Oriental Insurance Company Limited vs K. Kotresh

Anand Byrareddy, J.—Heard the learned counsel for the appellant.

The appellant is the Insurance Company seeking to question the award in favour of respondent No. 1, who was said to be engaged as a driver in a lorry that had met with an accident resulting in injuries to respondent No. 1. On a claim for compensation before the Commissioner for Workmen''s Compensation, the claim was resisted by the appellant on the ground that there was no relationship of employer and employee as between the owner of the vehicle and the respondent No. 1. It was specifically contended that the liability of the Insurance Company should not exceed the provisions of Section 4 of the Workmen''s Compensation Act, 1923 (hereinafter referred to as ''the W.C. Act'', for brevity) and that no interest was payable on such compensation. The claim having been allowed in part directing the Insurance Company to pay compensation of Rs. 1,31,027/- with interest thereon, the present appeal is filed on the following substantial questions of law-

That the learned Workmen Compensation Commissioner-cum-Labour Officer taking all the material facts into consideration ought to have dismissed the claim petition with exemplary costs.

That the Administrative Officer of the 2nd respondent (R.W.1) has admitted that the vehicle in question was insured, but no premium was paid for driver and cleaner and as such the respondent No. 2/appellant is not at all liable for the payment of the compensation, as per the terms of the policy, which supports the evidence of R.W.1. The learned Workmen''s Compensation Commissioner-cum-Labour Officer, has lost sight of this fact while granting compensation to the workman. Hence, the impugned award is liable to be set aside.

The learned counsel for the appellant was heard at length. Insofar as the relevant substantial questions of law are concerned, the contention that though the vehicle in question was insured, there was no additional premium paid to cover the risk of driver and cleaner and as such appellant denied its liability to pay compensation. This, according to the appellant has been overlooked by the Commissioner for Workmen''s Compensation.

However, it is noticed that though the Commissioner has overlooked this contention, the fact remains that by operation of law, whereby, the risk in respect of a driver is statutorily covered under Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as ''the M.V. Act'', for brevity), the contention that no additional premium was paid to cover the risk of a driver is not sustainable.

Insofar as the further contention that the wound certificate and the disability certificate issued were false and fabricated especially having regard to the fact that the Medical Practitioner, who had issued those certificates was generally known to issue inflated certificates, which were not true to the state of the health or physical condition of given workmen, going by the past experience of the appellant, is a contention that also cannot be accepted. If the certificates so issued were doubtful in the opinion of the appellant, there ought to have been second medical opinion obtained and in the absence of any adverse findings against the said Medical Practitioner in the past, mere allegations will not be countenanced, and therefore, the Commissioner for Workmen''s Compensation having proceeded on the basis of those certificates cannot also be faulted.

Insofar as the contention that the compensation of loss of earning capacity, unless adjudicated the payment of compensation on the basis of a rough estimate cannot be considered, is also a contention which cannot be accepted for the reason that though the schedule to the Workmen''s Compensation Act does provide the particular minimum loss of earning capacity that could be attributed on the particular kinds of injuries or loss of limbs in the absence of any such guidelines insofar as the non-scheduled injuries are concerned, the only basis would be the disability certificate issued by the Medical Practitioner, which would be the basis for the Commissioner to assess the loss of earning capacity. The loss of earning capacity being held to be consistent with the percentage of disability cannot be said to be unreasonable, for this is the measure that is adopted routinely in claims for compensation under the Karnataka Motor Vehicles Act, 1988, and that is a sufficient guideline for the Commissioner for Workmen''s Compensation in respect of non-scheduled injuries to make an assessment. Since the assessment is not exorbitant, there cannot be said to be any illegality in the same.

Accordingly, the appeal would fail on all the contentions that are raised as substantial questions of law though in effect they are mere contentions addressing findings of fact, and therefore, the appeal fails and is dismissed.

The amount in deposit be released in favour of the claimant.