Karnataka High Court
Shri.Bharma Allap Madar vs Shri.Malhari R.Kurade on 6 April, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 6TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA No.22490/2009 (MV)
BETWEEN
SHRI.BHARMA ALLAP MADAR
AGED ABOUT 37 YEARS,
OCC: DRIVER (NOW NILL)
R/O PRABHU NAGAR, BELGAUM
... APPELLANT
(BY SRI.SANJAY S.KATAGERI, ADVOCATE)
AND
1. SHRI.MALHARI R.KURADE
AGE 50 YEARS, OCC: BUSINESS
R/O 2162/B, PANGUL GALLI, BELGAUM
(OWNER OF THE VEHICLE BEARING
NO.KA-22/C-8072)
2. THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE COMPANY LTD.
CLUB ROAD, BELGAUM
... RESPONDENTS
(BY SRI.M.K.SOUDAGAR, ADVOCATE FOR R2; R1-SD)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988 AGAINST THE
JUDGMENT AND AWARD DATED 27/02/2009 PASSED IN
M.V.C.NO.3282/2007 ON THE FILE OF THE LEARNED II ADDITIONAL
CIVIL JUDGE (SD) AND ADDITIONAL MACT BELGAUM, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
DATE OF RESERVING THE JUDGMENT : 24.03.2017
DATE OF PRONOUNCING THE JUDGMENT : 06.04.2017
JUDGMENT
This appeal has been preferred by the claimant against the impugned judgment and award passed by the IInd Addl. Civil Judge (Sr.Dn.) and Addl. MACT, Belgaum in MVC No.3282/2007, dated 27th February 2009 by awarding compensation in a sum of Rs.3,15,000/- with interest at the rate of 6% p.a., from the date of petition till realisation of entire amount, as this judgment has been challenged by the petitioner among other grounds urged therein.
2. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2 - Insurance company and perused the records.
3. The rank of the parties shall be maintained as it is before the Tribunal for convenience.
4. The petitioner was working as driver in Lorry bearing No.KA-22/C-8072 belonging to the respondent :3: No.1. On 11.06.2007, the said lorry was loaded with sand and it was going from Gokak towards Belgaum. Another lorry belonging to the respondent No.1 bearing No.KA-22/A-5489 driven by one Mansur Dastagirsab, which was also loaded with sand going from Gokak towards Belgaum. Both the aforesaid lorries reached near Sutagatti Ghat. In the said ghat the lorry driven by the petitioner was not climbing since it was steep ghat. At that time, Mansur Dastagirsab told the petitioner that he would drive the said lorry and the petitioner shall keep stones behind the rear wheel frequently so as to avoid vehicle coming to the rear side. Accordingly, the Mansur was started driving the lorry and the petitioner was helping by putting stones behind the wheel, as soon as the lorry moves little ahead so as to reach the top of the ghat, meanwhile the Mansur lost control over the lorry and abruptly applied neutral gear without applying the break because of which the said lorry suddenly came back and ran over the right hand of the petitioner who was helping to move the said lorry ahead by :4: keeping stones below the rear wheel. In view of the said impact, the petitioner sustained crush injuries on his right hand. It is further stated that subsequently, the injured petitioner was shifted to the KLE Hospital, Belgaum for treatment. He was admitted as an inpatient from 11.06.2007 to 23.06.2007. He underwent major operation. His little finger of the right hand is amputated. As such he has spent Rs.1,00,000/- towards treatment. Further, it is stated that the injured petitioner was aged about 25 years at the time of accident. He was earning Rs.7,000/- per month as salary and also maintaining his family. His family consists of wife, daughter, old aged parents and disabled son. Due to injury suffered in the accident, the injured petitioner is unable to work and lost his earning capacity. Criminal case was registered against the driver of lorry bearing No.KA-22/C-8072 i.e., Mansur Dastagirsab, who was driving the lorry at the time of accident. Hence, he sought for compensation by filing the claim petition before the Tribunal.
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5. After service of notice, the respondent Nos.1 and 2 have appeared and filed their written statement. Whereas, it is the contention of the respondent No.1 in the written statement that the petitioner was working as a driver in his lorry and he was paying Rs.4,000/- per month as salary and Rs.50/- per day as bhatta. The accident was caused due to the negligence of the petitioner. It is further contended in the written statement that he has failed to take proper care while keeping stones below the wheels. Therefore, the petitioner is not entitled to claim any compensation, the petitioner has left the job after the incident, but falsely set up the following claim petition before the Tribunal that he has lost his entire earning capacity by pleading in his claim petition. Thus, he sought for dismissal of the claim petition, which has been filed by the injured - claimant. The respondent No.2 who has also filed the written statement by stating that the accident in question caused due to the negligence on the part of the injured petitioner and he is alone :6: responsible for causing the accident and also sustaining the injuries on his right hand and also amputation of the little finger of that aforesaid hand. It is further contended that the liability of the respondent No.2 is restricted in terms and conditions of the policy of Insurance of the aforesaid lorry and holding of valid and effective driving licence by the driver of the aforesaid lorry. However, the driver was not at all employed by the first respondent and he was not authorised to drive the aforesaid lorry without permission of the first respondent. Therefore, looking into the averments in the claim petition, it reveals that the petitioner himself put into risk position and also acted negligently by placing stones below the rear wheel of the lorry. Therefore, the injured being the claim petitioner is not entitled for any compensation. Thus, sought for dismissal of the claim petition.
6. Based on the pleadings of the parties, the Tribunal framed the following issues:
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1. Whether accident in question occurred due to rash and negligent driving of truck bearing No.KA-22/C-8072 by its driver and due to accident petitioner has sustained injuries?
