Madhya Pradesh High Court
National Insurance Co Ltd Havind ... vs Raju Prajapati on 14 November, 2017
1 M.A.No. 785/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ANAND PATHAK
MISCELLANEOUS APPEAL NO. 785 OF 2014
National Insurance Co. Ltd.
Versus
Dhaniram Prajapati & Anr.
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Shri S.Gajendragadkar, learned counsel for the
appellant/Insurance Company.
Shri Chetan Kanoongo, learned counsel for respondent No.
1/claimant.
None for respondent No. 2/owner though served and
Vakalatnama has been filed on his behalf by Shri V.K.Sharma,
Advocate.
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ORDER
(Delivered on this 14th day of November, 2017) Present Miscellaneous appeal under Section 30 of the Employee's Compensation Act, 1923 has been preferred by appellant/Insurance Company being aggrieved by impugned award dated 6/6/2014 passed by the Commissioner, Employee's Compensation and Labour Court No.1, Gwalior in case No. 5/B/WCA/2013 (PD), preferred by respondent No.1/claimant, whereby, the application preferred by respondent No. 1 under Section 4,10,11 and 12 of Employee's Compensation Act, 1923 has been allowed and appellant-Insurance Company has been directed to pay compensation of Rs. 5,66,784/- to respondent No. 1 alongwith interest.
2. Precisely stated facts of the case are that on the fateful day of 25/8/2012, respondent No. 1 was working at the field/farm of respondent No. 2 when tractor vide registration No.M.P. 07-H-8632 got stuck in a pit and to pull out the tractor from the pit, another tractor was called for and tied to the tractor 2 M.A.No. 785/2014 stuck in the pit with a rope. Driver Chatur Singh tried to drive the stranded tractor out of the pit, but somehow things could not move out in the right direction because tractor toppled and went turtle causing injury to respondent No. 1, who was sitting on the mudguard of the tractor and suffered an injury in his spine which rendered him permanently and totally disabled. The tractor which caused the incident was insured with appellant-Insurance Company for the period 31st March, 2012 to 30th March, 2013; whereas, the date of incident is 25/8/2012, therefore, tractor was insured by the appellant-Insurance Company.
3. On the application/claim preferred by respondent No. 1 under Section 4,10,11 and 12 of the Employee's Compensation Act, 1923 (for short "Act of 1923"), appellant-Insurance Company and respondent No. 2 filed their respective replies. After framing of issues, evidence was led by the parties and after examining the respective pleadings, Commissioner, Employee's Compensation Act, Gwalior passed the impugned award dated 6/6/2014,therefore, appellant-Insurance Company is before this Court.
4. Vide order dated 9/10/2015, this Court admitted the appeal on the following substantial questions of law:-
"(i) Whether, the learned Commissioner erred in holding appellant liable merely for the reason that the policy covers WC to employee, overlooking the fact that t he applicant was sitting on the bonnet and the tractor which is not having any carrying capacity, and the applicant himself being negligent not entitled for compensation by virtue of Section 3 of the Employee's Compensation Act, and provisions of Motor Vehicles Act, and provisions of Motor Vehicles Act/Rules which prohibit carrying passenger on tractor ?
(ii) Whether the tractor is specified category of the vehicle separately defined under Section 2 (44) of 3 M.A.No. 785/2014 the Motor Vehicles Act and whether a person holding a license of Light Motor Vehicle is entitled to have driven the tractor also ?
(iii) Whether, the learned Commissioner for Employee's Compensation and Labour Court No. 1, Gwalior erred in assessing the permanent disability to the extent of 100% as proved without the disability certificate being proved by the doctor issuing the same ?"
5. Regarding substantial question No. 1, learned counsel for the appellant submitted that Regulation 28 of the Rules of Road Regulation, the travelling on the tractor; except the driver is not permissible. Regulation 28 reads as under:-
"Driver of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow any person to be carried on the tractor...."
Therefore, the risk of passenger travelling on the mudguard, which is not a place for sitting on tractor is not covered.
