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Judgment
The present Civil Miscellaneous Appeal has been directed against order dated 21.05.2012 in W.C.No.25 of 2010 NF on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Mahabubnagar (hereinafter referred to as ‘the Commissioner’). The said claim application was filed by the applicant therein seeking compensation for injuries sustained by him in an accident that occurred on 20.01.2007 and the same was partly allowed by the Commissioner granting compensation of Rs.84,068/-. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed at the instance of opposite party No.2 before the Commissioner i.e., the insurance company.
The appellant herein is opposite party No.2, respondent No.1 herein is applicant and respondent No.2 herein is opposite party No.1 before the Commissioner. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
The brief facts of the case of the applicant are that he was working as cleaner in lorry bearing No.AHT 8238 under opposite party No.1. While so, on 20.01.2007, the applicant along with the driver of the said lorry went to Tandor loaded with Shabad stones to unload the same at Metlakunta village and when they reached near Thunkimetla check post, the driver of the said lorry stopped the vehicle and instructed the applicant, who is cleaner to check air in the tyres of the lorry. While, the applicant was checking the tyres, all of a sudden, the driver of the said lorry moved the lorry in rash and negligent manner without observing the applicant, due to which, the applicant fell down on the road and his right hand came under the rear tyre of the lorry and ran over the applicant. Due to the said accident, the applicant sustained fracture and crush injures to his right hand and other parts of his body. Immediately, the applicant went to Bomraspet Police Station lodged a complaint and then went to Government Civil Hospital, Kodangal and got admitted for treatment. Subsequently, he was shifted to NIMS Hospital, Hyderabad, for better treatment. The applicant underwent operation in the said hospital where his two fingers of right hand were amputated.
It is further the case of the applicant that he was being paid an amount of Rs.4,000/- per month towards wages and Rs.100/- per day towards batha and he was aged about 32 years as on the date of the accident. The accident occurred during the course and out of his employment under opposite party No.1. The lorry was owned by opposite party No.1 and insured with opposite party No.2 under valid and effective insurance policy. Hence, he filed the present claim application against both the opposite parties seeking compensation of Rs.3,00,000/-.
Opposite party No.1 was set ex parte. Opposite party No.2 filed its counter denying the averments of the claim application such as manner of the accident, employment, age, wages and also treatment underwent by the applicant. It is also denied that the driver of the lorry was holding valid driving license as on the date of the accident. Further, as the compensation claimed was excess and exorbitant, opposite party No.2 prayed to dismiss the claim application.
In support of his case, the applicant got examined himself as A.W.1 and got marked Exs.A-1 to A-9. Opposite party No.2 got examined R.W.1 and Exs.B-1 to B-4 were got marked.
On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
“1. Whether the applicant Neerati Narsimhulu, S/o. N. Bheemaah, met with an accident on 20.01.2007 during the course of his employment as cleaner on the insured lorry bearing No.AHT 8238 and sustained injuries in the course of his employment with 1st opposite party?
If yes, what is the percentage of physical disability and consequent loss of earning capacity suffered by the applicant?
Who are liable to pay compensation to the applicant? And
What is the amount of compensation entitled by the applicant?”
After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.84,068/-towards compensation to the applicant. Aggrieved by the same, the present appeal is filed by opposite party No.2.
Heard both sides.
The main contention of the learned counsel for the appellant/opposite party No.2 is that the Commissioner erred in granting compensation without there being establishment of employee and employer relationship. Further, there was no evidence placed on record by the applicant to prove that he was working as cleaner on the lorry owned by opposite party No.1. It is also contended that no additional premium was paid by opposite party No.1 to cover the risk of cleaner. Hence, prayed to allow the appeal and set aside the impugned order.
Per contra, the learned counsel for respondent No.1/applicant contended that the Commissioner after considering all the aspects has awarded reasonable compensation and interference of this Court is unnecessary. Hence, prayed to dismiss the appeal.
Now, the point for determination is as follows:
“Whether the applicant is entitled for the compensation as granted by the Commissioner?”
Point:-
This Court has perused the entire evidence and documents placed on record by both the parties. The applicant got examined himself as A.W.1 and reiterated the contents of the claim application and deposed about the injuries sustained by him. Apart from oral evidence, he got marked Exs.A-1 to A-9. Ex.A-1 copy of First Information Report shows that the case was registered with regard to the accident and investigation was taken up and charge sheet was laid under Ex.A-3. The said charge sheet discloses that the injured was working as cleaner under opposite party No.1 and during the course and out of his employment, the accident occurred and he sustained injuries. Ex.A-2 wound certificate shows that the injuries sustained by the applicant in the accident. Further, Ex.A-6 shows the treatment particulars of the applicant in NIMS Hospital, Ex.A-7 shows the receipt of payment of Rs.1,416/- and Ex.A-8 is X-ray films, which are four in number along with radiologist report. All these documents clearly establish the treatment underwent by the applicant in the hospitals. Further, Ex.A-5 copy of insurance policy shows that policy was in force as on the date of the accident. Though, A.W.1 was cross-examined, nothing contrary was elicited in the same.
