UNITED INDIA INSURANCE CO. LTD. v. PURUSHOTHAMA A. GONDA

(BY SRI NAGARAJA HEGDE, ADVOCATE) ...CROSS OBJECTOR AND:

1. SRI THIMMAPPA MANJU GONDA, S/O MANJU GONDA, AGED MAJOR, R/O MAVINAKURVE POST, BHATKAL TALUK, NORTH KARNATAKA DISTRICT.

2. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE: JEWEL PLAZA, MARUTHI VEETHIKA, UDUPI. REP BY ITS BRANCH MANAGER. (BY SRI O MAHESH, ADVOCATE FOR R-2; R-1 SERVED & UNREPRESENTED) ...RESPONDENTS THIS MFA CROB. IN MFA 7680/2016 IS FILED U/O.41 RULE 22 OF CPC, R/W 30(1) OF EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 19.08.2016 PASSED IN ECA NO.36/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, PARTLY ALLOWING THE - 3 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THE APPEAL AND CROSS OBJECTION, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT Heard learned counsel appearing for both the sides.

2. Being aggrieved by the judgment and award, in ECA No. 36/2014 by learned Senior Civil Judge and Commissioner under the EC Act, Kundapura dated

19.08.2016, the petitioner is before this Court in appeal in MFA Crob.32/2020 and respondent No. 2 Insurance Company therein is before this Court in MFA 7680/2016.

3. The factual matrix of the case is that on

13.05.2012 at about 11.30 p.m., the petitioner was driving the Auto Rickshaw bearing number KA.47.4285 the employment of respondent No.1 with passengers. A KSRTC bus bearing No. KA.31.F.902 came in rash and negligent manner and dashed to the Auto - 4 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR Rickshaw resulting in injuries to the petitioner. The petitioner was shifted to Government Hospital and thereafter to Chinmayi Hospital, Kundapura, wherein he took treatment from the date of the accident till

25.05.2011. He was diagnosed of fracture of left clavicle with crepitus, swollen right elbow with fracture of the radial head and abrasion over the zygomatic arch. The petitioner contended that he is entitled for compensation from the employer and the insurer of the Auto Rickshaw and he has suffered a disability on account of the injuries sustained by him.

4. On service of notice, though respondent Nos. 1 and 2 appeared before the learned Commissioner, respondent No.2 alone filed the written statement. It denied the relationship of employee and employer between the petitioner and respondent No.1 and called upon the petitioner to prove the contentions raised by him. It was alleged that there was no nexus between the alleged vehicle and the injuries sustained by the petitioner - 5 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR they were not caused during course of employment. It was contented that the accident was due to the negligence of the bus driver. Inter alia, respondent No. 2 admitted that the policy of insurance was in force, but it was subject to terms and conditions of the policy and there being violation of the terms and conditions of the policy, its liability has to be absolved.

5. The learned Commissioner framed following issues.

1. Whether the petitioner proves that he was an employee under Workmen's Compensation Act?

2. Whether the petitioner proves that petitioner sustained injuries during the course of employment under 1st respondent as a driver in Auto Rickshaw bearing Reg.No.KA-47-4285 alleged accident?

3. Whether the petitioner proves that how much salary he is getting per month from respondent No.1 and what is the age of the petitioner on the date of the accident? - 6 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR

4. Whether the petitioner proves that he had suffered future earning capacity due to the accidental injuries?

5. Whether the petitioner is entitled for compensation as prayed?

6. What Order or Award?

6. Petitioner was examined as PW1 and eye witness was examined as PW2 and Exhibit P1 to 12 were marked. Respondents examined two witnesses as RW1 and RW2 and Exhibit R1 and R2 were marked.

7. After hearing the arguments, the learned Commissioner held that the petitioner has sustained the disability of 15% and therefore, calculated compensation of Rs.1,62,990. But he did not award any compensation in respect of the medical expenses though it was stated to be Rs.6,161/-. The learned Commissioner fastened the liability upon the Insurance Company to pay the compensation.

8. Being aggrieved, the Insurance Company is before this Court in MFA No. 7680/2016 and the petitioner is - 7 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR before this Court as a cross objector in MFA CROB No. 32/2020.

9. After hearing the contentions of both sides, appeal is admitted to consider the following substantial questions of law:

1. Whether the learned Commissioner is justified in fastening the liability upon the Insurance Company, despite the petitioner was not having a licence to drive a commercial passenger vehicle?

2. Whether, learned Commissioner erred assessing the quantum of the compensation amount based on the functional disability?

10. Learned counsel Sri. O Mahesh appearing for the Insurance Company would submit that: (a) The petitioner was driving the Auto Rickshaw which is a commercial passenger vehicle and therefore, he should have possessed appropriate licence to drive the same. There being no such driving licence to drive a - 8 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR commercial passenger vehicle, the terms and conditions of the policy are violated. (b) He submitted that the relationship of employer and employee has not been established by the petitioner by any cogent evidence despite he says that he has documentary evidence regarding the same. Therefore, the impugned judgment, which notices that the respondent No. 2 had not summoned respondent No. 1 to the witness box to prove that there was no such relationship is not sustainable since the burden is basically upon the petitioner. (c) He submits that there is no such discernible disability which affects the earning capacity of the petitioner and therefore, learned Commissioner assessing functional disability at 15% is not sustainable.

11. Per contra, learned counsel appearing for the petitioner/Cross objector would submit that the judgment - 9 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited1 later reiterated in the case of Bajaj Alliance General Insurance Company Limited Vs. Rambha Devi and others2, categorically lay down that there is no need for any Driving licence of the character of the commercial passenger vehicle if the unladen weight of the vehicle is less than 7500 kgs. He further submits that the learned Commissioner has relied upon the testimony of PW2 to assess the functional disability and held the functional disability at 15% though the disability stated by PW2 is 18%. He further submits that the Commissioner failed to award any compensation towards the medical expenses even though there were bills to the extent of Rs.6,161/-. Hence, he submits that the contentions of the learned counsel for the Insurance Company are not sustainable and the petitioner should have been awarded with the medical expenses also. ORDER (i) MFA No. 7680/2016 filed by the Insurance Company is dismissed. (ii) MFA Crob. 32/2020 filed by the petitioner is allowed and the petitioner is entitled to a sum of - 16 - NC: 2026:KHC:2759 MFA No. 7680 of 2016 C/W MFA.CROB No. 32 of 2020 HC-KAR Rs.6,161/- in addition to the sum of Rs.1,62,990/- along with the interest at 12% as ordered by the learned Commissioner, (excluding the delay of 67 days in filing the appeal). (iii) The amount in deposit is ordered to be transmitted to the learned Commissioner. Sd/- (C M JOSHI) JUDGE tsn* List No.: 1 Sl No.: 19