6. As per the FIR (Ex.P/2) which was lodged by father of respondent No. 1 at the time of incident, the respondent No. 1 was directed by the driver of tractor to stand on bonnet of insured tractor,which was a risky / maneuver for getting the tractor out of the pit and therefore, respondent No. 1 willfully discarded the safety measures. Therefore, in view of proviso to sub-section (b) of Section 3 (i) of Act of 1923, appellant is not liable to pay the sum under compensation. He relied upon judgment rendered by this Court in the matter of National Insurance Co. Ltd. Vs.Jagdish and Ors., 2004 (1) TAC 165 (M.P.) as well as Nathu Singh Kushwaha Vs. Narayan Singh, 2010 ACJ 2749 and asserted that the Insurance Company has right to pay and recover. He also relied upon the judgment of Full Bench of this Court in the matter of Vimla Bai Vs. Sharif Khan and Ors., 2009 (4) MPLJ 453 and on the basis of provisions of Section 124 and 125 of the Indian Contract Act, 1872 submits that insurer being 4 M.A.No. 785/2014 vicariously liable to indemnify the insurer, if the employer is not liable to pay the amount of compensation. In alternative argument, he submits that owing to contributory negligence on the part of respondent No. 1,the amount of compensation to the extent of contributory negligence on the part of respondent No. 1 is liable to be deducted.
7. It is further submitted on behalf of appellant that perusal of Insurance Policy (Ex. P/5) it is clear that premium of Rs.100/- was paid for risk of owner-driver. Under the Provisions of Indian Motor Tariff, this covers owner-driver subject to following:-
(a) owner-driver is the registered owner of the vehicle insured,
(b) the owner-driver is the insured names in this policy;
(c) the owner-driver hold an effective driving licence in accordance with the provisions of Rule 3 of Central Motor Vehicles Rules, 1989, at the time of accident.
Therefore, risk of present respondent No. 1 was not covered and respondent No. 1 did not come within the definition of driver,therefore, according to him, the Court below erred in holding the appellant liable despite the negligence of respondent No. 1.
8. Regarding the substantial question of law No. (ii), appellant submits that tractor is defined under Section 2 (44) of the Motor Vehicle Act, 1988. As per the claim application, at the time of accident, the trolley was also attached to the tractor, whereas, the driver of the tractor was having driving licence to drive Light Motor Vehicle only. The tractor attached with trolley falls within the definition of transport vehicle. He relied upon decision of Hon'ble Apex Court in the case of Natwar Parik Vs. State of karnataka and Ors., (2005) 7 SCC 364 and that of Bombay High Court in the case of National Insurance Co. Ltd. Vs. Sushila and Ors., 2010 ACJ 2671. He referred Section 3 of Motor Vehicles Act, 1988 and submits that driver holding licence to drive LMV cannot drive a transport vehicle unless his driving licence specifically entitles him to do so. He also submits that this issue has been referred to the Larger Bench in view of judgment 5 M.A.No. 785/2014 of Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company (2016) 4 SCC 298.
9. Regarding substantial question of law No. (iii),learned counsel for the appellant No. 3 submits that the findings of Court below whereby without examining the doctor, 100% permanent disability has been assessed is contrary to law laid down by full Bench of this Court in the matter of Kamal Kumar Vs. Tazuddin and Ors., 2004 (2) MPLJ 472 and Omprakash Vs. Raseed Khan and Anr., 2011 (2) MPWN 29. Therefore, according to him, findings given by Courts below are erroneous and contrary to law.
10. On the other hand, learned counsel for respondent No. 1 matched the vehemence of the appellant in equal measure and submits that although substantial question of Law No. 1 refers that respondent No. 1 was sitting on the bonnet but the Court below has recorded finding in paragraph 31 of the impugned award that respondent No. 1 was sitting on the mudguard of the tractor. Furthermore, the appellant-Insurance Company also pleaded in the memo of appeal (para 2 and 6) that respondent No. 1 was sitting on the mudguard of the tractor and it is only for the purpose of substantial question of law No. (ii) the word bonnet has been erroneously inserted whereas instead of word bonnet the word mudguard ought to be read. Finding of facts cannot be disturbed in an appeal when the same has not been put to test by the appellant.
