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Judgment
S.N. Satyanapayana, J.—The 2nd Respondent insurance company in CR. No. 218/2007 on the file of Commissioner for Workmen''s Compensation, Chitradurga has come up in this appeal challenging liability as well as quantum of compensation awarded in the said proceedings by order dated 19.3.2009.
Brief facts leading to this appeal are as under:
The case of claimant before the commissioner is that he was working as driver of Autorickshaw bearing No. KA-16/9536 belonging to 1st Respondent and insured with 2nd Respondent; insurance company. On 4.7.2007 while he was driving said Autorickshaw in the course of his employment, said Autorickshaw went out of his control and turtled resulting in injuries to claimant to his L1 and L2 vertebra of spinal cord in addition to that, he also suffered other injuries. Hence, he filed claim petition seeking compensation for the aforesaid injuries. In the said proceedings, on appreciation of oral and documentary evidence available on record, Commissioner proceeded to partially allow the claim petition and awarded compensation to claimant in a sum of Rs. 1,79,399/- payable with interest, at 12% p.a., from 30th date, of order till date of deposit. 2nd Respondent insurance company being aggrieved by the same has come up in this appeal.
On going through the grounds of appeal the following substantial questions of law arise for consideration in this appeal;
i) Whether Appellant substantiates that finding of Commissioner regarding relationship of employer and employee between 1st Respondent and claimant is not justifiable?
2) Whether there is proper appreciation of evidence available on record by Commissioner?
Heard the Counsel for Appellant arid contesting Respondent. Perused the order impugned and oral and documentary evidence available on record. On reappreciation of the same this Court answer 1st substantial question of law in affirmative and 2nd substantial question of law in negative for the following;
REASONS
In this proceedings the fact that 1st Respondent is owner of Autorickshaw bearing No. KA-16/9536 and that said Autorickshaw is insured with 2nd Respondent insurance company, is not in dispute. However, the fact that claimant before Commissioner was working as driver under 1st Respondent, who is none other than his own brother, though disputed is not established by 2nd Respondent insurance company. Merely because claimant and 18th Respondent are brothers, it is not necessary that 1st Respondent should not employ his own brother as driver in Autorickshaw belonging to him. In this behalf, claimant has stated on oath that he has been working as drier under 1st Respondent in the aforesaid Autorickshaw and same is not denied or said relationship is not demonstrated to be false by insurance company adducing independent evidence. Further, the fact that father engaging services of son as driver or the brother engaging his own brother as driver cannot be disputed as decided by this Court in the matter of United India Insurance Co. Limited Vs. Prakash Shankar Gurav and Another, , wherein it is held as under;
It is to be noted that a father engaging his son as an employee in a vehicle owned by the father is not prohibited in law nor it can be said that such a situation is not normally possible. Just as in any ether avocation, it is possible for a father to engage his own son as employee. If this proposition is accepted, the doubt cast on the documents filed by the claimant in support of his contention do not take on much significance. The accident is not denied. Though the injuries said to have been suffered by the claimant are disputed by the Appellant on the ground that they are not supported by any certificate issued by the competent authorities. It is to be noticed that however the claimant has furnished a certificate from a private doctor as to the injuries suffered by him. The appreciation of the material recorded by the Commissioner in a summary proceedings which is contemplated under the Act could not be tested on the touchstone of degree of proof required in more formal proceedings requiring an in depth examination of the details sought to be advanced in order to evidence a fraudulent claim.
