K. Palaniswamy vs R. Marappan

A.S. Pachhapure, J.—Though these matters are posted for admission, with the consent of the learned counsel for the parties, they are taken up for final disposal.

While the insurer has preferred the appeals in MFA Nos. 31601/2009 and 31602/2009 challenging its liability and the quantum of compensation granted by the Commissioner for the injuries sustained by the 1st respondent in the said appeals, they have preferred other two appeals seeking enhancement. As all these appeals are arising out of the same incident and they are taken up together for consideration.

The facts relevant for the purpose of these appeals are as under:

The injured Sameer and K. Palaniswamy were employed by the owner of the borewell vehicle bearing registration No. TLS-3006, insured with National Insurance Company Limited. On 21.06.2007 when the said vehicle was in the land of one Biradar of Nandgeri village in Indi taluk, while the borewell pipes were being loaded, they slipped and both the injured sustained grievous injuries and fracture of femur. They were treated in the hospital. They suffered the disability and therefore, approached the Commissioner for grant of compensation.

Both the cases were clubbed and common evidence was permitted. The insurer has taken the defence that it has no liability to pay the compensation and the risk was not covered under the policy. It was also his contention that the compensation granted is highly exorbitant and arbitrary.

During the enquiry, the evidence was recorded and documents were admitted. The learned Commissioner heard the learned counsel for the parties and on appreciation of the material placed on record, assessed the disability at 30% in each injury cases and income at Rs. 4,000/- per month. Depending upon the age, having chosen the relevant factor, granted a sum of Rs. 1,59,386/- in WCA No. 87/2007 and Rs. 1,49,746/- in WCA No. 88/2007. He directed the insurer to indemnify the owner. Aggrieved by the liability and quantum of compensation, the insurer has filed two appeals in MFA Nos. 31601/2010 and 31602/2010 whereas, other two appeals were filed by the injured appellants, seeking enhancement.

Heard learned counsel for the parties.

The substantial questions of law that arise for my consideration are:

Whether the injured are entitled to the compensation from the insurer and whether the risk of the injured is covered under the policy?

Whether the compensation awarded needs any variation, due to the wrong application of principle to assess the disability?

The learned counsel for the insurer submits that under the policy, the risk of the injured is not covered. It is also his submission that the compensation awarded is on the higher side. The commissioner has wrongly assessed the disability at 30% and therefore, he seeks to modify the impugned judgment and award.

On the other hand, learned counsel for the injured seeks enhancement and submits that the insurer is liable to indemnify the employer.

The copy of the insurance policy has been produced and it reveals that the vehicle is borewell carrier and is a special type of vehicle and in fact no person could be carried in the said vehicle. But it is not the case of any of the parties, that the injured were being carried in the said borewell vehicle. The said borewell vehicle was in the land of a farmer on the date of the incident and the injured persons were employed by the owner of the aforesaid vehicle for the purpose of taking out and loading the pipes which are used for digging the borewell. At the time of loading the pipes in the said vehicle, the pipes fell and the injured sustained fractures of femur. Therefore, though the injured were the employees of the owner of the vehicle. So far as the insurers are concerned, they are the third parties. The policy of insurance which covers the risk of the third parties and a sum of Rs. 5,385/- was collected in this regard. The incident has occurred due to the use of borewell vehicle, which was owned by the employer of the injured and therefore, the insurer is liable to indemnify the employer/owner of the borewell vehicle. The insurer cannot escape from the liability as the risk is covered.

So far as the disability is concerned, the doctor who was examined has assessed the disability with the injured at 35% to 40%. The Commissioner has determined the disability at 30%. Generally it is 1/3rd of the disability of a particular limb, which is considered as the disability of the whole body. When the evidence of the doctor is insufficient, the general principle has to be adopted. I think it would be just and proper to assess the disability at 15% in each of the injured cases as both suffered the fracture of femur and disability assessed by the doctor is also same.

The compensation that has been awarded by the Commissioner is on the basis of the disability at 30% and if the disability is determined at 15% in each of injured persons. The injured are entitled to 50% of the compensation granted by the Commissioner as wages and the relevant factors are not in dispute. Thereby, the appellant injured in MFA No. 31845/2010 (WCA No. 87/2007) is entitled to a sum of Rs. 79,693/- whereas the appellant injured in MFA No. 31841/2010 is entitled to a sum of Rs. 74,873/-, i.e., exactly half of the compensation awarded by the Commissioner.

So far as the rate of interest on the said compensation awarded is concerned, the reliance could be placed in a decision reported in Saberabibi Yakubbhai Shaikh and Others Vs. National Insurance Co. Ltd. and Others, . The apex Court had an occasion to consider the rate of interest on the compensation payable under the Workmen Compensation. Act. Under the provisions of Section 4 of the Act, the interest payable is from the date when the amount fell due. The amount falls due from the date when the disability is suffered. Therefore, it is the date of the injury i.e., suffered by individual or in a case of death when the death occurred, the interest payable on the said amount would be due from the said date. The employer and insurer have not paid compensation. Therefore, I am of the opinion that the injured are entitled to the interest from the date of the incident. The Apex Court in the aforesaid judgment has held on the basis of the decision of the larger Bench of the Apex Court in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, . That the interest is payable from the date of the accident. For the aforesaid reasons, the substantial questions of law raised are answered in the affirmative.

The appeals are allowed in part.

In MFA No. 31841/2010, the appellant is entitled to a sum of Rs. 74,873/- with interest at 12% from the date of the incident i.e., 21.06.2007, till its deposit/payment.

In MFA No. 31845/2010, the appellant is entitled to a sum of Rs. 79,693/- with interest at 12% from the date of the incident i.e., 21.06.2007, till its deposit/payment.

The aforesaid appellants are not entitled to the interest for a period of 487 and 473 days, respectively for delay that occurred in filing these appeals.

The insurer is liable to pay the aforesaid compensation.

If the amount in deposit by the insurer is in excess, the same shall be refunded to the insurer after payment to the injured.