THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Civil Miscellaneous Appeal Nos.3740 and 1585 of 2004
Between:
Dated 24th September, 2014
The Divisional Manager, New India Assurance Company Ltd., Nizamabad …Appellant (C.M.A.No.3740 of 2004) And Chakali Bhupal and another …Respondents (C.M.A.No.3740 of 2004) Counsel for the appellant: Smt.I.Maamu Vani Counsel for the respondent: Sri Venkateshwar Varanasi The Court made the following:
COMMON JUDGMENT:
C.M.A.No.3740 of 2004 is filed by the Insurance Company against award, dated 27.01.2004, in W.C.No.78 of 1999 (NF) on the file of the learned Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nizamabad (for short ‘the Commissioner’) feeling aggrieved by award of Rs.99,452/- towards compensation in favour of Chakali Bhupal, S/o Agaiah.
C.M.A.No.1585 of 2004 is filed by the said Chakali Bhupal feeling dissatisfied with the quantum of compensation awarded in his favour in W.C.No.78 of 1999.
For convenience, the parties are referred to as they are arrayed in C.M.A.No.3740 of 2004.
The facts leading to the filing of W.C.No.78 of 1999 are, briefly, stated as under:
Respondent No.2 is the owner of the tractor and trailor bearing Nos.AP 25 B 9957 and AP 25 B 9958, respectively. It is the case of respondent No.1 that he was engaged by respondent No.2 on a monthly salary of Rs.3,000/- and daily batta of Rs.50/-. It is his further pleaded case that on 18.01.1998, while he was travelling as a labourer for loading and unloading in the said trailor and when the tractor has reached the limits of Lingampally Kalan, at about 8.00 pm., the driver of the tractor drove the same in a rash and negligent manner at a high speed and in a zigzag manner, resulting in the tractor and trailor falling in a ditch, on account of which, respondent No.1 has fallen down from the trailor and sustained fracture of spinal card, multiple fracture to left leg, fracture of ribs, multiple and grievous head injuries and also other multiple and grievous injuries on various parts of the body. Therefore, he has claimed Rs.3 lakhs in lumpsum as compensation.
Respondent No.2 filed a counter-affidavit, wherein he has supported the case of respondent No.1.
On behalf of the appellant, a duly Constituted Attorney filed a counter affidavit, wherein while denying the liability of the appellant, it was specifically stated that the tractor and trailor alleged to have been involved in the accident was used only for agricultural purpose, that it was not used for carrying labourers and that therefore the appellant was not liable to pay the compensation.
Based on the respective pleadings, the Commissioner has framed the following issues:
“1. Whether the Applicant is workman within the meaning of the Act and whether the accident occurred during the course of employment under Opposite Party No.1?
2. If so, to what relief the Applicant is entitled and against which of the Opposite parties?”
In support of the claim of respondent No.1, he has examined himself as P.W.1 and examined one Dr.L.Ramulu as P.W.2 and got Exs.A1 to A5 marked. On behalf of the appellant, it has examined one Mr.D.Padma Rao, Senior Assistant, as R.W.1 and got Exs.B1 and B2 marked.
In his award, the Commissioner has mainly relied upon the evidence of P.W.2, Ex.A3-Injury Certificate and Ex.A5-Disability Certificate.
Before undertaking further discussion, it is to be noted that the Commissioner has not framed an issue on the liability of the appellant with reference to the policy obtained by respondent No.2.
Be that as it may, the evidence on record is sufficient for this Court to decide the said issue which was specifically raised in the counter affidavit and also in the present appeal by the appellant.
The points that arise for consideration in these appeals are:
1. Whether determination of compensation by the Commissioner is proper and correct?
2. Whether the appellant is liable to pay compensation under the insurance policy and relevant statutory enactments? and
3. Whether respondent No.1 is entitled to enhancement of compensation?
Re Point No.1 As noted hereinbefore, it is the pleaded case of respondent No.1 that due to the accident involving tractor and trailor on which he was travelling, he has suffered fracture of spinal card, multiple fracture to left leg, fracture of ribs, multiple and grievous head injuries and other multiple and grievous injuries on various parts of the body. In support of the plea of injuries, he has filed Ex.A3-injury certificate and Ex.A5-disability certificate. He has examined the Orthopaedic Surgeon, who has issued Ex.A5, as PW.2.
In Ex.A3 issued by the Deputy Civil Surgeon, Civil Hospital, Yellareddy, the injuries suffered by respondent No.1 are described as under:
“1. Blunt simple over the left knee 4 x 3 cm Abrasion lescrally
2. Blunt simple over the left leg 6 x 3 cm Abrasion below the knee leteral
3. Blunt simple over the left thigh 20 x 3 cm Abrasion Antro lattrally in the upper third
4. Blunt Grievous Swelling over the left hip On x ray examination there infracture near of left forearm cpruatixmay at medial same hurm”
In Ex.A5, the disability certificate issued by PW.2, it is certified that there is malunited fracture, neck femur, shortening present, limp present, painful and restricted movements of the left hip joint. PW.2 has assessed the disability at 70%. The Commissioner has, however, taken 50% as disability and awarded Rs.99,452/- as compensation.
