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The National Insurance Company, Hubli Vs. Anjaneya and Another - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberMFA No. 5217 of 2008 (WC)
Judge
AppellantThe National Insurance Company, Hubli
RespondentAnjaneya and Another
Excerpt:
.....fastening liability on them to compensate claimant hence, this appeal whether driver of tractor-trailor was having a driving licence and whether commissioner was justified in directing insurance company to pay compensation and to recover it from owner of tractor and trailor. court held insurance company had taken specific contention that driver of tractor-trailor was not holding valid and effective driving licence further, notice was also issued to owner as well as driver to produce driving licence and also application under order 14 rule 6 of cpc was filed calling upon owner as well as driver of tractor trailor to produce driving licence in spite of specific direction, neither owner nor driver of tractor-trailor produced driving licence hence, it is clear that driver..........on the date of accident, the driver of the tractor and trailer was not holding valid and effective driving licence to drive the tractor and trailer and hence, the order passed by the wcc directing the insurance company to compensate the claimant and recover the said amount from the owner of the tractor and trailer is contrary to law. 3. the facts of the case are as under: respondent no.1 herein filed a claim petition contending that he was working as coolie in the tractor and trailer bearing reg.no.ka-27/t4980 and t/4981 belonging to respondent no.2 herein. on 15.05.2006, as per the instructions of the owner of the vehicle, he along with other coolies, after unloading the fertilisers on the land of irappa kongannavar, while returning on attikatti-kachavi road, the driver of the tractor.....
Judgment:

(Prayer: This Appeal is filed under Section 30(1) of WC Act, 1923 against the Judgment and Award dated 20.03.2008 passed in WCA/NF/CR No.37/2006 on the file of the Commissioner for Workmen s Compensation at Haveri, awarding compensation of rs.1,58,329/- along with interest at 12% p.a.)

1. National Insurance Company Limited has filed this appeal challenging the judgment and order dated 20.03.2008 made in WCA/NF/CR No.37/2006 passed by the Labour Officer and Commissioner for Workmen s Compensation at Haveri (hereinafter referred to as the WCC for short) fastening the liability on them to compensate the claimant.

2. The main contention of the appellant-Insurance Company is that, as on the date of accident, the driver of the tractor and trailer was not holding valid and effective driving licence to drive the tractor and trailer and hence, the order passed by the WCC directing the Insurance Company to compensate the claimant and recover the said amount from the owner of the tractor and trailer is contrary to law.

3. The facts of the case are as under:

Respondent No.1 herein filed a claim petition contending that he was working as coolie in the tractor and trailer bearing Reg.No.KA-27/T4980 and T/4981 belonging to respondent No.2 herein. On 15.05.2006, as per the instructions of the owner of the vehicle, he along with other coolies, after unloading the fertilisers on the land of Irappa Kongannavar, while returning on Attikatti-Kachavi road, the driver of the tractor and trailor suddenly applied the brake, due to which, the claimant fell down and the wheel of the trailor ran over him and as a result, he sustained fracture of femur and injury to hip joint and other parts of the body. Immediately after the accident he took treatment initially at District Hospital Haveri, thereafter he was shifted to a private hospital. He was inpatient for a period of one month. The owner of the vehicle was paying him salary of Rs.200/- per day and batta of Rs.20/- per day. In view of the permanent disability suffered by him he could not work as a coolie which he was doing prior to the accident and sought for compensation from the owner as well as the insurer of the tractor and trailor.

4. In response to the notice issued by the WCC, though the owner of the vehicle entered appearance he did not participate in the proceedings. The insurer of the vehicle filed written statement denying the entire averments made in the claim petition and also contended that there is no master and servant relationship between the owner of the vehicle and the claimant. Further the driver of the tractor and trailor was not holding a valid and effective driving licence as on the date of the accident. It was also contended that the owner of the vehicle violated Section 3 read with Section 181 of the Motor Vehicles Act. Hence, insurance company is not liable to compensate the claimant.

5. On the basis of pleadings of parties, the WCC framed necessary issues.

6. The claimant in order to prove his case, got examined himself as P.W.1 and the doctor, who treated the claimant, was examined as P.W.2, and got marked the documents as Exs.P.1 to P8. On behalf of the insurance company, Sri Ashok Pai, Assistant Manager, was examined as R.W.1 and got marked the documents as Exs.R.1 to R.3.

7. The WCC, after appreciating the oral and documentary evidence let in by the parties and taking into consideration, the other relevant records held that the claimant was working as a coolie in the tractor-trailor and sustained injuries during the course and out of employment. Hence, the claimant is entitled for the compensation. With regard to the quantum of compensation is concerned, the WCC took the income of the claimant as Rs.2,600/- per month and taken 60% thereof. The doctor who examined the claimant assessed the disability to an extent of 45% in respect of left femur and left hip joint. As on the date of accident claimant was aged 16 years applying relevant factor of 228.54, awarded a sum of Rs.1,58,329/- with interest at 12% per annum. Since the tractor and trailor was covered by the insurance policy and was in force as on the date of accident, though the driver of the offending vehicle was not having valid and effective driving licence, the liability was fastened on the insurance company to compensate the claimant with liberty to recover the said amount from the owner of the vehicle.