2. Whether petitioner is entitled for compensation? If so what amount and from whom?
3. What order or award?
7. Petitioner in order prove his case examined himself as PW1 and also examined the Doctor as PW2 and got marked 16 documents as Exs.P1 to P16 and closed his evidence. The respondent Nos.1 and 2 have not led any oral evidence. The respondent No.2 has got marked the copy of policy with consent as Ex.R1. Subsequently, the Tribunal answered the issue Nos.1 and 2 in affirmative by awarding compensation of Rs.3,15,000/- from respondent Nos.1 and 2 jointly and severally. Against which, the impugned judgment has been challenged in this appeal.
8. It is contended by the learned counsel for the appellant during the course of arguments that the Tribunal :8: passed the impugned judgment and award by committing an error on the basis of the facts and evidence of the case on record that the Tribunal ought to have considered the permanent physical disability of the appellant being injured to the extent of 100% to the whole body as against 30%. Though, PW2-Doctor, who subjected to examine the injured and also given treatment as he assessed the disability to the extent of 60% to the right upper limb, despite of it, the Tribunal has allowed the petition in part and awarded compensation, which has been questioned by preferring this appeal on various grounds. Therefore, in this appeal it is required to be re-appriciated the evidence on record as where the injured being the claimant who has sustained the amputation of the right little finger on the aforesaid hand and partial amputation of the head of right 5th metacarpal bone and he is unable to hold any object firmly and he is also unable to drive the vehicle as he was driver by avocation prior to the accident in heavy vehicles and sustaining injuries. The impact on the right hand, as a :9: result of that amputation of the little finger of the aforesaid hand, for which he is unable to do any normal activities. Due to the appellant sustaining the crush injuries he is unable to do his avocation as driver as he was doing prior to the incident and the Doctor-PW2 has assessed the disability to the extent of 60%, but the Tribunal was wrongly held that the appellant can do other work like security guard, by opening the Nandini Parlor or other jobs to eke out his livelihood. It is further pointed out that the Tribunal has failed to take note regarding the application for surrendering his Driving Licence to the concerned RTO as per Ex.P8. Hence awarding the compensation under the head loss of future earning capacity is on the lower side. Therefore, it is required to consider the grounds as urged in this appeal for awarding the compensation under the head loss of future earning capacity of the driver, who has sustained crush injuries on his right hand due to the accident on the aforesaid date. It is further pointed out that the medical bills, which has produced by the injured to the : 10 : extent of Rs.29,000/- as he was inpatient for a period of 15 days. Subsequently, for a period of four months. Therefore, the Tribunal has awarded a sum of Rs.50,000/- under the head medical expenses, attendant charges, conveyance charges and nutritious food, which is also on the lower side. Therefore, it is required to be enhanced. It is further contended that the insofar as the loss of amenities and future unhappiness the Tribunal has awarded a sum of Rs.50,000/-, which is also on the lower side, though the injured who has sustained the injuries i.e., crush injuries on his right hand little finger of the aforesaid hand, which was amputated that effected his earning capacity to carry on his day to day activities. Therefore, the compensation awarded by the Tribunal is required to be enhanced by keeping in view of the evidence adduced by the claimant petitioner seeking for enhancement of compensation as he sought for. It is further pointed out that the compensation of Rs.30,000/- awarded towards pain and agony, though the appellant was inpatient for a period of 15 days and his right : 11 : hand little finger was amputated, for which he is unable to drive heavy goods vehicle as he was earlier being driver by avocation and also having earning capacity, but the compensation awarded by the Tribunal is on the lower side. Therefore, it requires to be re-appreciated the evidence on record and seeking enhancement of compensation. The appellant being the injured and considering the same by enhancement of compensation and which was granted by the Tribunal without looking into the evidence which adduced by the claimant petitioner and also produced the documents for establishing the case. In support of his contention, the learned counsel for the appellant has produced the judgment in the case of Ramchandra Vs. Regional Manager, United India Insurance Company Limited reported in 2014I(1) KAR L.J. 374 (SC), in this reliance it is relevant to state that in Paragraph Nos.1, 2, 26 and 27, it is held as under:
"1. The judgment and order dated 17.4.2007 passed by the High Court of Karnataka at Bangalore in M.F.A. No. 6711/2004 (MV) is the subject matter : 12 : of challenge in this appeal whereby the learned single Judge of the High Court was pleased to allow the appeal preferred by the respondentNo.1- United India Insurance Company Ltd. through its Regional Manager holding therein that the liability of the respondent No.1-United India Insurance Company Ltd. (shortly referred to as 'the Insurance Company') to pay compensation is restricted to one under the Workmen's Compensation Act,1923 and the amount to which the respondent No.1 herein will be liable to pay is Rs.32091/- (Rupees Thirty Two Thousand and Ninety One Only) and the balance amount will have to be borne by the insured - owner of the vehicle who had been impleaded by the appellant/claimant as respondent No.2 herein but was allowed to be deleted by this Court from the array of parties at the risk of the appellant/claimant herein. The High Court vide its impugned order was thus pleased to hold that the liability of the insurance company/respondent No.1 is restricted to the one under the Workmen's Compensation Act, 1923 only and hence was not liable to pay any compensation under the Motor Vehicles Act, 1988.
2. The substantial question of law in this appeal therefore is confined to determination of the question as to whether the learned single Judge of the High Court could have passed the impugned order holding therein that when the : 13 : labourer/employee is injured during the course of employment due to negligence of the driver of the vehicle which caused the accident, then whether the compensation could be limited to the amount admissible under the Workmen's Compensation Act or compensation would also be payable under the Motor Vehicles Act? The appellant/claimant has raised this question relying specially on the ratio of the judgment of this Court in Suresh Chandra vs. State of U.P. & Anr. reported in 1996 ACJ 1 wherein this Hon'ble Court has held that when the labourer sustains injuries during the course of his employment due to negligence of the driver which met with an accident and the claim is made under the Motor Vehicles Act, the compensation could not be limited to the amount admissible under the Workmen's Compensation Act.
