Karnataka High Court
Mr Hubert Ronald D Souza vs Sri T K Prakash on 5 February, 2020
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
MISCELLANEOUS FIRST APPEAL NO.2268/2010(WC)
BETWEEN:
1 . MR. HUBERT RONALD D'SOUZA,
MAJOR, AGED ABOUT 55 YEARS,
S/O JOHN BAPTIST D'SOUZA,
R/AT NO.16-4-323, MERAGHAR,
KALPANA ROAD, KANAKANADI,
MANGALORE-570004,
DAKSHINA KANNADA.
...APPELLANT
(BY SRI K. RAMA BHAT, ADVOCATE)
AND:
1. SRI T. K. PRAKASH,
AGED 26 YEARS
S/O T. S. KURIAN
R/AT TEKKUNKATTALE HOUSE,
KADABA-POST, KUTRUPADY-VILLAGE,
PUTTUR TALUK AND DIST.
DAKSHINA KANNADA.
2. THE NATIONAL INSURANCE CO. LTD.,
CHENNAI DIVISIONAL OFFICE, VIII, 57
2
MANANJU CENTRE,
THIRUVIKA INDUSTIRAL ESTATE,
POST BOX NO.3162
CHENNAI-600 32.
...RESPONDENTS
(BY SRI GURUPRASAD B.R. ADVOCATE FOR R1;
SRI LAKSHMINARASAPPA, ADVOCATE FOR
SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R2)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE WORKMENS COMPENSATION ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.11.2009
PASSED IN W.C.A.:S.R.-15/2006(NF) ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, DAKSHINA KANNADA, SUB DIVISION-2,
MANGALORE, AWARDING A COMPENSATION OF
RS.1,31,970/- WITH INTEREST @ 12% P.A. ETC.
THIS MISCELLANEOUS FIRST APPEAL COMING UP FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING.
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JUDGMENT
The present Miscellaneous First Appeal is filed by the appellant - owner against the Judgment & Award dated 17.11.2009 made in WCA.SR-15/2006 on the file of the Commissioner for Workmen's Compensation/Tribunal, Mangalore awarding total compensation of Rs.1,31,970/- with interest at the rate of 12% per annum from 30th day of the accident and fixing liability on the owner to pay the compensation.
2. It is the case of the appellant that he is the owner of the lorry bearing Registration No.KA-19A 8902 and the present 1st respondent - claimant is alleged to be a driver and the 2nd respondent is the insurer of the said lorry. The present 1st respondent filed a claim petition before the Commissioner for Workmen's Compensation alleging that on 13.10.2004 when he was driving the said lorry loaded with iron ore, from Chikkanayakanahalli to Mangalore at 4 Abbigudda, Athyalu village, he lost control over the said lorry and thereby met with an accident. Due to the said alleged accident, the claimant sustained injuries and therefore, he was taken to Athena Hospital at Mangalore, where he was treated as an in-patient from 13.10.2004 to 17.10.2004. At that time, he was drawing monthly wages of Rs.4,000/-. Due to the accident, he suffered permanent disability. Therefore, he filed the claim petition under Section 22 of the Workmen's Compensation Act, 1923 ('the Act' for short) seeking compensation.
3. The present appellant, who is the 1st respondent before the Commissioner for Workmen's Compensation/Tribunal has filed objections contending that the claimant was not the driver, but working as cleaner on the date of the accident. Though the accident took place on account of rash and negligent driving of the driver, no such injury occurred to the driver as alleged in the claim petition. 5 It is further denied that the claimant was in-patient from 13.10.2004 to 17.10.2004 and further contended that at no point of time, the claimant was appointed as driver and there was no employer and employee relationship between the appellant and the claimant. The appellant also denied that the claimant sustained injuries by accident arising out of and during the course of his employment. It is also contended that the offending vehicle was covered under the insurance policy and the policy was in force as on the date of the accident. Therefore, he sought to dismiss the claim petition.