8. Being aggrieved by the judgment and order passed by the WCC, the insurance company has filed this appeal mainly contending that the order passed by the WCC directing the insurance company to pay the compensation and recover it from the owner of the vehicle is contrary to law and sought for allowing the appeal.

9. Smt. Aruna R.Deshpande, advocate appearing for the appellant contended that as on the date of accident, the driver of the tractor-trailor was not at all holding driving licence to drive the tractor-trailor. One of the conditions of the policy is that the owner of the vehicle must entrust the vehicle to a person having valid and effective driving licence. In the instant case, the insurance company issued notice to the owner of the vehicle and also driver of the said tractor trailor calling upon them to produce the document. Further, an application was also filed under Order 14 Rule 6 of CPC calling upon the driver as well as the owner to produce the driving licence. In spite of the same, the driving licence was not produced and thereby the owner has violated Section 3 of the Motor Vehicles Act and also the conditions of the policy and therefore, sought for setting aside the judgment and order passed by the WCC.

10. On the other hand, Sri B.S.Sangati, advocate appearing for respondent No.1 contended that though the insurance company had taken a specific contention that driver of tractor and trailor was not having valid and effective driving licence, the RTO had not been examined to prove the same. Hence, he sought for dismissal of the appeal.

11. Sri N.P.Vivekmehta advocate appearing for respondent No.2 argued in support of the judgment and order and contended that the driver of the tractor trailor was having learner s licence, he was not disqualified from holding the licence. Hence, the order passed by the WCC is in accordance with law.

12. Having heard the learned advocates appearing for the parties, the only point that arises for consideration in this appeal is,

Whether the driver of the tractor-trailor was having a driving licence and whether the Commissioner was justified in directing the insurance company to pay compensation and to recover it from the owner of the tractor and trailor?

13. The record clearly discloses that the claimant was working as a coolie in the tractor-trailor belonging to respondent No.2. As per the instructions of the owner of the vehicle, after unloading fertilizers on the agricultural land of Irappa Kongannavar and while returning, the vehicle met with an accident due to rash and negligent driving of tractor-trailor. Though the owner of the vehicle was served with notice, he had not filed written statement to the claim petition. The insurance company in their written statement had taken a specific contention that the driver of the tractor-trailor was not at all holding driving licence to drive the tractor-trailor and hence the insurance company was not liable to compensate the claimant.

14. Section 3 of the Motor Vehicles Act contemplates that no person shall drive a motor vehicle in any public place unless he holds a effective driving licence issued to him authorising him to drive the vehicle. In the insurance policy issued by the insurance company, one of the conditions prescribed is that the owner of the vehicle must entrust the vehicle to a person having valid and effective driving licence. In the instant case, the insurance company had taken a specific contention that the driver of the tractor-trailor was not holding a valid and effective driving licence; further, notice was also issued to the owner as well as the driver to produce the driving licence and also an application under Order 14 Rule 6 of CPC was filed calling upon the owner as well as the driver of the tractor trailor to produce driving licence. In spite of specific direction, neither the owner nor the driver of the tractor-trailor produced the driving licence. Hence, it is clear that driver of the tractor-trailor was not at all holding driving licence to drive the tractor-trailor. The order passed by the WCC directing the insurance company to pay compensation and recover the same from the owner of the vehicle runs contrary to the intentment of the Act. As per Section 3 of the Motor Vehicles Act, no person shall drive a motor vehicle in any public place unless he holds a valid and effective driving licence to drive the said vehicle. Hence, the order passed by the WCC cannot be sustained.

15. With regard to the quantum of compensation awarded by the WCC is concerned, in the accident, the claimant has sustained fracture of left femur, he has undergone surgery and due to that there is restricted movement of left hips and other parts of the body. The claimant is an agricultural coolie. Due to the fracture of femur that he has sustained he is disabled to do the agricultural work. The doctor, who has treated the claimant has assessed the disability to an extent of 45 to 50% and the WCC considering the same has taken the loss of earning capacity to the extent of 45%. The WCC taking into consideration the minimum wages being paid to employees, took the income of the claimant as Rs.2,600/- per month and taking 60% thereof, taking the loss of earning capacity to the extent of 45% and applying relevant factor of 228.54, awarded a sum of Rs.1,58,329/- with interest at 12% per annum. The compensation awarded by the WCC is in accordance with law. Hence, I pass the following Order:

The appeal is allowed. The judgment and order passed by the WCC fastening the liability on the insurance company to compensate the claimant is set aside. The owner of the tractor-trailor has to compensate the claimant. It is open to the claimant to enforce the judgment and order passed by the WCC against the owner of the vehicle.

The amount in deposit be refunded to the insurance company.


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