Madhya Pradesh High Court
Mohd.Asif vs Hazi Mohammad Nayeem & Ors on 29 October, 2012
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
(1)
M.A. No.54/2003
HIGH COURT OF M. P. JUDICATURE AT JABALPUR
Single Bench :
Hon'ble Shri Justice A.K. Shrivastava
Misc. Appeal No.54 / 2003
Appellant Mohammad Asif,
S/o. Shri Sheikh Nawab, R/o.
Bhantalaiya, Police Station
Hanumantal, Jabalpur (M.P.)
Vs.
Respondents: 1 Hazi Mohammad Nayeem Kotwali
Bazar, Jabalpur.
2. The New India Insurance Co. Ltd.
Jabalpur (M.P.)
3. The Commissioner for Workmen
Compensation Act, Labour Court,
Jabalpur (M.P.)
________________________________________________________
Shri Ravish Deolia, Advocate for appellant.
None for respondent no.1.
Shri Pranay Gupta, Advocate for respondent No.2.
________________________________________________________
JUDGMENT
(Delivered on this 29th day of October, 2012) This appeal under Section 30 of the Workmen's Compensation Act, 1923 (in short "W.C. Act") has been filed on behalf of the appellant, whereby his application under Section 10 of W.C. Act has been dismissed.
(2)M.A. No.54/2003
2. The facts of the case and pleadings of parties are narrated in para 2 and 3 of the order passed by the Commissioner under W.C. Act, hence the same need not be reiterated here since the only question which has arisen in this appeal is whether respondents are jointly and severally liable to pay compensation to the appellant despite the accident has not occurred of the vehicle i.e. Jeep No.MP20HA-0292 which was insured by the Insurer/respondent no.2. Learned Commissioner on the basis of evidence came to hold that the appellant was serving as Driver of first respondent upon Jeep No.MP20-HA-0292. On the direction given by his employer, the appellant on 09.04.2001 was driving the aforesaid Jeep and when he was coming back from Patan to Jabalpur nearby village Tevar on account of some mechanical breakdown, the Jeep became disordered as a result of which the appellant, to bring a mechanic from Jabalpur, boarded a bus No.MIK-7177 which was going to Jabalpur. The said bus met with an accident with a truck as a result of which the appellant sustained bony injuries on his left leg, shoulder and back bone. Since according to the appellant the incident had arisen out of and during the course of employment and further because vehicle Jeep No.MP20HA- 0292 was insured by the Insurer including the risk of the driver, therefore, respondents no.1 and 2 are jointly and severally liable to pay compensation.
3. The contention of learned counsel for the appellant is that this fact has proven that appellant was employed under the (3) M.A. No.54/2003 employment of first respondent upon the jeep No.MP20HA-0292. Further it is proved that on the date of accident, the said jeep was being plied by the appellant as per the instructions of his employer/respondent no.1. Learned counsel further submitted that said jeep became disordered and to bring the mechanic, the appellant boarded in a bus and therefore in these state of affairs learned Commissioner contrary to law has held that accident has not arisen out of and during the course of employment. In support of his contention learned counsel has placed reliance upon the Division Bench decision of this Court National Insurance Co. Ltd. v. Rohti and others 2008 ACJ 74 and also the Division Bench of Karnataka High Court United India Insurance Co. Ltd. v. Doddahallappa and another 2008 ACJ 2476.
4. On other hand Shri Pranay Gupta, learned counsel for Insurer/respondent no.2 argued in support of the impugned order and submitted that even if it is held by this Court that the appellant met with an accident during the course of employment since the impugned accident has nothing to do with insured Jeep, therefore, Insurer cannot be held liable to pay any compensation. In support of his contention learned counsel has placed heavy reliance on the decision of Supreme Court in Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. and Anr. AIR 2009 SC 2019.
5. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part only against the (4) M.A. No.54/2003 owner/respondent no.1.
6. On bare perusal of the findings recorded by the Commissioner as well as after going through the evidence this Court finds that appellant was under the employment of respondent no.1 on Jeep No.MP20-HA-0292. It is also proved that on account of some mechanical breakdown the said jeep became disordered and to bring a mechanic the appellant boarded the bus No.MIK-7177 which met with an accident as a result of which he sustained fractures. The appellant examined the doctor who found fracture of left hip Joint, fracture of neck femur alongwith the fracture of acetabulam. Appellant also sustained partial alkalosis on the joint of left hip bone. Although medical board recommended that appellant has sustained 40% disability but it is borne out from the evidence that now the appellant cannot ply any vehicle and therefore learned Commissioner has rightly arrived at a conclusion in para 12 that looking to the job of appellant since he is a driver and he has sustained bony injuries, eventually now he cannot drive any vehicle and therefore he has sustained 100% disability. In this regard I may profitably place reliance upon the decision of Supreme Court Mohan Soni v. Ram Avtar Tomar and others 2012(3) MPLJ 3. Neither any cross objection nor cross appeal has been filed by respondents no.1 and 2 against the impugned order of Commissioner by which it has been held that appellant has sustained 100% disability.
7. Since upon the direction given by his employer the (5) M.A. No.54/2003 appellant was plying the vehicle which became disordered and even if appellant was going in a bus which met with an accident in which he sustained several bony injuries it will be deemed for all practical purposes that accident has arisen out of and during the course of his employment.
8. The question now hinges as to whether Insurer/respondent no.2 is liable to pay any compensation. Admittedly the policy (Ex.D/1) which has been placed on record has been issued only to indemnify the person who was driving the vehicle i.e. Jeep No. MP20-HA-0292. Since the accident has not occurred by that vehicle therefore according to me Insurer is not liable to pay compensation because appellant was traveling in another bus for bringing mechanic which after traveling certain distance met with an accident resulting into injuries sustained by appellant. In this backdrop the decision of Supreme Court Malikarjuna G. Hiremath (supra) placed reliance by learned counsel for respondent No.2/Insurer is quite relevant. Since the accident of appellant has arisen out of and during the course of employment and therefore first respondent/employer is liable to pay compensation. Thus, according to me, the respondent no.1 is liable to pay the compensation to the appellant. The appellant has stated that on the date of accident, his age was 35 years. Indeed no evidence in rebuttal has been adduced by respondents. Learned Commissioner has also found that appellant was earning Rs.4000/- per month. This has also not been rebutted by employer by adducing any evidence (6) M.A. No.54/2003 and therefore learned Commissioner has also arrived at a finding that appellant was earning Rs.4000/- per month. Thus, factor 197.06 is to be applied in terms of Schedule-IV to Section 4 of W.C .Act. Accordingly, the respondent no.1 is liable to pay compensation. However, what should be the exact amount of compensation, the Commissioner is hereby directed to calculate the same. The Commissioner looking to the facts and circumstances shall also compute the penalty and interest in accordance with law.
9. Resultantly, this appeal succeeds in part and is hereby allowed to the extent indicated hereinabove. The appellant is entitled for the cost of appeal against the respondent no.1. Counsel fee Rs.1000/- if pre-certified.
(A.K. Shrivastava) Judge SS