4. The present 2nd respondent - Insurance company filed objections denying the averments made in the claim petition and contended that the claimant has not possessed valid Driving Licence at the time of the alleged accident and sought for dismissal of the claim petition. 6
5. The Commissioner for Workmen's Compensation/Tribunal based on the aforesaid pleadings, has framed the following issues:
i) Whether the claimant proves that he was a workman within the definition of Section 2(1)(n) of the Act under the present appellant - owner in the lorry bearing Registration No.KA-19A-8912 ?
ii) Whether the claimant proves that he was working under the present appellant in his lorry, as on the date of the accident ?
iii) Whether the claimant proves that he was earning Rs.4,000/- wages and was aged 25 years as on the date of the accident?
iv) What is the percentage of disability suffered by the claimant ?
v) Who is liable pay compensation along with interest ?
vi) What order ?
6. The present appellant examined as RW.1 and marked the Insurance policy - Ex.R1 . The Insurance 7 company has not adduced any evidence nor produced any documents, but cross-examined both PW-1 and RW.1.
7. The Commissioner for Workmen's Compensation/ Tribunal considering the entire material on record, both oral and documentary evidence, has recorded a finding that the claimant proved that he was working as a driver under the present appellant in the lorry bearing Registration No.KA-
19A 8912 and he is a 'workman' within the definition of Section 2(1)(n) of the Act. The claimant also proved that while working as a driver on the date of the accident, he sustained injuries in the accident. The claimant also proved that he was aged 23 years and earning monthly wages of Rs.4,000/- as on the date of the accident. He also proved that he is permanently disabled to the extent of 25% as per the evidence of the doctor - PW.2 and Ex.P5 - Disability Certificate. Accordingly, the Commissioner for Workmen's Compensation/Tribunal held that the appellant - owner is 8 liable to pay compensation since as on the date of the accident, the driver was not holding valid and effective Driving Licence.
8. This Court while admitting the appeal on 31.5.2013, has framed the following substantial question of law:
"Whether the Commissioner for Workmen's Compensation had erred in law in dismissing the claim petition as against the Insurance Company even though there was no material on record to show that the driver who was driving the insured vehicle at the time of accident had no driving licence ?"
9. I have heard the learned counsel for the parties to the lis.
10. Sri K. Rama Bhat, learned counsel for the appellant - owner contended that the Commissioner for Workmen's Compensation/Tribunal has erred in awarding total compensation of Rs.1,31,970/- with interest at the 9 rate of 12% per annum from 30th day of the accident and fixing liability on the present appellant - owner, without considering the material on record and ignoring that the said lorry was insured with the 2nd respondent - Insurance company. He would further contend that the Commissioner for Workmen's Compensation/Tribunal failed to notice that there is no relationship of employer and employee between the appellant and the claimant and claimant is not the workman within the meaning of provisions of Section 2(1)(n) of the Act. He also contended that the claimant failed to prove that he was the employee under the appellant and the accident occurred arising out of and during the course of his employment. He further contended that the claimant failed to prove that he is having valid driving licence at the time of accident and he has been appointed by the appellant to drive the lorry from Chikkanayakanahalli to Mangalore. Though the burden lies on the claimant to prove that he possessed a valid driving 10 licence as on the time of the accident, no such document was produced before the Court. He further contended that it is the specific case of the appellant that at the time of the accident, one Rajiv was driving the said lorry and not the claimant. The said aspect of the matter has not been considered by the Commissioner for Workmen's Compensation. The claimant has not produced any material before the Court that the accident occurred arising out of and during the course of his employment and he has sustained fracture of L-1 vertebra. The claimant has also not produced any document to show that he was drawing monthly wages of Rs.4,000/- from the appellant. Hence, the claimant is not entitled to any compensation. Therefore, he sought to allow the appeal.