On behalf of opposite party No.2, R.W.1 was examined, who deposed that lorry bearing No.AHT 8239 was owned by opposite party No.1 and the same was insured with opposite party No.2 under valid insurance policy which was in force as on the date of the accident. However, he stated that there was some delay in filing FIR, the accident occurred on 20.01.2007 and complaint was given to police on 02.03.2007. Therefore, there is no nexus between the occurrence of the accident and registering of FIR. R.W.1 got marked, Ex.B-1 copy of insurance policy, Ex.B-2 copy of legal notice issued to owner of crime vehicle, Ex.B-3 is un-served registered cover of opposite party No.1 and Ex.B-4 is copy of letter addressed to RTO, Mahabubnagar regarding permit. In the cross-examination, R.W.1 deposed that as per directions of the concerned Court FIR was registered and investigation was taken up by police and then charge sheet was laid with regard to the accident. He also deposed that premium for cleaner is not paid by opposite party No.1. He denied that premium was received for driver and cleaner and also denied that it is mandatory covering the risk as per the Workmen’s Compensation Act, 1923 and it is an Act policy.
It is pertinent to state that the contention of the learned counsel for the appellant/opposite party No.2 is that there is delay of 40 days in registering the FIR and lodging complaint to police. It is admitted fact that lodging of FIR cannot be a ground to dismiss the claim application of the applicant. Further, it is not expected from the person, who met with an accident, and his kith and kin to immediately, lodge FIR and register a case as the family members will be engaged in providing treatment to the injured in the hospital. Hence, the delay of FIR cannot be ground to dismiss the claim petition. However, the case set up by the applicant clearly shows that immediately after the accident, he approached police to register case, but the police did not register the case. Furthermore, even as per the evidence of R.W.1 FIR has been registered by police upon receipt of directions from the concerned Court. Under these circumstances, the contention of the learned counsel for the appellant/opposite party No.2 is unsustainable.
It is also pertinent to state that the insurance policy under Ex.A-5/B-1 was in force as on the date of the accident. However, the main dispute raised by the learned counsel for the appellant/opposite party No.2 is that there is no additional premium paid to cover the risk of applicant, who is cleaner. In this regard, it is apt to refer to the decision of the Hon’ble Apex Court in the case of Oriental Insurance Company Limited v. Meena Variyal (2007) 5 SCC 428, wherein it was held as under:
“Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen’s Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods.”
Admittedly, the vehicle involved in the accident is a lorry, which is goods carrying vehicle. In view of the above discussion and considering the principle laid down in the above said decision and since the deceased was not a gratuitous passenger and as he was an employee rendering his services to opposite party No.1 under employee-employer relationship, the contention of the learned counsel for the appellant/opposite party No.2 that the policy does not cover the risk of the injured being cleaner, is unsustainable. Therefore, opposite party No.2 is liable to indemnify the opposite party No.1 i.e., owner of the vehicle.
Even otherwise, the contention of the opposite party No.2 before this Court is certainly based on question of fact. The Hon’ble Supreme Court, in the case of Golla Rajanna v. The Divisional Manager 2017 (2) ALD 14 (SC) held that as per the scheme of the Workmen’s Compensation Act, 1923, the Commissioner is the last authority on facts. In view of the principle laid down in the above said case, since the contentions raised by the learned counsel for the appellant/opposite party No. 2 are based on questions of fact, it is evident that scope of appeal under Section 30 of the Workmen’s Compensation Act, 1923, is very limited, thereby the ambit of interfering with the order passed by the Commissioner is also limited until and unless the order passed by the Commissioner is perverse or when there is patent irregularity or illegality committed by the Commissioner while passing the impugned order. Moreover, when two interpretations are possible, the interpretation, which is favourable to the applicant, shall be taken into consideration, since the Workmen’s Compensation Act, 1923, is a beneficial legislation enacted to protect the interest of workmen.
In view of the above discussion, this Court is of the considered opinion that the Commissioner after considering all the aspects has granted just and reasonable compensation and interference of this Court is unwarranted. The appeal is devoid of merits and the same is liable to be dismissed.
In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated 21.05.2012 in W.C.No.25 of 2010 NF on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Mahabubnagar. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.