11. Regarding the substantial question of law No. (i), he further submits that the reliance placed by the appellant on Regulation 28 of Rules of Road Regulation is misconceived because the regulations are made for regulating road safety and cannot be applied for vehicles used in agricultural activities or for agricultural purposes. He reiterated his plea regarding insertion of word mudguard in place of word bonnet as according to him,respondent No. 1 was sitting on mudguard and not on bonnet, therefore, appellant/Insurance Company cannot be permitted to adopt this plea at this stage. He placed reliance upon the Division 6 M.A.No. 785/2014 Bench decision of this Court in the matter of Oriental Insurance Co. Ltd. Vs. Rajkumari and Anr., 1992 ACJ 103 (M.P.). He submits that appellant/Insurance Company was required to establish negligence on the part of respondent No. 1 to absolve itself of liability which Insurance Company failed to do. Therefore, Insurance Company cannot take recourse to regulations made for plying vehicles on the road and they cannot be applied ipso facto to vehicles engaged in agricultural activities on field and farms. He relied upon the decision of Karnataka High Court in the matter of Manager, National Insurance Co. Ltd. Vs. Imamsab & ors., {MFA No. 7837/2007 (WC)}.
12. It is further submitted that appellant/Insurance Company has not demonstrated any negligence on the part of respondent No. 1 by sitting on the mudguard of the tractor coupled with the fact that Insurance Company itself issued the Insurance Policy with respect to tractor for two people. The liability of the Insurance Company cannot be absolved. He relied upon the decision of this Court in the case of National Insurance Company Ltd. Vs. Smt. Radha Bai, MACD 2013 (1) (M.P.) 192.
13. Regarding substantial question of Law No. (ii), it is submitted that Section 2 (21) of the Act of 1988 defines Light motor vehicle as "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7,500 kgs. The registration certificate of the vehicle (Ex. D/2) is tractor; vide registration No. M.P.07-H-8632 indicates that unladen weight of the tractor is 1830 kgs, therefore, it will fall under the category of light motor vehicle and person having driving licence to drive light motor vehicle can drive tractor. He relied upon the decision of Delhi High Court in the matter of New India Assurance Co. Ltd. Vs. Sanjay Singh, (MAC App. 561/2012).
14. Regarding substantial question of law No. (iii),counsel for respondent No. 1 submits that the Court below has dealt with 7 M.A.No. 785/2014 the objection with respect to examination/cross-examination of the doctor for proving the disability certificate in paragraphs 23 to 25 of the impugned order. Court below has recorded a specific finding that when the permanent/total disability of the respondent No. 1 was prima facie evident, then no requirement existts for disability certificate; to be proved by the doctor. He relied upon para 24 of the impugned award,wherein, Court has given specific finding in respect of medical certificate given as well as the oral evidence of respondent No. 1 suffered permanent disability. He relied upon decision of Kerala High Court in the matter of Joseph K.S. Vs. Prasanna, 2013 (136) FLR 73. It is further submitted that assessment of loss of earning capacity by a qualified practitioner is stipulated under explanation II to Section 4 (1) (c) of the Act, whereas, Section 4 (1) (b) nor the explanation attached to it provides for assessment of any kind regarding loss of earning capacity or extent of disability by a qualified medical practitioner. Therefore, Court below has rightly given the finding in respect of 100 % permanent disability without calling the doctor for proving the same. He prayed for dismissal of the appeal.
