Ganesh vs Krishnappa and Others

K.L. Manjunath, J.—Appellant who was the claimant before the Commissioner for Workmen''s compensation, Mangalore, in WCKCA:SR-14:2004:NF dated 18.08.2005 has filed this appeal, being not satisfied with the liability saddled on his employer the first respondent-Krishnappa.

Heard the learned counsel for the parties.

The undisputed facts in this appeal are that the appellant-claimant was working as a driver under the first respondent-Krishnappa, in a tanker lorry bearing No. KA-21:85-86. On 05.02.2004 while discharging his duties and in the course of employment, he was driving the lorry of the first respondent from Sagar towards Shimoga. At about 6.45 a.m. in the morning near Upper Tunga Canal of Malligenahalli, the accident occurred due to rash and negligent driving of the bus bearing No. KA-14-7831 which was coming from the opposite direction, as a result of which, the appellant sustained grievous injuries. Since he sustained grievous during the course of employment, he lodged a claim petition before the Commissioner under Workmen''s Compensation Act, 1923.

The first respondent admitted the relationship. The second respondent-Insurance Company contended that since the appellant did not possess a valid licence, liability cannot be saddled on him. Therefore, the second respondent requested the Commissioner to dismiss the petition against him.

The Commissioner even without formulating the point in regard to the appellant possessing valid driving licence to drive the vehicle in question, awarded the compensation of Rs. 1,95,696/- with interest at 12% p.a. fixing the liability only on the employer and exonerated the Insurance Company. Challenging the same, present appeal is filed.

Along with the appeal, an application is also filed under Order 41 Rule 27 CPC producing a copy of the driving licence to show that he had possessed valid driving licence to drive the lorry in question on the date of the accident.

We have heard the learned counsel for the parties.

The learned counsel for the appellant submits that the Commissioner has committed an error in fixing the liability only on the employer without fixing the liability on the Insurance Company. According to him, the Commissioner did not raise a point for consideration in regard to the appellant possessing driving licence to drive the vehicle. Even though there was no point raised for determination of the case by the Commissioner, erroneously in the operative portion he has exonerated the Insurance Company and in view of the filing of an application by producing the licence to show that he had valid licence to drive the vehicle, he requested the Court to set aside the order and remand the matter to the Commissioner for Workmen''s Compensation, Mangalore, for fresh consideration in accordance with law.

Having heard the learned counsel for the appellant and respondent No. 2, we are of the view that the matter requires to be reconsidered by the Commissioner for Workmen''s Compensation in regard to liability of the Insurance Company for two reasons.

Admittedly, the Commissioner did not raise a point for consideration in regard to the validity of the licence said to have been held by the appellant. When a point for consideration is not raised, the Commissioner has committed an error in exonerating the Insurance without there being a finding. If he had raised a point, the appellant had every opportunity to produce the driving licence.

Even otherwise, now the appellant has produced the driving licence before this Court by filing an application under Order 41 Rule 27 of CPC. Since there is no proper finding in regard to the validity of the driving licence he possessed, we are of the opinion that the matter requires to be remanded to the Commissioner for Workmen''s Compensation in accordance with law to determine the liability of the Insurance Company.

In the result, the appeal is allowed. The matter is remanded to the Commissioner for Workmen''s compensation, Mangalore. Opportunity shall be given to both the parties to let in evidence to consider whether the appellant had a valid driving licence or not and based on the same, the Commissioner is directed to dispose of the matter within six months from today.