In his chief examination, PW.2 has deposed that he has examined respondent No.1 physically and clinically, and subjected him to exercise, that he has verified medical records and found that respondent No.1 had malunited fracture, neck femur, shortening present, limp present, painful and restricted movements of the left hip joint and that he has assessed the disability at 70% partial permanent disability and loss of earning capacity at 70%. He has further stated that the injuries mentioned in Ex.A5 correspond to those mentioned in Ex.A3. He has also opined that respondent No.1 cannot do labour work in view of the disabilities mentioned by him in Ex.A5.
In his cross examination, PW.2 has admitted that he has not treated respondent No.1, that respondent No.1 has come to him only for the purpose of issue of disability certificate, that there is Medical Board at Govt.Hq. Hospital, Nizamabad and that he has issued Ex.A5 in his private capacity as an Orthopaedic Surgeon. He denied the suggestion that there is no corroboration between the injuries mentioned in Ex.A3 and those mentioned in Ex.A5. He further deposed that he has not obtained any X-ray at the time of issuing Ex.A5. He has denied the suggestion that he has not examined respondent No.1 clinically and physically and that he has not verified the medical records of respondent No.1 while issuing Ex.A5. He has also denied the suggestion that he has issued false disability certificate.
It needs to be seen that Ex.A3, injury certificate, was filed by respondent No.1 himself. This certificate described three injuries as simple in nature, as three of them are only abrasions. PW.2 in his evidence far from disputing the contents of Ex.A3 issued by the Deputy Civil Surgeon has in fact sworn by it. While Ex.A3 was issued immediately after the accident on 19.01.1998, Ex.A5, disability certificate, was issued on 10.11.2002, nearly five years after the accident. Interestingly, PW.2 has admitted that he has not even taken X-ray of respondent No.1 before issuing Ex.A5, disability certificate. Though he has denied the suggestion that there is no correlation between Ex.A3 and Ex.A5, the extreme variation in the nature and description of the injuries between Ex.A3 and Ex.A5 is striking even for a layman. When Ex.A3 produced by respondent No.1 himself clearly described three injuries as simple in nature, the burden heavily lies on respondent No.1 to prove that he has received grievous injuries. It is incomprehensible that simple injuries received by respondent No.1 in the year 1998 could mature into grievous injuries by the time PW.2 has examined respondent No.2 on 10.11.2002. The falsity of Ex.A5 is thoroughly exposed by Ex.A3.
In C.M.A.Nos.483 of 2005 and 1626 of 2004, this Court has thoroughly discussed the value of evidence given by PW.2 by holding that he is a stock witness. Such discredited evidence cannot be given credence at all. However, considering the fact that as per Ex.A3-injury certificate, injury No.4 was a fracture to left forearm and described as grievous in nature, respondent No.1 is entitled to reasonable compensation for pain and suffering and loss of earnings till the fracture is healed.
Hence, considering the facts and circumstances of the case, I hold that respondent No.1 is not entitled to more than 50% of the amount awarded by the Commissioner as compensation.
This point is answered accordingly.
Re point No.2:
The appellant in the counter affidavit has specifically averred that the tractor and trailor were insured for agricultural use only. Ex.B1 is the insurance policy, wherein it is clearly mentioned against the column “LIMITATIONS AS TO USE” as “Agriculture use only”. While giving break up of the sum of Rs.372/-, the policy mentioned a sum of Rs.120/- towards the liability of tractor; Rs.87/- towards the liability of trailor, Rs.150/- towards unlimited property damage (ULPD) and Rs.15/- towards LL to driver.
Under Section 147(1) of the Motor Vehicles Act, 1988 (for short ‘the Act’) the risk of the driver of any vehicle, the conductor of a public service vehicle or the person examining the tickets of such vehicle and a person being carried in goods carriage vehicle are alone covered.
Admittedly, the insurance policy permitted the tractor and trailor to be used only for agricultural purpose. Therefore, no person other than driver is covered under the Act liability. If the tractor was used for loading and unloading of any goods other than the agricultural product, the said use is contrary to the policy itself. Moreover, the labourers are not covered by Ex.B1, insurance policy, issued by the appellant as no separate premium has been paid for such labourers. The appellant is, therefore, not liable to pay compensation awarded by the Commissioner in favour of respondent No.1. The Commissioner has committed a serious error in not dealing with this aspect and proceeded on a completely erroneous premise that the appellant is liable to pay the compensation.
This point is accordingly answered in favour of the appellant.
Re Point No.3:
In the light of the findings on point No.1, it is held that respondent No.1 is not entitled to enhancement of compensation.
Conclusion:
Based on the discussion undertaken on point Nos.1, 2 and 3, it is held that respondent No.1 is entitled to 50% of the amount awarded by the Commissioner as compensation and the appellant is not liable to pay any compensation.
It is represented that the appellant has deposited the entire compensation amount awarded by the Commissioner, out of which, respondent No.1 was permitted to withdraw 50%. Therefore, the appellant is permitted to withdraw the remaining 50% amount lying with the Commissioner. Considering the fact that respondent No.1 is a labourer, the appellant shall not recover the compensation withdrawn by him.
C.M.A.No.3740 of 2004 is accordingly allowed and C.M.A.No.1585 of 2004 is dismissed.
As a sequel to disposal of the civil miscellaneous appeals, all the pending interlocutory applications in these cases shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 24th September, 2014
VGB