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Judgment
B.S. Patil, J—These two appeals arise out of the judgment and award dated 23.07.2010 passed by the Commissioner for Workmen''s Compensation, Mysuru District, Mysuru, in No. WCA:NFC:CR/26/2009. Hence, they are clubbed, heard together and are disposed of by this common judgment.
M.F.A. No. 3216/2011 is filed by the Insurance Company questioning the liability and quantum of compensation awarded by the Commissioner. Whereas, M.F.A. No. 1224/2011 has been filed by the claimant seeking enhancement of compensation.
Facts, stated in nutshell, are that on 12.03.2009 at about 2.30 p.m. near J.S.S. Dental College, Mysuru Road, Mysuru, when the claimant was driving auto rickshaw bearing No. KA-09/7033, a KSRTC bus driven in a rash and negligent manner dashed against the auto rickshaw resulting in the claimant sustaining fracture of right tibia and fibula apart from other injuries. The claimant was shifted to K.R. Hospital, Mysuru. He was subjected to surgery, implants were inserted.
Contending that he was employed as a driver in the auto rickshaw belonging to the 1st respondent and that the accident arose out and during the course of employment resulting in physical disability, the claimant moved the Commissioner for Workmen''s Compensation, seeking compensation.
Claimant examined himself and the doctor who treated him. The wound certificate - Ex. P1, discharge certificate -Ex. P2, driving license - Ex. P3, disability certificate and also RC book were produced and marked in evidence apart from other documents.
The insurance company resisted the claim denying the occurrence of the accident, relationship of employer and employee and the nature and percentage of disability as asserted by the claimant.
On appreciation of evidence, both oral and documentary, the Commissioner has found that claimant was able to successfully establish the occurrence of the accident on 12.03.2009. The evidence of the claimant and the wound certificate produced clearly show that accident occurred when the speeding KSRTC bus dashed against the auto rickshaw because of which the claimant sustained grievous injuries. As regards percentage of disability, having regard to the evidence of the doctor, the Commissioner has quantified the loss of earning capacity at 45%. The monthly earnings of the injured have been taken at Rs. 3,500/-. Applying the relevant factor 166.29, the compensation is worked out as under:
"Rs.2,100x 166.29x45/100 = Rs. 1,57,144/-."
Learned Counsel for the appellant-Insurance Company very strongly contends that there is no material at all to show occurrence of the accident involving the vehicle in question. It is his submission that no complaint has been filed before the police either by the owner of the vehicle or by the injured claimant who was driving the auto rickshaw. He submits that wound certificate has been issued on 10.06.2009, wherein it was disclosed that injured was examined on 22.03.2009. If that was so, according to the learned Counsel, the injured could not have been admitted to the hospital on the date of accident, and therefore, the contents of the wound certificate cannot be believed. He also points out that 2nd respondent was the insured, whereas the 1st respondent is stated to be the owner of the auto rickshaw, therefore, the insurance company cannot be made liable to make good the liability of the 1st respondent under whom the claimant claimed to have been employed as driver of the auto rickshaw.
Counsel for the respondent-claimant submits that percentage of loss of earning capacity ought to have been taken at 60% as the doctor has assessed loss of earning capacity and on that ground, he seeks enhancement of compensation.
In the light of the respective contentions, I have examined the entire matter with reference to the evidence on record and the findings recorded by the Commissioner.
