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Judgment
The Hon''ble Mr. justice A.N. Venugopala Gowda
2nd Respondent was the owner of a maxicab bearing registration No. KA-07-3266. He had employed the 1st Respondent as a driver to drive the said vehicle. Appellant had issued insurance policy to the said vehicle for the period 06.10,2004 to 05.10.2005. On 02.10.2005, when the 1st Respondent was driving the said vehicle, an accident occurred and one Ramegowda sustained injuries. The 1st Respondent''s attempt to avoid the accident having failed, the vehicle dashed to the pedestrian Ramegowda and the 1st Respondent having jumped out of the vehicle, sustained injury, which arose out of and during the course of employment. Jurisdictional police registered a case. Injured Ramegowda filed MVC 860/2009 against the Respondents and the Appellant in the MACT at Mysore. The said petition was allowed and the Appellant was directed to deposit the compensation amount of Rs. 45,000/- with interest.
The 1st Respondent filed a petition u/s 10 of Workmen''s Compensation Act, 1923 (for short the Act''), against the 2nd Respondent and the Appellant, claiming compensation for the permanent disability suffered and the resultant loss of earning capacity on account of the injuries sustained in the said accident. The 2nd Respondent did not appear and was placed expert by the Commissioner for Workmen''s Compensation (''CWC'' for short). However, the Appellant having entered appearance through its learned advocate, filed statement of objections dated 28.02.2008 and opposed the claim petition.
Based on the pleadings, issues were raised. The 1st Respondent/claimant deposed and Exs.P-1 to P-7 were marked. Dr. Srinivasa Murthy, an orthopedic surgeon, was examined as P.W. 2 and Exs. P-8 and P-9 were marked. The Appellant, which was the 2nd Respondent in the claim petition, did not adduce any evidence. However the insurance policy was marked as Ex.R-1. The claim petition was allowed by the CWC and the compensation payable was assessed at Rs. 1,46,812/-, which was directed to be deposited by the Appellant within 30 days and in case of default, to pay interest at 12% from the date of default. Questioning the said order and award, the insurance company has filed this appeal.
Sri B.S. Umesh, learned advocate appearing for the Appellant, contended that, the 1st Respondent/workman having suffered non-fatal injuries for his own negligence, cannot claim compensation. Reliance was placed on the decision in Louis Martis v. Louis Korrea and Anr. ILR 2010 KAR 2600. Learned Counsel alternatively contended that, the compensation awarded is excessive and being against the evidence on record.
The Respondents though have been served with the notice of the appeal, have remained unrepresented.
I have perused the record. The questions for determination are:
Whether the petition filed by the 1st Respondent/workman is maintainable?
Whether the compensation assessed and directed to be deposited is against the evidence on record?
From the materials on record, it is clear that, the vehicle which belonged to the 2nd Respondent, driven by the 1st Respondent, on 02.10.2005, met with an accident and that the policy of insurance issued by the Appellant as on the date of accident was valid. The claim made in MVC 860/2009 on the file of MACT, Mysore, arose out of accident in question and the claim petition, which was contested by the 2nd Respondent and the Appellant herein, was allowed on 28.01.2010. Hence, the occurrence of the accident involving the vehicle, which was driven by the 1st Respondent/claimant on 02.10,2005 cannot be disputed.
Ex.P-6 is the wound certificate. P.W. 2 having examined the claimant has stated that, the claimant has sustained fracture of radius and ulna of right arm and tibia and fibula of left leg. P.W. 2 treated P.W. 1 on more than 6 occasions and was subjected to clinical examination on 24,03.2008. P.W. 2 issued the disability certificate - Ex. P-9 and has assessed the percentage of disability at 28.7%. Thus, injury was caused to the 1st Respondent/workman by accident arising out of and the course of his employment and the employer as well as insurer are liable to pay compensation.
The proviso u/s 3(1)(b) of the Act has no application to the case on hand, since the employee was not under the influence of drink or drugs. There is no willful disobedience by the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employee. The injury sustained is not out of own negligence of the claimant. The decision in the case of Louis Martis (supra) was a case wherein the Appellant, who was a driver of the vehicle involved in the accident, had driven the vehicle in a rash and negligent manner, was charge sheeted by the police for causing the accident and the accident having taken place on account of employee''s own negligence, in view of which, it was held that, the workman cannot claim compensation since the injury was caused on account of his own negligence. The fact situation herein is different There is no evidence showing that, the accident occurred on account of own negligence of the 1st Respondent/claimant. The workman though tried to avoid the accident, having failed, the accident occurred and he also sustained injuries noticed supra. In the circumstances, the accident being not on account of own negligence of the 1st Respondent/claimant, the claim petition filed to award compensation for the permanent disability suffered resulting in loss of earning capacity is maintainable.
The CWC by making reference to the evidence of P. Ws. 1 and 2 and the medical records, has held that, there is disability to an extent of 28%. The wages was reckoned at Rs. 4,000/-, having not been disputed by the employer For a driver, the wages reckoned at Rs. 4,000/- p.m. cannot be termed as excessive. By taking notice of the age of the claimant, relevant factor has been applied and the compensation assessed. Keeping in view the avocation, nature of injuries sustained, evidence of P.W. 2, the compensation assessed and ordered to be deposited by the Appellant is not excessive and is not against the evidence on record. The CWC has correctly appreciated the evidence and the assessment of compensation is not arbitrary.
In the result, the appeal being devoid of merit is dismissed.
The amount in deposit be transferred to the CWC for making payment to the claimant.
Parties to bear their respective costs.