11. Sri Guruprasad, learned counsel for the Respondent No.1 - claimant while justifying the impugned Judgment & Award passed by the Commissioner for 11 Workmen's Compensation/Tribunal, contended that the PW.1 - claimant has stated on oath that he was working as driver under the appellant - owner of the offending vehicle. PW.3 - Police Inspector has stated on oath that the claimant was the driver and the appellant is the owner of the offending vehicle. The jurisdictional Police after investigation filed the charge sheet and the appellant - owner paid the fine amount and got released the offending vehicle. Ex.P3 - Wound certificate also discloses that the claimant sustained injuries on account of the accident arising out of and during the course of his employment. The appellant has not disputed that he is the owner of the offending vehicle and not challenged the charge sheet filed. He would further contend that the appellant has not denied that the claimant is not all working under him and according to the appellant, the claimant was not working as driver, but working as cleaner in his lorry as on the date of the accident. Though the appellant - owner would contend that 12 one Mr. Rajiv was the driver, he was not examined. Once the claimant admitted in his pleadings that he is working as driver and the accident occurred arising out and during the course of his employment, Section 3 of the Act attracts and in the absence of valid Driving Licence, the owner is liable to pay the compensation. Therefore, he sought to dismiss the appeal.
12. Sri Lakshminarasappa, learned counsel for the Respondent No.2 - Insurance Company sought to justify the impugned Judgment & Award passed by the Commissioner for Workmen's Compensation/Tribunal. He would further contend that the Commissioner for Workmen's Compensation/Tribunal rightly come to the conclusion that if there is no valid Driving Licence as on the date of the accident, the Insurance Company is not liable to pay the compensation and the appellant - owner has to pay the compensation relying upon the judgment of the Hon'ble 13 Supreme Court in the case of New India Insurance Company vs. Prabhulal - (2008)1 KCCR Short Note - 36. He also relied upon the dictum of the Division Bench of this Court in the matter relating to workmen's compensation, in the case of New India Assurance Co. Ltd., vs. Smt. Zahirunnissa Dastagiri made in MFA No.4664/2005 disposed off on 12.01.2011, wherein this Court held that if the driver was not holding any valid Driving Licence as on the date of the accident, the Insurance Company is not liable to pay the compensation and the owner has to pay the compensation. Therefore, he sought to dismiss the appeal.
13. Having heard the learned counsel for the parties, it is the specific case of the claimant that he was working as driver of the lorry bearing Regn.No.KA-19A 8912 under the appellant on monthly wages of Rs.4,000/- and that on 13.10.2004 when he was driving the said lorry loaded with 14 iron ore from Chikkanayakanahalli to Mangalore at Abbigudda, Athyalu village, he lost control over the said lorry and thereby met with an accident. The accident occurred arising out of and during the course of his employment and he was in-patient in the hospital from 13.10.2004 to 17.10.2004. The appellant - owner filed objections before the Commissioner for Workmen's Compensation stating that the claimant was not working under him as a driver, but working as Cleaner as on the date of the accident. The appellant - owner did not deny that the accident occurred arising out of and during the course of employment. The injuries sustained by the claimant cannot be disputed in view of the fact that the jurisdictional Police registered crime as evidenced from the material documents - Ex.P1 to P5, which clearly indicate that the accident occurred arising out of and during the course of employment. It is also not in dispute that the jurisdictional Police after investigation filed the charge sheet 15 against the driver as per Ex.P4. It is also not in dispute that the present appellant who is the owner of the said lorry gave indemnity bond before the Police as per Ex.P8 and got released the vehicle. In view of the aforesaid facts, it is clear that the accident occurred arising out of and during the course of employment and attracts the provisions of Section 3 of the Act.
14. On a careful reading of the provisions of Section 3 of the Act, it is clear that, in order to attract sub-section (1) of Section 3 of the Act, three conditions must be fulfilled:
a) personal injury;
b) accident; and
c) arising out of and in the course of employment
15. It is necessary that if the workman/employee was working, he must be actually working at the time of injury or accident. Admittedly, in the present case, it is not in 16 dispute that the claimant sustained injury in the accident occurred arising out of and during the course of employment. Though the appellant - owner stated that the claimant is not working with him as a driver, but admitted that he is working in his lorry as a Cleaner.