15. Heard learned counsel for the parties at length and perused the record.
16. Vide order dated 9/10/2015, this Court admitted the appeal on the following substantial questions of law:-
"(i) Whether, the learned Commissioner erred in holding appellant liable merely for the reason that the policy covers WC to employee, overlooking the fact that t he applicant was sitting on the bonnet and the tractor which is not having any carrying capacity, and the applicant himself being negligent not entitled for compensation by virtue of Section 3 of the Employee's Compensation Act, and provisions of Motor Vehicles Act, and provisions of Motor Vehicles Act/Rules which prohibit carrying passenger on tractor ?8 M.A.No. 785/2014
(ii) Whether the tractor is specified category of the vehicle separately defined under Section 2 (44) of the Motor Vehicles Act and whether a person holding a license of Light Motor Vehicle is entitled to have driven the tractor also ?
(iii) Whether, the learned Commissioner for Employee's Compensation and Labour Court No. 1, Gwalior erred in assessing the permanent disability to the extent of 100% as proved without the disability certificate being proved by the doctor issuing the same ?"
17. Regarding substantial question of law No. (i):
In para 31 of the impugned award while considering the arguments of appellant/Insurance Company, trial Court recorded that respondent No. 1 was sitting on the mudguard. While referring to cross-examination of the respondent No. 1 also, the said fact remained intact. Therefore, the contention of respondent No. 1 gets justified when he submits that the word bonnet has wrongly been referred in the substantial question of law No. (i) and mudguard ought to have been referred in place of bonnet. Therefore, for the discussion purpose, it is clarified that respondent No. 1 was sitting over mudguard. Respondent No. 1 was working in the agricultural field of respondent No. 2. He specifically pleaded in his examination-in-chief also and his cross-examination remained un-rebutted in this regard. The question put forth by Insurance Company regarding documents for salary purpose, were rightly rejected by the Court below because in unorganized sector , it cannot be expected from any worker to get regular appointment letter or accountable salary. The employer of respondent No. 1 i.e. respondent No. 2 was examined as PW/2 and he also accepted that respondent No. 1 was working in his field.
18. Once, the respondent No. 1 was working in the employment of respondent No. 2 and was working on the 9 M.A.No. 785/2014 agricultural field then it was his duty to help in getting the tractor out of the pit and while doing so, he suffered permanent disability. The situation is such which could not have established any negligence on the part of respondent No. 1 because he was helping the tractor driver to come out of the pit and therefore, he was sitting over the mudguard.
19. Once the Insurance Company has charged premium for two people then it was the liability of the company and when policy Ex. D/5 itself contains payment of premium for one employee beside compulsory PA to owner cum driver, then liability of the Insurance Company cannot be absolved. Appellant- Insurance Company itself has insured risk of two persons one owner-cum-driver and another his employee then Insurance Company is not supposed to hold back the liability of two employees because the tractor was having no sitting capacity except the driver.
20. Judgment rendered by this Court in the matter of Smt. Radha Bai (supra) is applicable in the fact situation of the case. Similarly in respect of the contentions of appellant-Insurance Company in respect of Regulation 28 same is not supported by any legal provisions or legal pronouncement. In this case, the liability has arisen under the Act of 1923. The relationship between the driver and owner of tractor is that of employer and employee. During the course of employment, the accident occurred and employee/respondent No. 1 suffered permanent disability. The vehicle involved in the accident is insured . It is in this fact situation looking to the insurance policy issued by the insurer, gains prominence which appears to be a comprehensive policy. In the instant case, no evidence has been produced by the Appellant-Insurance Company in respect of act of negligence committed by respondent No. 1 and when no evidence is forthcoming then merely because of his sitting on mudguard, the contention of appellant-Insurance Company cannot be accepted.
21. The reliance placed by the appellant on Regulation 28 10 M.A.No. 785/2014 appears to be misconceived as the regulation pertains to road safety, whereas, the site in hand is agricultural field,therefore,the Regulation 28 is of no help to the appellant. True it is that a driver when driving a tractor shall not carry or allow any person to be carried on the tractor but here the matter pertains to employee's compensation and not an incident arising out of motor vehicle accident simplicitor, therefore, in the considered opinion of this Court when insurer itself has insured the two persons on tractor including one employee and respondent No. 1, who suffered injuries during the course of employment and respondent No. 2- employer duly established the relationship of employee and employer then Court below has rightly considered the said aspect and passed the impugned award entitling the respondent No. 1 to receive compensation under the Act of 1923. Substantial question of law No. 1 is answered accordingly.