26. In the instant matter, we have noted that the High Court although had granted liberty to the insurance company to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent insurance company shall pay the amount to the appellant/claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has not denied the amount to the claimant/appellant. But in absence of a categorical direction to the respondent/insurance company to pay the entire amount to the appellant as : 14 : determined by the Motor Accident Claims Tribunal, the appellant is bound to confront impediments in realizing the amount. Hence, the direction of the High Court is clarified to the extent by recording that the respondent/insurance company shall pay the balance amount also beyond Rs.32,091/- along with interest to the Claimant expeditiously but not later than a period of six weeks from the date of receipt of this order.
27. We are, thus, pleased to hold that the judgment and order of the High Court which impliedly held that the employee/claimant is entitled to compensation only under the Work mens' Compensation Act and not under the Motor Vehicle's Act stands set aside and the liberty granted to the Respondent/Insurance Company to realise the amount from the owner without a corresponding direction to the Respondent/Insurance company to pay the amount to the Claimant/Appellant making the appellant liable to realise it from the owner of the vehicle stands modified as indicated herein before. The appeal accordingly is allowed but we refrain from making any order as to costs In the case of Shankrappa Kubbanna Kattimani Vs. Karnataka State Road Transport Coporation and others : 15 : reported in 2007 ACJ 2279, at paragraph Nos.2 and 3 it is held as under:
"2. By the impugned order, High Court reduced the total amount of compensation in the sum of Rs.2,04,800 awarded by the Claims Tribunal to Rs.1,07,000, The reason assigned by High Court for reducing the quantum of compensation is stated in para 9 of the impugned order thus:
In any event, even notionally taking income of a coolie at Rs.30 per day and by applying multiplier of 15 it come to Rs.1,50,000. 50 percent disability come to Rs.75,000. I am, therefore, inclined to grant Rs.75,000 in place of Rs.1,72,800 and adding Rs.32,000 under other conventional heads, the total compensation to which the claimant is entitled to would be Rs.1,07,000.
3. After hearing learned counsel for the parties, we find that the High Court committed gross error in ignoring the fact that the claimant was a coolie doing manual labour for earning his livelihood. As a result of the accident his one arm was amputated which was almost total disability for earning. In such a situation, to reduce the quantum of compensation treating disability at 50 percent was uncalled for. The Tribunal has in fact assessed the disability at 80 percent.": 16 :
In ILR 1995 KAR 1916 in the case of Hanumantha Gowda vs. Devaraju, at para-8 it is held as under:
"8. I am of the view, the finding entered by the Tribunal in this behalf is a question of fact and there is no substantial question of law arising out of the finding. It cannot be said that the appreciation of the evidence is perverse warranting interference. That apart, the Doctor's evidence clearly shows that the claimants have sustained physical disability resulting in their suffering total disablement. The total disablement should be assessed vis-a-vis the work the worker was carrying. If the worker, is disabled to perform all the work he was engaged to perform it amounts to total disablement. It is to be noted that the compensation is claimed under the Workmen's Compensation Act, 1923 by the worker as defined under the Act. That worker, due to the injury sustained by him, loses the capacity to do that work, which capacity earned him the status of a worker under the employer. If so, the disablement that he suffers should be understood vis-a-vis the work he carried on or for which he was employed. If by the accident, he becomes totally disabled to : 17 : carry on that work, as far as he is concerned, it is a total disablement. A driver employed is employed to drive. He is not to work as a sweeper or a manual labourer. If due to the accident, a driver becomes incapable of performing his duties as a driver there is total disablement as far as he is concerned. He will cease to be a driver under his employer and consequently a worker under that employer. The fact that the he can do some other work elsewhere is no ground to state that he is not totally disabled. His disablement should be assessed with reference to the work he was employed to perform at the time of accident. His capacity to do some other type of work did not earn him the status of worker under the particular employer. If by the accident, the worker loses his employment under his employer, thereby ceases to be a worker as defined under the Act under that particular employer which employment brought him under the purview of the Act and the relationship of employer-worker is brought to an end, then that amounts to the "total disablement' contemplated under the Act. To repeat his capacity to do some other work either under the same employer or : 18 : another employer or independently is of no consequence. It has to be remembered that a skilled worker, if by an accident is disabled to do the particular skilled work, may not be in a position to be employed as an unskilled worker in the same industry for a variety of reasons. He may be over aged or there may be opposition from other unskilled worker since the new employer may mar their employment prospects. Hence with the employee being disabled to carry the work for which he was originally employed, it will be a virtual exit from the establishment. It may be contradiction in terms if we are still to hold that there is no "total disablement" for the employee."
In MFA No.4134/2008 C/w.MFA No.3633/2008 in the case of the Oriental Insurance Co. Ltd., Vs.Shri Nitin and another, disposed of on 19th February 2013, at paragraph Nos.10, 11, 13 and 15 it is held as under:
"10. It is contended on behalf of the Insurance company that the claimant was working as a cleaner in the lorry. No doubt, the claim petition under the provisions of Motor Vehicles Act or under the provisions of the WC Act was maintainable in : 19 : view of the Section 167 of the Motor Vehicles Act. The claimants opted to file the claim petition u/s 166 of the Motor Vehicles Act, 1988, (M.V. Act, for short). However, the liability of the Insurance Company is restricted to the quantum of compensation that could be awarded under the provisions of the WC Act, and any compensation that is awarded beyond the said limit has to be borne by the owner of the vehicle. In support of this contention, he has drawn my attention to Sec.147 of the M. V. Act and has also relied upon two decisions of the Supreme Court, in the case of Ramashray Singh vs. New India Assurance Co. Ltd and others, reported in 2003 ACJ 1550 and in the case of National Insurance Co. Ltd. vs. Prembai Patel and Others, reported in (2005) 6 SCC
172. He, therefore, submitted that the liability of Insurance Company in the instant case is to the extent of liability that arises under the provisions of the Workmen's Compensation Act, (W.C. Act).