Now coming to 2nd substantial question of law, the evidence available on record clearly discloses that there is admission on the part of claimant to magnify the injury, if any, suffered by him in the aforesaid accident. Though Ex.P6, wound certificate states that claimant has suffered LI and 12 compression fracture of vertebra, which ailment requires admission of claimant into hospital and putting him compulsorily on traction for a minimum period to see that, said compression injury is reduced is not seen in the instant case. As could be seen from records, though claimant is said to have suffered serous injuries, he is treated as an outpatient. It is also seen that finding of Doctor who issued wound certificate on 14.8.2007 is based on an x-ray said to have taken on 4.7.2007 with x-ray No. 1550 taken in Chigateri Hospital, Davanagere. The said x-ray is not produced either before Commissioner or in this proceedings by claimant. On the contrary, a copy of an x-ray is produced without date and number. The said x-ray does not refer to whether it belong to a male or a female or an elderly person, aged person or that of a minor. Except that it is x-ray of spinal cord, said x-ray does not refer to anything else. Incidentally, said x-ray is also not accompanied by Radiologist''s report, which would substantiate to whom said x-ray belongs to, what is the nature of injury said person has suffered, what would be the extent of disability said injury would cause to injured.
Further, the Doctor who has given evidence in support of claimant viz., Dr. Sudarshan is not the Doctor who treated claimant. The said doctor is a person who has given disability certificate as per Ex.P8, which is issued on 14.9.2008. The said certificate is issued on a letter head of Government of Karnataka by the said Doctor having his own private clinic by name ''Sriranga Clinic'' at Chitradurga. It is surprising how said Doctor could be in possession of a Government stationery is another thing which needs to be explained by him. The said certificate also does not through any light on the nature of injury suffered by claimant and kind of treatment that was provided to him and length of treatment which he has undergone, whether it is in any Government Hospital or private hospital or under this Doctor is not seen The said Doctor also does not safe in the certificate since how long he has treated the claimant prior to issue of certificate dated 14.9.2008. Incidentally, said Doctor has not taken any x-ray. When that being the case how there is an x-ray which has come into existence, under whose instance it was taken, which is marked as Ex.P7 is not forthcoming from the evidence. In the said document there is no number of said x-ray and it is seen on the cover of said x-ray there is reference to Dr. R. Sudarshan who has issued Ex.P3 and said cover bears date as 13.9.2008 i.e., one day prior to Dr. Sudarshan examining claimant and issuing disability certificate. Incidentally, in the said certificate there is no reference to this x-ray.
The entire documents available on record give raise to suspicion regarding the genuineness of these documents and also genuineness of claim that is made by claimant before Commissioner. Incidentally, when all these documents were available on record, surprisingly, the discrepancies in ail these documents has not been looked into or noticed by Commissioner. He blindly proceeded to accept the same as genuine documents and proceeded to accept the observation of PW.2 in Ex.P8 so far as disability said to have suffered by claimant. Incidentally, in Ex.P8 there is a column at. 6(b) which refers to 3 distinct, heads under which disability is required to be assessed by said Doctor it, extent, of disability, permanent disability and less of earning capacity. For all these three heads said Doctor, PW.2 has stated 38-40% both in words and figures without, giving reason as to how such an assessment is made by him regarding loss of earning capacity of claimant.
Under the circumstances, this Court feel that there is absolutely no justification to accept any of the evidence available on record in the form of oral and documentary evidence to substantiate the extent of injury/disability and loss of earning capacity the claimant is said to have suffered in the accident. However, the fact remains that accident being proved through police documents confirm claimant has suffered certain injuries. Therefore, the Court with the a vailable material on record proceed to hold that claimant if at all has suffered any injuries that would not have resulted in loss of earning capacity to him to an extent of more than 5%. In that view of the matter, if compensation payable to claimant is reassessed, claimant would be entitled to compensation in a sum of Rs. 25,629/- payable with interest at 12% from 30th date of order till date of deposit of entire amount.
Accordingly, appeal is allowed in part. The judgment dated 19.3.2009 in CR. No. 218/2007 is modified. The compensation payable is reduced from Rs. 1,79.399/- to Rs. 25,629/-. Out of the amount in deposit, the registry is directed to release a sum of Rs. 25,629/- along with interest in favour of claimant and balance amount be released in favour of Appellant/insurance company.