/@ it ‘\ f0 IN THE HIGH COURT OF JUDICATURE AT BILAsPUR [CHHATTISGARH] Misc.Appea1 No.(‘i$0F 2005 iivisian Benc‘i APPELLANT Branch Manager, Orlental Insurance xl'NSURANCE Company Ltd through 1ts Branch Office, Supela, Dlstrlct Durg [CG) VERSUS RESPONDENTS y l. Smt. K. Jyoti w/o late Ramdas, LAIMANTS aged 27 years. 2 Smt K Anamma w/o late K. “VSHri, aged '51 years. (Both r/E) Behind Rajesh Cycle Store, Steel Nagar, Camp 1, Bhilai, District Durg (CG). 3. Harjinder Singh s/o Not Known, f r/o 80, Sunder Nagar, Bhilaj, District Durg (CG). AGENT Sarvan Singh s/o Not Known r/o Near PunJab Dairy, Tata Line Road 18 Camp 1 Bhilai District Durg (CG). M; APPEAL U/s 3o OF THE WORKMEN's COMPENSATION ACT, 1923 AGAINST THE AWARD/ORDER DATED i2/3/2005 PASSED BY THE “COMMISSIONER WORKMEN'S COMPENSATION. DURG 1N i CASE No. KETE. B/T733/2oo3/WCA/P. C HIGH COURT OF CHHATTISGARH : BILASPUR M.A. No. 648 of 2005 Appellant Branch Manager, Oriental Insurance Company Ltd. . Versus ' Respondents Smt. K. Jyoti 85 others ‘And M.A. No. 649 of 2005 Branch Manager, Oriental Insurance Company Ltd. ‘ Versus Appellant Respondents Ramarao 8L others DB: Hon’ble Mr. Justice I. M. Quddusi 85 Hon’ble Mr. Justice Prashant Kumar Mishra Shri Ghanshyam Patel, Advocate for the appellant. Shri Arvind Dubey, Advocate for the Owner ~ Harjinder Singh. Shri B. P. Singh, Advocate for the Agent — Sarvan Singh None fortthe claimants, though served. O R D E R 10ml! (Passed on this Q3“ day of March, 201 1) Per I. M. Quddusi, J. The aforementioned both the appeals are being decided by this =common order as both the claim petitions were filed in regard to the accident occurred on 20.3.2002 by the vehicle — Truck, bearing registration, No. M.K.T 944, which was owned by the respondent Harjinder Singh and insured by the Oriental Insurance Company. . 6 We have heard learned counsel appearing for the! parties and perused the lower Court record. Brief facts, in nutshell are that on 20.3.2002 on the instructions of respondent — agent (Sarvan Singh), the Driver (Ramarao) and Helper (Ramdas) of the truck were returning to Bhilai after unloading the goods in Adarsh Rolling Mill, Tedhesara. On that day near Anjora the ‘Driver of the Truck stopped the vehicle by the. road side in order to check air pressure in the tyres of the truck. When the Driver and Helper both were checking the air pressure, one unknown Truck, tx which was being driven in a rash and negligent manner came there and dashed both Driver and Helper. In that accident Helper Ramdas died on the spot and Driver — Ramarao received grievous injuries. E Subsequently right leg of Driver Ramarao was cut from‘ the portion below the knee and thus he got permanent disability/imputation. Legal heirs of deceased Helper ‘(Ramdas) flled Claim Case No. B/1/33/2003/WCAct/Fatal before the CommissiOner, Workmen’s Compensation, Durg for award of a total compensation of ks.» i,75,000/— on the submissions that deceased was getting Rs. 2000/— per month as salary and Rs. 30/— as daily allowance’ Learn‘ed Commissioner, taking into consideration the facts situation and the evidence on record assessed the monthly income of the deceased as 2900/— and by deducting 50% of the sum, looking to the age of the deceased as 3O years, multiplied the remainder Rs. l450/ — by the factbr 207.98 provided 1n Schedule Iv of Section 4 of the Workmen’s Compensation Act, 1923 for working out lump sum equivalent of compensation amount in case of permanent disablement and death and thus awarded a sum of Rs‘ 3,01,571/-. It has been directed that the amount of compensation shall be paid to the claimants by_ the Insurance Company on the bsa'sis of indemnified liability and if the amount of compensation is 'hot paid within one month the amount shall carry interest at the rate of 10% per annurn from the date of the accident i.e. 2b.3.2002. A penalty of Rs. 15,000/— has been imposed on the owner and agent and if the amount of penalty is not- paid within one month the amount of penalty shall carry interest at the rate of 10% per annum from the date of the accident. ‘v'x njured Driver (Rainarao) fllged Claim Case No. 34/Ka.Ta.B—1/ WCAct/2003 before the Commissioner, Workmen’s Compensation, Durg for award of a total compensation of Rs. 2,10,000/- .on the submissions that due to the accident he got ' permanent disability/imputation as his right leg was cut from the portion below the knee. He was getting Rs. 2000/- per month as salary and Rs. 50/ — as daily allowance. Learned Commissioner taking into consideration the facts situation and the evidence on record assessed the monthly income of the deceased as 