22. Regarding substantial question of law No. 2:
It is submitted that if driver of the tractor is having valid licence to drive LMV,no separate endorsement on the licence is required to drive a tractor. Hon'ble Apex Court in the case of S.Iyyapan Vs. M/s United India Insurance Company Ltd. And Anr., 2013 (3) TAC 392 (SC) has held that merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab,which is a light motor vehicle, it cannot be held that insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle.
23. In almost similar fact situation of the case, Hon'ble Apex Court has similar view in the matter of Pepsu Road Transport Corporation Vs. National Insurance Company, 2013 (10) SCC 217.
24. Even otherwise, the appellant/Insurance Company is liable to compensate in terms of sub-clause (c) of Clause (i) of the Proviso to sub-section (1) of Section 147 of the Act of 1988.
Substantial question of law is answered accordingly in favour of respondent No. 1.
11 M.A.No. 785/201425. As regards substantial question of law No. (iii):
26. In the present case the Commissioner, Employee's Compensation Act has dealt with the objection in respect of examination/non-examination of the doctor for proving the disability certificate. Detailed discussion has been made;wherein, learned Commissioner has recorded that when permanent total disability of the respondent No. 1 is prima facie evident looking to the documents as well as his oral evidence, then, there is no requirement to prove the disability certificate by the doctor. As far as assessment of loss of earning capacity by the qualified medical practitioner is concerned, it is stipulated under Explanation II to Section 4 (1) (c) of the Act of 1923, whereas Section 4 (1) (b) and its explanation, nowhere provided for assessment of any kind, whether loss of earning capacity or extent of disability by a qualified medical practitioner. Explanation II appended to Section 4 (1) (c) of the Act of 1923 cannot be extended or read with Section 4 (1) (b) of the Act of 1923. It is confined to sub-section under which it is provided.
27. Section 4 (1) (b) of the Act of 1923 categorically provides that where the loss of earning capacity is 100% and when there is no dispute then any assessment by a qualified medical practitioner is not contemplated. Legislative intent in this regard is clear and categorical as it believes the wisdom and discretion of a Presiding Officer to assess 100% permanent disability. Once oral evidence where respondent No. 1 himself deposed on oath and in cross-examination by the other side as well as medical certificate established the medical status of respondent No. 1 as 100 % permanently disabled person, therefore, trial Court rightly treated him as 100% permanent disabled person. Judgment of Delhi High Court in the case of Oriental Insurance Company Vs. Nausad, (FAO No. 345/2007) is worth consideration in this regard. Therefore, in absence of examination of the doctor, case has suffered no adversity. Court below has rightly expressed the opinion about the permanent 12 M.A.No. 785/2014 disability of respondent No. 1 without examination of qualified medical practitioner. Therefore, no illegality has been caused in not examining the qualified medical practitioner/ doctor and holding the respondent No. 1 as permanently disabled person up to the extent of 100%. Substantial question of law No. (iii) is answered accordingly.
28. In view of the answers made to the substantial questions of law, appeal of the appellant-Insurance Company fails and while affirming the findings of the Court below, appeal filed by the Insurance Company is hereby dismissed being bereft of merits.
29. Appeal stands dismissed.
(Anand Pathak) Judge jps/-
JAI Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF M.P. BENCH GWALIOR, ou=P.S., PRAKASH postalCode=474011, st=Madhya Pradesh, 2.5.4.20=21a61bf5c087ff6d5bbc8 d38b611677f4e4306c281cca8759 SOLANKI 91d2a0b6545c503, cn=JAI PRAKASH SOLANKI Date: 2017.11.15 12:32:03 +05'30'