11. Per contra, learned Counsel for the claimant has relied upon the decision of the this Court in the case of New India Assurance Co. Ltd. Vs. R. Thippeswamy and others, reported in 2007(1) KCCR 736, to contend that when the cleaner is standing beside the vehicle, then he would have to be considered as a 'third party' and the compensation would have to be determined under : 20 : the provisions of the of the Motor Vehicles Act and that the provisions of the WC Act would not be applicable. Distinguishing the two decisions of the Apex Court relied upon by the Insurance Company, he has stated that in those cases the cleaner was not involved in the accident and therefore, the said decisions are not applicable having regard to the provisions of Sec.147 of the M.V. Act.
13. Having heard the learned Counsel on both sides, the following points would arise for my consideration:
1) Whether the liability of the Insurance Company must be restricted to the quantum of compensation computed under the provisions of the WC Act, 1923, in the instant case?
2) Whether the claimant is entitled to additional compensation?
15. Under clauses (a), (b), (c) to proviso (i) of sub-section (1) of Sec.147 it is stated that, in respect of an employee who is engaged in driving the vehicle or if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle or if it is a goods carriage being carried in the vehicle, then in that case, the liability of the Insurance Company under the provisions of the W.C. Act is absolute. In other words, it is a statutory : 21 : liability and any policy which is issued by the insurer must be held responsible in respect of the said liability. It is significant to note that only three categories of workmen are mentioned in the said proviso, viz., driver, conductor and if any person is carried in the vehicle.
The ratio of this reliance are squarely applicable to the facts of the case on hand as well as the grounds urged in this appeal seeking enhancement of compensation claimed under the Workmen's Compensation Act, 1923. In MFA No.24818/2010, in the case of Deepak Hanamat Jangale vs. Parasharam Ramu Patil and another, disposed of on 14th October 2014, at para 6 it is held as under:
"6. So also, the claimants shall be entitled to `1,00,000/- under the head 'loss of future amenities'. The claimant cannot enjoy life as others of his age since he has lost one hand.
Hence, the amount that could be awarded
under the head 'loss of amenities' is
`1,00,000/-."
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At paragraph 4 and 5 in the case K.Janardhan vs. United India Insurance Co. Ltd., and another reported in 2008 ACJ 2039, it is held as under
"4. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence.
5. We therefore allow this appeal, set aside the judgment of the High Court and restore that of the Commissioner but with no order as to costs."
In paragraph No.17, 19 and 20 in the case of Ramchandra vs. Regional Manager, United India Insurance Co. Ltd., reported in 2013 ACJ 2205, it is held as under:
"17. A perusal of the aforesaid judgment and order of this Court thus indicate that this Court has clearly held that the liability to pay compensation in respect of death or bodily injury to an employee should not be restricted to that under the Workmen's Compensation Act but should be more or unlimited.: 23 :
However, the determination would depend whether a policy has been taken by the vehicle owner by making payment of extra premium and whether the policy also contains a clause to that effect.
19. In the light of the aforesaid legal position, it is clear that the High Court was not correct in holding that the claimant/appellant was not entitled to any compensation over and above the liability under the Workmen's Compensation Act and hence the direction issued by the High Court that the appellant/insurance company, respondent herein, will be liable to pay only Rs. 32091/- and the balance will have to be shouldered by the insured/owner of the vehicle is fit to be struck down as invalid as the High Court had failed to examine the nature and clauses of the policy which was not produced even before the Tribunal.
20. The claimant/appellant is surely entitled to the amount of compensation over and above the Workmen's Compensation Act in view of the ratio of the decisions referred to hereinbefore. The rider no doubt is that the statutory liability cannot be more than what is required under the statute under Section 95 of the Motor Vehicles Act which cannot bind the parties or prohibit them from contracting or creating unlimited or higher liability to cover wider risk and the insured is bound by the terms of the : 24 : contract specified in the policy in regard to unlimited or higher liability as the case may be. Thus, it is although correct that limited statutory liability cannot be extended to make it unlimited or higher, it is also manifestly clear that insofar as the entitlement of the claimant/deceased cleaner of the vehicle is concerned, the same cannot be restricted to the compensation under the Workmen's Compensation Act and is entitled to compensation even under the Motor Vehicles Act which will depend upon the terms and conditions of the policy of insurance.