3500/— and by taking 60% of the sum for 80% of future loss of earning capacity, considering the age of the injured as 3O years applying the factor 207.98, awarded a sum of Rs. 3,4§,406/—. It has been directed that the amount of compensation shall be paid to‘the claimants by the Insurance Company on the basis of indemnified liability and if the amount of compensation is not paid within one month the amount shall carry interest at the rate of 10% per annum from the date of the accident i.e. 20.3.2002. A penalty of Rs. 15000/— has been imposed on the owner and agent and if the amount of penalty is not paid within one month the amount of penalty shall carry interest at the rate of 10% pr annum from the date of the accident. s The question of law in both the cases arises for 'consideration are as under : '(a) Whether on the facts and circumstances of the case the owner iof the vehicle was different to the principal employer and whether the Insurance Company is liable to pay the amount of compensation. (b) Whether the money given to the deceased Helper as Rs. 30/— per day and to the injured Driver as Rs. 50/— per day for taking food while traveling only, should be counted towards the income of the workmen. K 7 \\\\ I @ In the written statement flled by the appellant/Insurance Company there was no plea that Harjinder Singh was not owner of the truck. E The insurance of the vehicle in question was made in the name of arjinder Singh showing him to be the owner. Therefore, the plea al<en by the claimants that Harjinder Singh was the principal employer and Sarvan Singh was his agent cannot be ruled out in the absence of any contrary evidence. Leatned counsel appearing for the appellant has raised contention to the effect that once a claim petition was filed“before Commissioner for orkmen’s Compensation in Which application for amendment was rejected but later on the claim petition was withdrawn with liberty to file an appropriate claim petition before a Court having jurisdiction, it as not open for the claimant to file another claim petition making H‘arjinder Singh as party. To our view once the Commissioner, Workmen’s Compensation allowed the claimants to withdraw the claim petition with liberty to file before a Court having jurisdiction, it was open for the claimants to tile a fresh petition either before Motor Accident Claims Tribunal or before Commissioner for Workmerf’s Compensation. If they have chosen to file a frsesh petition before Commissioner for Workmen’s Compensation at subsequent stage also, to our opinion, there is no illegality and the same has rightly been entertained. ' ith regard to the plea regarding principle employer Harjinder Singh, to our view the principal employer was a necessary party and in earlier claim petition, which was withdrawn, only the agent was made a party and the principal employer was not made a party. It was a . istake on the part of the claimants. H t W w W m In View of the facts and circumstances we uphold the flndings given by the Commissioner Workmen’s Compensation in both the appeals ' in regard to the liability part is concerned. However, with regard to the calculation of compensation spart we have seen that when the‘deceased as a helper used to go on traveling he as being given Rs. 30/ — for his food expenses, which could not have been counted as salary and allowances. It was paid only when the deceased used to go on traveling and if he was not traveling then there was no question pf giving that amount to him. Therefore, the u . Commissioner has wrongly included the amount of Rs. 30/— in ssessing the monthly wages based on Rs. 900/- p.m. without onsidering that on the days when the deceased was not traveling he was not getting the food expenses. Therefore, the monthly salary of the deceased at Rs. 2000/—, assessed by the Tribunal is only the a 3 O years the‘factor of 207.98 shall be used for the 50% of the monthly income that means Rs. IOOO/— x 207.98 = 207980/-. ‘Thus the Commissioner for Workmen’s Compensation has assessed the compensation in excessive and therefore the impugned award dated 2.3.2005 passed in Case No. Ka.Ta. —B/1/33/2003/WCAct/ Fatal is modified} to the extant that the claimants would be entitled to get Rs. 2,07980/~ as compensation. Four Hon’ble Judges Bench of Hon’ble Apex Court in a decision in the case of Pratap Narain Singh Vs. Shrinivas Sabata and another (AIR 1976 SC 222) has held in paragraph 5 as under : “5. iThe expressidn “total disablement" has been defined in ' Section 2 (1) (1) of the Act as follows: (1) .,"total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates l ctual salary of