence to drive LMV (non-transport) is also competent to drive LMV (transport). Therefore, on this ground, the Insurance Company cannot be exonerated as it is not a fundamental breach, but the Tribunal has committed error by holding that the claimant was not holding driving licence to drive LMV (transport). Therefore, as the matter is squarely covered by the decision of the Hon'ble Supreme Court as stated supra, hence, the 1 AIR 2017 SC 3668 -5- MFA No. 227 of 2017 Insurance Company is liable to pay compensation in view of contract of insurance entered into between the employer and Insurance Company.
6. The quantum of compensation arrived at by the learned Commissioner/Tribunal is found to be correct. Based on the disability stated by the doctor and on other parameters, the quantum of compensation is also not challenged. Hence, the quantum of compensation awarded by the Tribunal is confirmed.
7. The Tribunal has granted interest at the rate of 12% pa., from the date of petition till realization is not correct. As per Section 4A (3) (a) of the Employees' Compensation Act, the rate of interest at 12% pa., can be granted from the date of accident till the date of realization, in view of the judgment of Hon'ble Supreme Court in the case of Pratap Narain Singh Deo Vs. -6- MFA No. 227 of 2017 Srinimvas Sabata and Another2 and Saberabibi Yakubbhai Shaikh and others v. National Insurance Co. Ltd. and others3.
8. Therefore, for the reasons above stated, the judgment and award dated 22.09.2016 in ECA.No.5/2014 passed by the learned Commissioner/Tribunal is modified fastening liability on the Insurance Company to pay compensation determined by the Tribunal to the appellant/claimant. Accordingly, I proceed to pass the following ORDER i. The appeal is allowed-in part.
ii. The impugned judgment and award dated 22.09.2016 in ECA.No.5/2014 passed by the Itinerate Court of the Senior Civil Judge & XIX MACT, Chikkanayakanahalli, is modified fastening the liability on the Insurance 2 AIR 1976 SC 222(1) 3 (2014) 2 SCC 298 -7- MFA No. 227 of 2017 Company to pay compensation determined by the Tribunal to the appellant/claimant along with interest at the rate of 12% pa., from the date of accident till the date of realization as per Ex.R.4-insurance policy.
iii. No order as to costs.
iv. The appellant/claimant is not entitled for interest for the delay period of 18 days in filing the appeal.
v. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.
vi. Draw award accordingly.
Sd/-
JUDGE
PB
List No.: 1 Sl No.: 33