At paragraph 16 in the case of New India Assurance Co. Ltd., vs. R.Thippeswamy and others reported in 2007 ACJ 17961, it is held as under:
"16. From the aforesaid judgments it is clear, if the injured is an employee and in the course of his employment if he is injured, whether he is inside the bus or outside the bus, under the provisions of the Workmen's Compensation Act he is entitled to compensation. Thus, to be entitled to compensation what has to be established is that the injured was an employee of the insured, he was injured in the course of employment and then he is entitled to compensation. But that is not the position in respect of cases arising out of Motor Vehicles Act of 1988. For being entitled to compensation under the Act, : 25 : the claim for compensation should arise in respect of accidents involving the death of or bodily injury to persons arising out of the user of the motor vehicles. The relationship of master and servant is not necessary. If such a relationship exists it enures to the benefit of an employee to a limited extent as provided under proviso (ii) to Sub-section (1) of Section 147 i.e., if the insured had taken a policy covering only third party risk, even then the driver of the vehicle which is insured and if it is a public service vehicle the employee engaged as a conductor of the vehicle or employee employed in examining the tickets on the vehicle and if it is a goods carriage employee being carried in the vehicle are also entitled to compensation to the extent it is provided under the provisions of Workmen's Compensation Act even though the insured had not paid any additional premium. However, the said benefit is not available to other categories of employees of the insured. But if other categories of employees at the time of accident though in the course of employment are outside the vehicle, then they would become 'third party' under the Act, notwithstanding the fact that such a person is also an employee of the insured. Such an employee has the option of either claiming compensation under the provisions of Motor Vehicles Act as a third party or as an employee of the insured under the provisions of Workmen's : 26 : Compensation Act. If the claim is under the provisions of Workmen's Compensation Act, the liability of the insurance company will be only to that extent as provided under the Workmen's Compensation Act. If the claim is under the provisions of Motor Vehicles Act, as a third party, then the liability would be unlimited as provided under Section 147(2) of the Act. It is to be remembered that both the Workmen's Compensation Act and the Motor Vehicles Act are beneficial legislation which are enacted to protect the interest of victims to the accident either in the course of employment or on account of use of motor vehicle. Any interpretation to be placed on these provisions should be in consonance with the object with which these enactments are enacted. Any other view would defeat the very purpose of the Act. If the victim of an accident is entitled to compensation under both the aforesaid enactments, then that Page 0447 enactment which is more beneficial to him is to be adopted. In those circumstances, I am of the view that there is no substance in the contention of the appellant that the tribunal had wrongly foisted the liability on them. In that view of the matter, I do not find any merit in this appeal."
On the contrary the learned counsel for the respondent Insurance Company has vehemently contended : 27 : that by reiterating the written statement, which is filed by the respondent Nos.1 and 2 respectively by resisting the claim petition filed by the claimant being injured and also by working as driver prior to the incident and also at the time of accident. It is already been stated in detail relating to the facts of this appeal that the first respondent, who has filed the written statement in detail that the injured petitioner was working as driver with respondent No.1 and he was also paying Rs.4,000/- per months as salary and bhatta of Rs.50/- per days. The said accident was caused due to the negligence on the part of the injured claimant only as he failed to take proper care by placing the stones below the rear wheel of the aforesaid lorry, which was driven by him at Sutagatta Ghat area, the lorry which was driven by him loaded with sand. Therefore, the injured petitioner is not entitled to claim any compensation. The amount awarded by the Tribunal to the claimant is exorbitant as the accident which was occurred due to his negligence on the part of the injured petitioner only. This : 28 : contention was also taken by the learned counsel for the respondent Insurance Company that the accident in question which caused due to the negligence on the part of the petitioner in the aforesaid lorry, which is loaded with sand, as this claimant petitioner is only responsible for causing of the accident for which amputation of his right hand little finger by sustaining crush injuries. Therefore, the victim being the claim petitioner, who is entitled for compensation from the respondent Insurance Company. It is further contended that the liability of the respondent No.2 is restricted in terms of the policy of the Insurance Company issued and holding of the valid and effective Driving Licence by the driver of the lorry and he is not at all the employee of the first respondent and he was not authorised to drive the aforesaid lorry without the permission of the first respondent. It is further contended the victim being the claim petitioner himself put into risk position and also acted negligently by placing stones below the rear wheel of the lorry and his right hand sustained : 29 : crush injuries and also got amputation to his little finger of his right hand. Therefore, the claim petitioner alleged to have sustained crush injuries on his right hand finger. Therefore, he is not deserving for any compensation, in which he has sought for. It is further contended that the reliance which were placed by the learned counsel for the appellant not at all applicable to the case on hand as well as the grounds urged by him for seeking enhancement of compensation. It is further contended by placing reliance on the judgment reported in 2008 KANT MAC 604 (KANT) in the case of New India Assurance co. Ltd., Vs. Rama and another, wherein the Workmen's Compensation Act, 1923, that permanent partial disablement, the workman, a truck driver suffered crush injury to right leg from knee to foot, amputation of limb below knee, loss of earning capacity is 50%, medical evidence shows that the workman is unable to work as driver, injury not resulted in permanent total disablement. Therefore, the ground which has urged by the learned counsel for the appellant does not arise to revisiting : 30 : the impugned judgment as the injured claimant has sustained 100% permanent disability. In the judgment reported in 2009 (3) T.A.C. 598 (SC) in the case of Oriental Insurance Co. Ltd., Vs. Mohd. Nasir and another, at paragraph Nos. 12 to 14 it is held as under:
"12. The statutes provide for determination of the extent of physical disability suffered by a qualified medical practitioner so as to enable him to assess the loss of earning capacity. Explanation 1 appended to clause (c) of sub-section (1) of Section 4 provides that where there are more injuries than one, the aggregate amount of compensation has to be taken but the same should not exceed the amount which would have been payable in case of permanent total disablement.
It is also beyond any doubt or dispute that while determining the amount of loss of earning capacity, the Tribunal or the High Court must record reasons for arriving at their conclusion.
The 1923 Act which would also be the claims applications arising out of use of motor vehicles in terms of the provisions of 1988 Act would for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview thereof. The Note appended to the Second : 31 : Schedule of the 1988 Act raises a legal fiction, stating that `injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's Compensation Act, 1923'. Permanent disability, therefore, for certain purposes have been co-related with functional disability.
13. As to what, therefore, in our opinion, would be relevant is to find out the nature of injuries and as to whether the same falls within the purview of Part I or Part II thereof. We have noticed hereinbefore that whereas Part I specifies the injuries which would deem to result in permanent total disablement, Part II specifies injuries which would be deemed to result in permanent partial disablement. The distinction between the `permanent total disablement' and `permanent partial disablement' is that whereas in the former it is 100% disablement, in the latter it is only the disablement to the extent specified in the Schedule.