It is true no complaint has been registered against any person after the accident. Non-filing of complaint cannot be taken as equal to non-occurrence of the accident. Normally, complaints will be registered if an accident occurs. However, the facts and circumstances of this case disclose that the vehicle which dashed against the claimant driver of the auto rickshaw resulting in fracture of his right leg was not identified. Soon after the accident, he had been rushed to the Government hospital at Mysuru and has been admitted there. He has produced the admission card, wound certificate. Admission sheet issued by K.R. Hospital which discloses that he was admitted to the hospital on 12.03.2009 at 6.33 p.m. The nature of injuries suffered have been noted there. The wound certificate issued by the hospital duly signed by the Chief Medical Officer of the hospital discloses that in a road traffic accident near J.S.S. Dental College, Mysuru, the accident occurred on 12.03.2009 while the claimant as driving an auto rickshaw. It is also noticed that a speeding KSRTC bus had hit the auto rickshaw from behind causing grievous injuries. The wound certificate does not show that he was admitted to the hospital on 22.03.2009 as contended by the Counsel for the appellant. The certificate clarifies that on 22.03.2009, the person who issued the certificate had examined the patient. If the wound certificate and the admission card which are produced and marked are examined together, it is clear that he was admitted on the very day of the accident for treatment regarding fractural injuries suffered in the road traffic accident. Therefore, merely because complaint was not registered, it cannot be said that the accident did not occur.
As regards the relationship of employer and employee, the claimant has stated in his deposition that he was engaged by the 2nd respondent - owner of the auto rickshaw, the 3rd respondent was the insured. He has produced the RC book to show that earlier the auto rickshaw was owned by 3rd respondent and he transferred the same in favour of the 2nd respondent. It is in this background, claimant has made the 3rd respondent also as party respondent to the claim petition because he was the previous owner.
As is clear from Section 157 of the Motor Vehicles Act governing transfer of certificate of insurance, on the ownership of the motor vehicle being transferred, the policy of insurance relating to the said vehicle, the certificate of insurance shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. So far as injured claimant is concerned, Section 157(1) will come to his rescue and the transferee who was the owner of the vehicle on the date of the accident would be deemed to be the insured for the purpose of Section 157. The question whether the transferee had applied within 14 days from the date of transfer in the prescribed form to the insurer for making necessary changes in the certificate of insurance and the policy, would be of not much consequence so far as the claimant is concerned. There is also no material produced before the Court to show that no such request had been made by the transferee. Section 157(2) does not state that in case the transferee fails to make such an application within the prescribed period, he would not be entitled for the benefit of the policy of insurance and the certificate of insurance. The consequence of not making such an application are not spelt out in Section 157(2). In such circumstances, for the purpose of the benefit to be given to the claimant, it has to be held that even if the transferee had failed to make such an application, it will not preclude the claimant from requesting to fasten the liability on the owner of the vehicle and its insurer jointly and severally.
As regards the quantum of compensation, the Commissioner has taken into consideration the evidence of the doctor who has stated in his deposition that both tibia and fibula bones of right leg had been fractured apart from the fracture of medial medialis as was evident from the x-rays taken; there was permanent disability to an extent of 45%; deformity in the right leg was found and it was found reduced by 2 Cms. He has been rendered incapable to carry on the avocation as a driver as the movement of the right leg had been considerably restricted.
The above evidence of the doctor makes it very clear that the injury and the disability left behind has rendered the claimant incapable to pursue his avocation as driver. In this background, the Commissioner has rightly taken the percentage of loss of earning capacity at 45% and has worked out the total compensation at Rs. 1,57,144/-. It cannot be said that the quantum of compensation awarded is illegal.
The contention of the learned Counsel for the claimant that the percentage of loss of earning capacity ought to have been taken at 60% cannot be accepted. The doctor has assessed the disability and loss of earning capacity. As rightly contended by the learned Counsel for the respondent, there is no material to show that claimant did not get the driving license renewed. There is also nothing on record to show that claimant has been rendered incapable of pursuing other avocation involving manual labour. In such circumstances, question of interfering with the quantum of compensation awarded by the Commissioner would not arise. Therefore, the compensation worked out is just and reasonable and is in accordance with law.
Hence, I do not find any merit in these appeals. They are, therefore, dismissed. 50% of the amount in deposit shall be permitted to be withdrawn by the claimant and the remaining 50% shall be invested in fixed deposit in any nationalized bank for a term of three years.