16. It is to be stated that initially, in the claim petition, it is stated that the claimant was working as Cleaner in the lorry belonging to the appellant - owner. Subsequently, the claimant amended the same as per the court order dated 4.1.2007 and stated that he was working as driver in the said lorry. The same has not been challenged by the appellant - owner.
17. In the present case, the accident is admitted and the oral and documentary evidence depicts the relationship of employer and employee between the appellant and the claimant. PW.1 - claimant has stated on oath that he was 17 working under the appellant on a monthly wages of Rs.4,000/- and the same is supported by other oral and documentary evidence. It is also not in dispute that the jurisdictional Police after investigation filed the charge sheet against the driver as per Ex.P4. It is also not in dispute that the present appellant who is the owner of the said lorry gave indemnity bond before the Police as per Ex.P8 and got released the vehicle. The appellant has not disputed the ownership of the vehicle nor challenged the charge sheet - Ex.P4 and the indemnity bond - Ex.P8.
18. In view of the aforesaid admitted facts, it is clear that the claimant sustained injuries in the accident occurred arising out of and during the course of his employment. The claimant - driver was not holding valid Driving Licence as on the date of the accident. Therefore, the contention of the appellant - owner that he is not entitled to pay 18 compensation, cannot be accepted in view of the provisions of Section 3 of the Act.
19. Though the Commissioner for Workmen's Compensation/Tribunal relied upon the judgment rendered by the Hon'ble Supreme Court under the provisions of the Motor Vehicles Act in the case of New India Insurance Company vs. Prabhulal - (2008)1 KCCR Short Note - 36 while fixing liability on the owner, the fact remains that once the relationship of employer and employee is admitted by the owner, the owner is liable to pay the compensation if the driver was not holding valid Driving Licence as on the date of the accident. My view is also fortified by the dictum of the Division Bench of this Court in the case of New India Assurance Co. Ltd., vs. Smt. Zahirunnissa Dastagiri made in MFA No.4664/2005 dated 12.1.2011, wherein the Division while considering the provisions of Section 3 of the Act, held at paragraph-6 as under: 19
"The relationship between the employer and employee is not in dispute. It is also not in dispute that Dastagiri died while discharging his duties. It is also not in dispute that Dastagiri did not possess a driving licence to drive the autorickshaw. Now the question is that when the deceased did not possess a driving licence whether the insurance company is liable to indemnify the insurer. Admittedly, the policy has been issued covering the risk of the driver. When there is a breach of terms and conditions of the policy, it is always open for the insurance company to raise as a defence. When the deceased did not possess licence, the appellant insurance company is bound to raise a defence that it is not liable to indemnify the owner on account of driver not possessing a valid licence. It is no doubt true that petition is under the provisions of the workmen's compensation Act, 1923, and in view of the judgment of the Supreme Court in the case of National Insurance Co. Ltd., vs, Mastan and another (AIR 2006 SC 577), we are of the opinion that the appellant - Insurance company is entitled to raise as a defence when the deceased did not possess a valid licence. According to us, the Commissioner has committed a serious error in fixing the liability on the 20 insurance company when the deceased did not possess a licence. Accordingly, we answer the question of law in favor of the appellant."
20. In view of the aforesaid reasons, the impugned Judgment and Award passed by the Commissioner for Workmen's Compensation awarding total compensation of Rs.1,31,970/- with interest at the rate of 12% per annum from 30th day of the accident and fixing liability on the owner to pay the compensation, is just and proper. The appellant has not made out any case to interfere with the impugned Judgment & Award passed by the Tribunal, exercising the powers under the provisions of Section 30 of the Act.
21. Accordingly, the Miscellaneous First Appeal is dismissed.
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22. The amount in deposit, if any made by the appellant - owner shall be transmitted to the jurisdictional Tribunal forthwith along with the original records.
Ordered accordingly.
Sd/-
JUDGE Gss/-