the deceased. Considering the age of the deceased as E w a c l 3 ‘ @ workman for all work which he was capable of performing at the time of the accident resulting in such disablement.” It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of 1 performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: “The injured workman in this case is carpenter by profession ....... By loss of the left hand above the elbow, he has evidently been rendered unfit for the'work of carpenter as the work of carpentry cannot be done by one hand only.” This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part 11 of Schedule I, because it was not the appellant’s case before the Commissioner that amputation of the arm'was from 8" from tip of acromion to less than 4 1/2” below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.” ‘ Ih the above cited case the injured was a carpenter and in the instant case the injured was a driver, who comes in the category of skilled labour, is similar to that of carpenter, who is also a skilled labour. S There is amputation of the leg below the knee and therefore he will not-be able to work as driver ice. skilled labour and cannot work in the circumstances when he lost his leg below the knee and therefore there is 100% disablement. beamed counsel for the appellant relied upon a decision of Hon’ble Apexl Court in Ramprasad Balmiki Vs. Anil Kumar Jain and others (2008) 9 SCC 492, wherein claimant driver claimed permanent disability in right leg arising out of the motor accident. In the medical wx @ check up he was declared unfit t0 drive a Vehicle and on that basis of medical invalidation he was prematurely retired from service. In that case it was held by the Hon’ble Apex Court that High Court correctly proceeded on the assumption that the extent of permanent disability suffered by the appellant/ claimant is only 40% and not 100%. But this decision is related to Motor Vehicles Act, 1988 and not under the Workmen’s Compensation Act, 1923‘ This judgment is passed by Two Judges Bench of Hon’ble Apex Court, whereas the decision in the case of Pratap Narain Singh (supra) is passed by Four Judges Bench of u a Hon’ble Apex Court under the Workmen’s Compensation Act, 1923. Therefore, { , in the instant case the principles laid down in the case of ?ratap‘Narain Singh (supra) would e applicable. ‘n M..No. 649 f 2005, with regard to the callati of I A o cuon cmpensatin part we ha seen that when the injured as a Driver u o d e ch u e lowances. t was paid only whe he injured used to go on traveling, he as not traveling the er was no question of giving at a t d e amount of Rs. 50/ — in asesing the monthly wages, based on Rs. 1500/—, without considering tt o the days hen the injured s o reling he was not getting th food expenses. Therefore, the ontly salary of t injurd t Rs. 2000/—, assessed by the Tribunal s only the actual salary of the injured considering the amputation ustained by the injured and his e as 3O years the factor f 207.98 hall be use for the 0% of t monthly income and 80% of te loss oo ve r sed to. g on traveling he was being given Rs. 50/— for his foo ‘expnses, whi cold not hav been counted as salary and al I n t 1f w n the th mount to him. Therefore, he Commissioner has wrongly include th ss ha n w wa nt tav e mh he e a i s ag o s d 6 he h of future income tha mans Rs‘ 1200/— x 207.98 = 2,94,57/—. b r t e 6 Thus the Commissioner for Workmen’s Compensation has assessed the compensation in excessive and therefore the impugned award dated 2.3.2005 passed in Case No. 34/Ka.Ta. ~ B—l/WCAct/2003 is modiiied to the extant that the claimant/injured would be entitled to get Rs. 2,94,576/— as compensation. Learned Commissioner for Workmen’s Compensation has awarded interest at the rate of 10% in both the above cases. However, sub—section (3) of Section 4A of the Act, '1923 provides that where any employer is in default inlpaying the compensation due under this Act Within one month from the date it fell due, the Commissioner shall direct that the employer shall, in addition to the amount of the a arrears, pay simple interest thereon at the rate of twelve per cent per annum. Therefore, it is directed that the claimants in both the cases l shall rbe entitled to get the amount of compensation @ 12% per annum, instead of 10%; as has been directed by the Commissioner. Rest of the conditions mentioned in the impugned awards shall remain intact. in lthe result the M.A.No. 649/2005 and M.A.No. 648/2005 are allowed in part to the above extent. No order as to costs. n. .;‘:»V’—-’ Thakur ,. sdl- I.M.Qudd“5i Sd/- Judge l Prash'ant Kumar Mishra iJudge.