14. Similar terms have been used in clauses
(a) and (b) of paragraph 5 of the Second Schedule of the Motor Vehicles Act. It, by reference, incorporates the provisions of the First Schedule of the 1923 Act.
Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling : 32 : under the 1923 Act but apply to the cases which fall under the 1988 Act as well."
and at para-25 in the case of Shivalinga Shivanagowda Patil and Others vs. Erappa Basappa Bhavihala and Others reported in ILR 2004 KAR 193, it is held as under
"25. In view of the discussions and for the reasons mentioned above, we answer the reference accordingly. We answer the points referred number- wise, which are as under:-
(i) The Commissioner under the Workmen's Compensation Act cannot assess the loss of earning capacity without the assistance of the assessment made by qualified medical practitioner regarding loss of assessment or in disregard of the assessment of a qualified medical practitioner. But, if the assessment made by the qualified medical practitioner is disputed by any one of the parties, the Commissioner is competent to sit in judgment over the assessment of the qualified medical practitioner and pronounce upon the same if material by way of assessment of another qualified medical practitioner is placed and he is accepting the said assessment having regard to the nature and extent of the disablement and the loss of earning capacity, he can disregard the earlier : 33 : assessment of the medical practitioner disputed by the parties.
(ii) In the event of neither the workman nor his employer producing any medical evidence to show the extent of loss of earning capacity resulting from the injury of the former, Section 11 of the Act empowers the Commissioner to get the injured workman examined at any time by a qualified medical practitioner and to assess the nature and extent of disablement as well as the loss of earning capacity on the basis of such assessment to be furnished by the qualified medical practitioner.
(iii) Determination of the loss of earning capacity has to be with reference to "all the work"
which the workman was capable of performing at the time of the accident resulting in such disablement and not with reference to the work which the workman was performing at the time of the accident. However, this is subject to the condition that in case the workman establishes by acceptable evidence that after the injury not only he is not able to do the work which he was performing before the accident but he is not able to do any other work, the loss of earning capacity could be assessed on the basis of such evidence.
: 34 :
(iv) In the case of an injury specified in Part II of Schedule I which falls under Section 4(1)(c)(i) read with Part II Schedule I, the Commissioner has the power to determine the amount of compensation awardable under Section 4(1)(b) of the Act provided the injured by adducing independent and acceptable evidence establishes the case that the injury which he has sustained results in a permanent total disablement and not merely permanent partial disablement.
Accordingly, the questions are answered." The reasons assigned in this appeal are squarely applicable to the contention that has taken by the respondent Insurance Company and the same shall be considered and set aside the impugned judgment and award passed by the Tribunal and dismissal of the appeal, as there is no justifiable grounds urged in this appeal to call for interference of the impugned judgement seeking enhancement of compensation.
9. Having regard to these contentions taken by the learned counsel for the appellant as well as the respondents are concerned, it is relevant to state that PW1 being injured : 35 : and also being the claimant/petitioner, which has given the evidence that he had sustained the crush injuries on his right hand and also amputation of his little finger on the aforesaid hand as it indicates in the wound certificate. The wound certificate is produced and marked as Ex.P5, which is issued by the KLE Hospital. According to which the injured has sustained the following injuries:
1. Complete avulsion of skin of palm from just distal to base of thumb, proximal 5 cms to wrist crease to proximal inter phalangeal crease and entire dorsum of head.
2. Complete amputation of right little finger from base, tendons exposed (palm) dorsal aspect of hand.
3. X-ray right hand shows fracture of base of proximal phalanx. There is seen disarticulation of 5th digit middle and distal phalanx of 5th digit.
10. In support of these injuries, which he has sustained and also be taken treatment in that hospital. He produced the discharge summary issued by the KLE : 36 : Hospital, which is marked as Ex.P9, which reveals that the crush injury to the right hand, avulsion injury right hand with amputation of little finger. He produced the discharge certificate given by PW2 at Ex.P12, wherein he has also mentioned about the injuries suffered by the petitioner. He also produced X-ray at Ex.P15 and diagnostic report at Ex.P14, which shows that the right little finger is amputated and partial amputation of head of right 5th metacarpal bone. He is suffering from loss of irregularity of soft tissues of the distal right forearm and hand, are seen. He has produced some of the bills, i.e., about 42 in numbers at Ex.P7. Ex.P13 is the receipt given for obtaining X.ray. The total amount of bills is about Rs.29,000/-. It is further contended that the petitioner was earning Rs.7,000/- as salary, the respondent No.1 who was the owner of the aforesaid lorry has stated that he used to pay Rs.4,000/- per month as salary to the petitioner and Rs.50/- as bhatta per day. According to the first respondent, he was paying Rs.5,500/- to the petitioner being the driver, the said amount appears : 37 : to be on the guess work. Insofar as the income of the petitioner it has to be determined by the Tribunal. Admittedly, the injured being a driver of the aforesaid lorry, who was holding driving licence to drive the heavy vehicle. Therefore, he might be earning Rs.125/- to Rs.150/- per day. On the basis of the guess work, the Tribunal has taken the income of the petitioner/injured at Rs.4,500/- looking into the injuries it might not be possible for the petitioner to work at least for a period of six months and during the those period he lost his earnings, which is to be compensated.
