IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MFA.No. 149 of 2006() ---------------------------- WCC.150/2003 of Commissioner for Workmen's Compensation ,THRISSUR ................................ APPELLANT(S): -------------- THE NEW INDIA ASSURANCE COMPANY LTD., KUNNAMKULAM NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.JACOB MATHEW RESPONDENT(S): --------------- 1. SHAKEER, S/O. ABOOBACKER, PUTHUVEETIL HOUSE, AKALAD P.O., CHAVAKKAD. 2. M.P. HANEEFA, MOOKKILAPPEDIKKALA HOUSE, EDAKKAZHIYUR, CHAVAKKAD. ADV. SRI.D.ANIL KUMAR FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(W.C.C.) No.149 of 2006 ----------------------------------------------- Dated 17th October, 2011. J U D G M E N T K.M.Joseph, J. Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act (for short, 'the Act'). He challenges the compensation awarded by the Commissioner with 12% interest per annum from the date of the accident. 2. Briefly put the case of the applicant/workman was that he was employed as an auto driver and he met with an accident resulting in the following disabilities, which are sought to be proved by disability certificate issued by AW2 medical practitioner : 1. Unhealthy scar over lateral side of right left. 2. Stiffness of right ankle joint range of movement 0-9 deg. 3. Persistent head ache, vertigo and cloudiness of consciousness. 4. Difficulty in turning the neck sideways. 5. Difficulty in driving autorikshaw as he suffers from persistent head ache vertigo and difficulty to turn the neck sideways. 3. The appellant was examined as AW1. Exts.A1 to MFA 149/06 2 A9 were produced on the side of the applicants and Exts.M1 to M3 were produced on the side of the appellant. 4. We heard learned senior counsel for the appellant and the learned counsel for the respondents. 5. Learned senior counsel would contend that this is a case where Section 3 of the Act as it then was, exempts the employer from liability under the Act. He relied on Section 3(1) proviso (iii) of the Act, which reads as follows : 3. Employer's liability for compensation --(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable -- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [three] days; (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to -- x x x x x x x x x x x x x x MFA 149/06 3 (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman, x x x x x x x x According to him, the employee was not having a licence to drive a transport vehicle and he was also not having the badge. Next, he would contend that having regard to the disability suffered, there is no need for ordering compensation on the basis that he suffered 14% loss of earning capacity. 6. On the other hand, learned counsel for the respondent would submit that the workman did have a licence. As far as badge is concerned, the fact that there is no badge will not have any effect as per the provision relied on by the appellant. As far as loss of earning capacity is concerned, he submits that it has been correctly assessed. 7. We have perused the records. After perusing the records, learned senior counsel would limit his contention to the complaint that there is no badge. We perused the Kerala Motor MFA 149/06 4 Vehicles Rules(for short, 'the Rules'). Chapter II deals with licensing, conduct and duties of drivers of motor vehicles. Rule 11 provides that the licensing authority while granting authorization shall issue a driver's badge on payment of the prescribed fee, endorse upon the driving licence accordingly and return the licence. No doubt, under Rule 10, an enquiry is to be conducted by the licensing authority, which reads as follows : “Licensing Authorities may make enquiries : Upon receipt of an application for a driving licence or for an authorization to drive a transport vehicle, the Licensing Authority may make such enquiries as may be reasonably necessary to establish the identity of the applicant and to ascertain that the applicant is not disqualified, or liable to be disqualified for holding or obtaining a driving licence or an authorisation to drive a transport vehicle.” 8. Rule 12 of the Rules deals with the driver's badge and its fee. We extract the same also. “Drivers Badge and its Fee --(i) The metal badge issued MFA 149/06 5 to a driver on authorising him to drive a transport vehicle shall be in the form illustrated in the First Schedule to these rules and inscribed with the word “Driver” and identification number and the name of the district in which it was issued. (ii) a driver shall not hold more than one badge. (iii) The fee payable by an applicant for the issue of a badge shall be fifty rupees : Provided that the fee payable by an applicant authorised to drive only a motorised cycle-rickshaw for the issue of badge shall be five rupees.” 9. We are of the view that the purpose of a badge is essentially to identify the driver. It has no nexus with the concept which is embedded in Section 3 (1)(iii) of the Act. We cannot hold, as contended by the learned senior counsel, that it is intended for securing the safety of the employee. The issuance of the badge has got nothing to do with the safety of the employee. Accordingly, we reject the said contention. 10. We have already extracted the disabilities. The medical practitioner has also been examined. The percentage MFA 149/06 6 of loss of earning capacity is only 14%. In the facts of this case, we see no reason to interfere with the award. The appeal is dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.