F.A.O. No.22 of 2011 (O&M) 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... F.A.O. No.22 of 2011 (O&M) Date of Decision: September 06, 2011 United India Insurance Company Ltd. ... Appellant VERSUS Vijay Kumar and another ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.D.K.Dogra, Advocate for the appellant. Mr.Ram Tilak, Advocate for respondent No.1. -.- MOHINDER PAL, J. This appeal has been filed by the appellant challenging the order dated 31.08.2010 passed by the Commissioner, Workmen's Compensation Act, Circle, Hissar (hereinafter referred to as 'the Commissioner'). It is case of the claimant (respondent herein) that on 31.01.2003, he was driving the truck started from Gantour after loading the cotton bales. The truck was unloaded at Bandi, Himachal Pradesh. At that time, Dilbag Singh was Conductor on this truck. When the truck reached near Wasim District (Maharahstra) in the intervening night of 31.01.2003 and 01.02.2003 at about 12.00 o' clock, all of a F.A.O. No.22 of 2011 (O&M) 2 sudden Kamani of the truck broke down and truck turned turtle and as a result of that, the claimant received multiple serious injuries including the fracture upon right leg. He was medico legally examined in the hospital at Wasim District and remained admitted in Chawla Nursing Home Hisar from 06.02.2003 to 16.02.2003. While in hospital, operations were performed and an amount of ` 1,50,000/- was spent on treatment, medicines and special diet etc. An attendant and separate transport was also required to be arranged. The claimant became permanent disabled and was enable to do the job of driver. The claimant claimed his age to be 38 years and at that time, he was earning ` 5,000/- per month plus ` 60/- per day as pocket expenses and thus totaling ` 7,800/- per month. It has been submitted that the accident has taken place during the course of employment with respondent No.1. After accident, the claimant filed the claim petition under Section 163-A before the MACT Hisar but the same was got dismissed as withdrawn due to some technical defects and, thereafter, an application under Workmen's Compensation Act was moved on and a separate application for condonation of delay was also filed. After notice, respondent No.1 admitted the contents of employment, accident, injury to the claimant and the fact that the truck in question was insured with respondent No.2 (appellant herein). However, respondent No.2 i.e. the Insurance Company in separate written statement contested the claim petition and requested for dismissal as having been filed in collusion with respondent No.1. It was submitted that the claimant was real brother of respondent No.1 and the present claim petition has been filed to grab the compensation amount. It is submitted that the appellant was not in employment of F.A.O. No.22 of 2011 (O&M) 3 respondent No.1 as driver of truck No.HR-39/3963 at the time of alleged accident and the driver was not holding valid and effective driving licence at that time as the truck was being driver in contravention of the terms and conditions and limitations to the use of vehicle. It is prayed that the petition was liable to be dismissed. The following issues were framed by the trial Court: 1. Whether there is any relationship of master and servant between the applicant and respondent No.1? 2. Whether the petitioner is entitled to the amount of compensation as claimed in the claim petition, if so, to what amount and from whom? 3. Relief.” The Commissioner took up all the issues together and decided the claim petition in favour of the claimant by awarding compensation of `2,27,472/- payable within 30 days, failing which he was ordered that respondent No.2 will be liable to pay simple interest @ 12% per annum from the date of this order till its realization. Aggrieved from this order of the Commissioner, respondent No.2-Insurance Company has come in appeal, which is pending before this Court. I have heard the learned counsel for the parties and have gone through the documents available on the file. Learned counsel for the appellant has raised three fold arguments. It is submitted that respondent No.1 was real brother of respondent No.2 and the claim petition is filed in collusion with each other. To support his contention, learned counsel for the appellant has referred to cross-examination of respondent No.1 recorded in the Court. It is further submitted that dis-ability was assessed to be 15% F.A.O. No.22 of 2011 (O&M) 4 partial disability of the lower limb and 6% to whole body, therefore, compensation should have been ` 27,296.64. The Commissioner in its own way wrongly treated the permanent partial disability of lower limb to be 15% and assessed the compensation to be ` 2,27,472/-, which was excessive. Finally, it has been submitted that there was inordinate delay of three years in filing of the claim petition and, as such, the same was hopelessly time barred. While arguing on behalf of the respondent-claimant, it has been submitted that there was sufficient evidence available on the file, according to which, the claimant was under the employment of his brother and was driving the truck on the relevant date, which met with an accident. He also referred to the disability certificate and has submitted that the award passed by the Tribunal was liable to be upheld being devoid of any defect. Learned counsel for the appellant has laid much emphasis on the point of relationship of the claimant with his brother, who is stated to be owner of the truck. He has also referred to the cross-examination of the claimant wherein it has been admitted that his brother was owner of the truck. To my mind, relationship with the owner of the truck will not be material. Otherwise also, the requirement of the truck is that the driver should be driving the truck and should have a valid driving licence on the date of accident. There is no law which prohibits a person from employing his brother as a driver of the vehicle owned by him. It has come in evidence that the brothers are living separately and the claimant employed his brother on truck No.HR-39/3963 as driver on monthly salary. Merely employment as a driver on truck for salary and ownership of truck by his brother does not vitiate the claim of the applicant. This view is supported by F.A.O. No.22 of 2011 (O&M) 5 Rohit Walia Vs. National Insurance Company Limited and another 2006 ACJ 1975, which has been relied upon by the trial Court. Regarding disability attested copy of F.I.R., medico treatment record and other record and statements of AW1, AW2 and AW3 are sufficient to prove that due to over turning of the truck and breaking of Kamani, the claimant received injuries in the accident. The claimant has tendered his evidence by way of affidavit Ex.AW1/A which shows that there was fracture of his right leg and an operation has been performed in Chawla Nursing Home. He remained admitted for eight months and became permanent disabled due to the injuries caused in the accident. He was not in a position to do the routine work of driver. The medical board has issued the disability certificate. Dr.S.K.Nawal appeared as AW3, who was working as a Civil Surgeon, District Hoshiarpur and was a member of the Board and had issued the disability certificate. In cross-examination, it has been stated that disability certificate was issued after seeing X-ray and treatment papers and there was no chance of improvement in the disability of the injured. There is no straight-jacket formula, which can be applied to know the extent of damage caused to a person on account of accident. Each case has to be judged on its own facts. It is always difficult to spend rest of life with injury as every day injury will come in between your daily activities. Though, learned counsel for the appellant has submitted that as per calculations, the compensation should have been ` 27,296.64 (being maximum wages per month). However, I am of the considered opinion that mathematically precision cannot be applied while dealing with human problems. An amount of compensation of ` 2,27,472/- awarded by the Commissioner is just and fair in this case where the person has remained confined to bed for F.A.O. No.22 of 2011 (O&M) 6 about eight months after the accident. The short argument of the learned counsel for the appellant regarding delay in filing of the claim petition is also not sustainable in view of the explanation given by the claimant himself. It has been submitted that earlier the claim petition was filed under Section 163-A before the MACT, Hisar. However, later on it was withdrawn for some technical defect and the present claim petition has been filed. There is no limitation period to file a claim petition in MACT Act. I am of the view that there should not be any limitation in filing of claim petition under Workmen's Compensation Act, which is otherwise also explained in facts and circumstances of this case. For the aforestated reasons, the present appeal stands dismissed. September 06, 2011 ( MOHINDER PAL ) jt JUDGE