11. Whereas the learned counsel for the appellant has taken me through the records it consisting the evidence of PW1 and documents, which produced by him to establish his case against the respondent for seeking compensation, in which he has sustained crush injuries on his right hand and also amputation on the little finger of the right hand and that and he has totally disabled to do all types of work, his earning capacity due to crush injuries as well as the : 38 : amputation of the little finger on his right hand. The Doctor who examined the petitioner and also assessed the disability as well as the restriction of movement of the victim by doing his work as driver. The Doctor, who assessed the disability at 60% to the upper limb as injured being driver by driving of a heavy vehicle, such as lorry. But subsequent to crushing of injuries on the right hand and amputation of little finger on the aforesaid hand that he did not do it. He has used to right hand for the purpose of riding of the heavy lorry. But the Tribunal has considering all these facts as well as the evidence in respect of Ex.P12 and also the evidence of PW2, the Doctor, who subjected to examine him and issued disability certificate, but the Tribunal held that the disability at 30% to the whole body as his earning capacity it had determined. It is further pointed out that the multiplier to be determined by the Tribunal, it is based upon the judgment in the case of V.S.Goudar Vs. Oriental Insurance Co. ltd., reported in ILR 2002 KAR 2501, wherein the table of multiplier is given. : 39 : According to which, the multiplier between the age of 38 of 42, the multiplier would be 14, but it is required to be modified and the appropriate multiplier would be 15 instead of 14. This contention has taken by the learned counsel for the appellant during the course of arguments. It is based upon the evidence of PW1, as well as the ratio of the reliance, which were reflected in the impugned judgment, but the Tribunal holding the multiplier for the age in between 38 to 42 years. Therefore, it requires to be revisiting the impugned judgment insofar as the calculation regarding the loss of earning capacity, due to permanent disability of the claimant/petitioner by taking the avocation as driver is required to be determined.
12. Whereas the learned counsel for the respondent No.2/Insurance Company vehemently contends by counter to the arguments advanced by the learned counsel for the appellant, injured claimant, who has approached the Court of law by filing the claim petition under M.V. Act instead of filing the petition under W.C. Act, 1923 by seeking : 40 : compensation as he was working as driver under respondent No.1 and he was sustained crush injuries on the right hand and also amputation of his little finger of the aforesaid hand, while placing stones below the rear wheel of the lorry, wherein that rear wheel ran over the right hand of the injured claimant. Learned counsel for the respondent Insurance Company has taken me through the evidence and also the grounds which has urged in this appeal, but it is contended that the appellant being the driver by avocation of the offending lorry and the first respondent being the owner of the said lorry bearing No.KA-22/C-8072. No doubt, the claim petition was filed by the claimant under the provisions of M.V. Act or under the provisions of the W.C. Act and the same was maintainable in view of Section 167 of M.V. Act. The claimant after filing of the claim petition under Section 166 of the M.V. Act, 1988 (for short "the M.V. Act"). However, the liability of the Insurance Company, which has been fastened by the Tribunal, but this appeal questioning the quantum of compensation that it : 41 : could be awarded by the Tribunal. But the claimant who is approached the Court under the provisions of M.V. Act instead of approaching under the provisions of W.C. Act, 1923 for seeking compensation from the first respondent being the owner of the aforesaid lorry. In support of his contention taken up by the learned counsel for the appellant, he has placed several reliances and also drawn the attention of this Court in respect of Section 147 of the M.V. Act and has also placed reliance upon the decisions of the Hon'ble Supreme Court in the case of Ramshray Singh Vs. New India Assurance Co. Ltd., reported in 2003 ACJ 1550 and in the case of National Insurance co. Ltd., Vs. Prembai Patel and others reported in (2005)6 SCC 172. The liability of the Insurance Company in the instant case is to the extent of liability for having sustained crush injuries on the right hand and also amputation of his little finger of the aforesaid hand, while placing stones below the rear wheel of the lorry, wherein that rear wheel ran over the right hand of the injured claimant. The decision of this Court in the : 42 : case of New India Assurance Co. Ltd., vs. R.Tippeswamy and others, reported in 2007(1) KCCR 736, wherein it is observed that when the cleaner is standing beside the vehicle, then he would have to be considered as a 'third party' and the compensation would have to be determined under the provisions of the M.V. Act and that the provisions of W.C. Act would not be applicable. In the instant case, the injured being the claimant/petitioner by avocation he is driver in the aforesaid offending lorry, which belongs to the first respondent, as he being the owner of the said lorry, which was loaded with sand driven by him at Sutagatta Ghat area and the lorry was not climbing since it was steep ghat. At that time the petitioner was placing stones below the rear wheel of the lorry, that rear wheel ran over the right hand of the injured/claimant, as a result sustaining crush injuries on the right hand and also amputation of the little finger of the aforesaid hand. The same has been seen in the medical evidence. Whereas the PW2, the Doctor, who had given the treatment and issued disability certificate : 43 : holding 60% disability. It is not possible for him to drive the lorry, as he was doing prior to the accident. But the ratio of reliance placed in the judgment in the case of R.Tippeswamy and others (Supra) squarely applicable to the contention which has been taken by the learned counsel for the appellant during the course of arguments, in support of the grounds urged in this appeal for revisiting the impugned judgment and award passed by the Tribunal. Insofar as the claim petition filed by the claimant/petitioner under Section 166 of the M.V. Act, which was maintainable and award of compensation under the provisions of the aforesaid Act and fastening the liability on the Insurance Company to satisfy the award.
