IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.8380/2012 (WC) BETWEEN:
M. Nagaraja S/o Maruthi Aged about 30 years R/o Kukkavada Village, Davanagere Taluk & District-577 002. (By Sri R. Shashidhara, Advocate) AND:
1. M.B. Manjunatha S/o Bheemappa Aged Major, Owner of Autorickshaw Bearing No.KA-16/B-1158, R/o Adanuru Post, Holalkere Taluk Chitradurga District-577 526.
… Appellant 2. The Branch Manager IFFCO TOKIO General Insurance Co. Ltd., Hubli-580 020.
… Respondents (By Sri H.N. Keshava Prashant, Advocate for R2; R1-Served and unrepresented) This MFA is filed under Section 30(1) of WC Act, 1923 against the judgment dated 29.05.2012 passed in KA AA DA/KA NA PA/CR-52/2010 on the file of the Labour Officer and Commissioner for Workmen Compensation, Davanagere District, Davanagere, allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Admission this day the Court delivered the following:-
J U D G M E N T The present appeal has been preferred by the appellant-claimant by assailing the judgment and award passed by the Labour Officer-cum-Commissioner for Workmen Compensation, Davanagere in No.KA AA DA/KA NA PA/CR-52/2010 dated 29.05.2012.
2. Heard. Admit. With consent of learned counsel appearing for the parties, the matter is taken up for final disposal.
3. The brief facts leading to the case are that the appellant-claimant was driver of the auto rickshaw bearing Registration No.KA-16/B-1158 and was employed under respondent No.2 who is the owner of the said auto. It is further contended that on 12.1.2010 the appellant- claimant as per the instruction of respondent No.1 transporting the passenger from Holalkere Town to Adanur village and when he reached near Chowdamma temple at about 8.00 p.m., the vehicle met with an accident. Due to the said accident the appellant-claimant sustained grievous injuries and immediately he was shifted to Navodaya Hospital, Davangere and he was treated as an inpatient for a period of six days and for having sustained injuries during the course of employment he filed the petition before the Labour Officer-cum-Commissioner for Workmen’s Compensation, Davangere.
4. After issuance of notice, the respondent appeared and filed his objections by denying the contents of the petition. It is further contended that as on the date of the accident the appellant-claimant was not having valid and effective driving licence to drive the transport vehicle and as such the Insurance Company is not liable to pay any compensation. On these grounds he prayed for dismissal of the petition.
5. After considering the contentions of the parties, the Commissioner for Workmen’s Compensation has awarded the compensation of Rs.1,03,334/- with interest at 12% per annum, however, the liability has been fastened on respondent No.1-owner of the vehicle. Being aggrieved by the said order, the appellant-claimant is before this Court.
6. The main contention of the learned counsel for the appellant-claimant is that the Labour Officer-cum- Commissioner for Workmen’s Compensation has grossly erred in fixing the liability on the appellant, though there is an evidence which goes to show that the appellant was having valid and effective driving licence to drive the vehicle involved in the accident, by relying upon the decision of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited and Others reported in 2016(4) SCC 298 he has further contended that the appellant-claimant was having a driving licence and it was in force, but he was holding a non- transport driving licence. In view of the said decision of the Hon’ble Apex Court the liability has to be fastened on respondent No.2-Insurance Company. On these grounds he prayed for allowing the appeal.
7. Per contra, the learned counsel appearing on behalf of respondent No.2-Insurnce Company vehemently argued by justifying the judgment and award. He fairly conceded that in view of the decision of the Hon’ble Apex Court the Insurance Company is liable to pay the compensation. On these grounds he prayed for dismissal of the appeal.
8. From the above contentions, the only substantial question of law which arises for consideration of this Court is whether the Labour Officer-cum-Commissioner for Workmen’s Compensation is justified in fixing the liability on respondent No.1-the owner of the vehicle?
9. As could be seen from the records it is not in dispute that the appellant claimant was working as a driver of the auto rickshaw bearing Registration No.KA-16 B 118 and he has sustained the injuries during the course of employment. But the only consideration which has to be made by this Court is that the appellant-claimant was holding the driving licence to drive the transport vehicle and the vehicle is non-transport endorsement.
10. As could be seen from Ex.P5, the driving licence of the appellant-claimant, the said driving licence is valid from 2.2.2009 to 1.2.2029 and the said licence is authorized to drive the auto rickshaw – non-transport. When the appellant-claimant was holding the driving licence and it was having the currency as on the date of the accident, then under such circumstances, the Tribunal ought to have hold that he was having driving licence, but he was not having an endorsement of non-transport vehicle and as such the liability has been fastened on respondent No.1-owner.
11. But in view of the changed condition and in view of the law laid down in the decision quoted in Mukund Dewangan Vs. Oriental Insurance Company Limited and Others reported in 2016(4) SCC 298 it has been laid down by the Hon’ble Apex Court that if a person has been given licence for a particular type of vehicle, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of a different type and even the endorsement of transport and non-transport is also not necessary. In this behalf, when the Hon’ble Apex Court has held as discussed above, then under such circumstances, fastening the liability by the Commissioner for Workmen’s Compensation on respondent No.1 appears to be not justifiable.
12. Keeping in view the above said facts and circumstances, I feel that in view of the decision of the Hon’ble Apex Court, it is respondent No.2-Insurance Company is liable to pay the compensation. Accordingly, the liability has been fastened on respondent No.2- Insurance Company.
13. Accordingly, the appeal is allowed and the judgment and award passed by the Labour Officer-cum- Commissioner for Workmen Compensation, Davanagere, in No.KA AA DA/KA NA PA/CR-52/2010 dated 29.5.2012 is modified by confirming the compensation and the interest awarded by the Commissioner.
Sd/- JUDGE *AP/-