13. Learned counsel for the respondent No.1, Sri.M.K.Soudagar contends that the Insurance Company is liable to pay only limited compensation as prescribed under the W.C. Act. But according to his contention, the Insurance Company is not liable to pay any compensation to the injured/claimant petitioner by avocation as driver in : 44 : aforesaid lorry bearing No.KA-22/C-8072 as the injured was not a driver at the time of alleged accident while running rear wheel on the right hand by causing crush injuries and also it caused amputation on the little finger of the aforesaid hand. Further, he submits that the petitioner can seek compensation before the Workman's Compensation Commissioner under W.C. Act and not under the M.V. Act. The contention taken by the learned counsel for the respondent No.2 is not acceptable, keeping in view of the evidence of PW1 as well as the documents produced by him to establish his case against the respondent, wherein he sustained crush injuries on the right hand and also amputation of the little finger on the aforesaid hand. It is relevant to state that the Insurance Company has not laid any rebuttal evidence but only got marked Ex.R1 - Insurance Policy with consent. Whereas, the Tribunal has come to the conclusion after having gone through the evidence of PW1 and also documents produced at Exs.P1 to P16. It is relevant to state that Ex.P12 is the disability : 45 : certificate, Ex.P13 is the receipt of X-ray and Ex.P14 is the repot of radiologist, Ex.P15 is X-ray, Ex.P16 is the photographs, which indicates the crush injuries on the right hand and amputation of the little finger of the aforesaid hand. More or less the right hand of the petitioner cannot be used for driving heavy vehicles, as he lost earning capacity in which he had prior to the incident, due to which he has faced lot of risks in his life and also expectancy of his life is reduced. To this aspect the Tribunal has considered and awarded the compensation under the head loss of expectancy of life, but the Tribunal holding the disability to the extent of 30%, though the Doctor has assessed the disability of 60% to the upper limb. But keeping in view the evidence of PW2, the Doctor who had issued disability certificate, which is at Ex.P12 and also subjected to X-ray, which is at Ex.P15 as well as the photographs, which are at Ex.P16, it is requires to be revisiting the impugned judgment and award passed by the Tribunal insofar as the above said facts. Hence, keeping in : 46 : view of all aspects, the percentage of disability requires to be determined at 50% instead of 30%, for the reason that the claimant by avocation as driver by driving the heavy vehicle i.e., lorry, which belonging to first respondent. The said accident was caused due to the negligence on the part of the injured claimant only as he failed to take proper care while placing the stones below the rear wheel of the aforesaid lorry, which was driven by him at Sutagatta Ghat area, the lorry which was driven by him loaded with sand and it was going from Gokak towards Belgaum and the contention taken by the learned counsel for the respondent
- Insurance Company does not hold any force. Therefore, it is held that 50% of the disability is required to be assessed as per the evidence of PW2, Doctor who issued disability certificate, which is at Ex.P12. Once the little finger of the right hand is lost, it cannot be compensated in terms of money and he cannot discharge his avocation as driver in the heavy vehicles. Therefore, to that extent, it is said that there are substance in the contention of the learned counsel : 47 : for the appellant for revisiting the impugned judgment and award for enhancements of compensation under the head loss of earning capacity due to permanent disability on the right hand by causing crush injuries and also amputation of the little finger and it is also required to be revising the impugned judgment and award for determining the multiplier. But the Tribunal has taken multiplier of 14 between the age of 32 to 48 years, which is required to be taken the multiplier of 15 in view of the judgment in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298. Therefore, the compensation under the head loss of earning capacity is reassessed by taking the income of the injured at Rs.4,500/-, multiplier of 15 as well as the 50% disability, keeping in view of the evidence of PW2-Doctor, who issued the disability certificate, which is at Ex.P12. However, the Tribunal has worked out the compensation under various heads in the tabular form, which reads as under:
1. Pain and agony Rs.30,000-00
2. Medical expenses, attendant Rs.50,000-00 : 48 : charges, conveyance charges & nutritious food
3. Loss of income during laid up Rs.27,000-00 period (Rs.4,500 x 6)
4. Loss of earning capacity due to Rs.2,27,000-00 permanent disability (Rs.54,000x14x30%=Rs.2,26,800/-
1) rounded of to
5. Loss of amenities and future Rs.50,000-00 unhappiness
6. Loss of expectancy of life Rs.10,000-00 TOTAL Rs.3,94,000-00
14. The Tribunal has awarded total compensation of Rs.3,94,000/-, but for the reasons assigned in this appeal and keeping in view of the evidence of PW2, Doctor who issued disability certificate, which is at Ex.P12 and also the grounds urged in this appeal by the learned counsel for the appellant as well as the decisions, which are placed by him, it is required to be revisiting the impugned judgment by enhancing the compensation under the head loss of earning capacity due to permanent disability it works to Rs.4,500/- (income) x 12 (months) x 15 (multiplier) x 50% (disability) = Rs.4,05,000/- instead of Rs.2,27,000/- awarded by the Tribunal. The rest of the compensation awarded by the : 49 : Tribunal in the tabular form are undisturbed. Therefore, the compensation awarded by the Tribunal is reassessed as under:
1. Pain and agony Rs.30,000-00
2. Medical expenses, attendant Rs.50,000-00 charges, conveyance charges & nutritious food
3. Loss of income during laid up Rs.27,000-00 period (Rs.4,500 x 6)
4. Loss of earning capacity due to Rs.4,05,000-00 permanent disability (Rs.54,000x15x50%=Rs.4,05,000/-) rounded of to
5. Loss of amenities and future Rs.50,000-00 unhappiness
6. Loss of expectancy of life Rs.10,000-00 TOTAL Rs.5,72,000-00
15. Accordingly, the appeal is allowed in part. The appellant/claimant is entitled to the enhanced compensation of Rs.5,72,000/- instead of Rs.3,94,000/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till the date of realization of the entire amount. However, the Tribunal has passed the award stating that 50% of the amount shall be kept in fixed deposit for a period of five years in any nationalized Bank of : 50 : his choice and remaining 50% of the compensation amount shall be released in favour of the petitioner. Whereas in this appeal also the appellant shall deposit 50% of the compensation amount in Fixed Deposit in any nationalised Bank for a period of three years and he is permitted to withdraw interest that accrues on it from time to time and the remaining 50% of the compensation amounts shall be released in favour of the appellant with due identification.
Sd/-
JUDGE Vnp*