IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.04.2010 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.57 of 2010 M.P.Nos.1 and 2 of 2010 The United India Insurance Co. Ltd., No.19, Andiyappa Gramani Street, Royapuram, Chennai-13. ... Appellant vs. 1.Thiru.Ponnuvel 2.Thiru.M.Vevekananda ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree, made in W.C.No.47 of 2008, dated 12.06.2009, on the file of the learned Commissioner for Workmen Compensation, Deputy Commissioner of Labour, Chennai. For Appellant : Mr.J.Chandran For 1st Respondent : Ms.M.Malar J U D G M E N T United India Insurance Company Limited is the appellant. Questioning the liability, fastened on the Insurance Company by the Commissioner for Workmen, Deputy Commissioner for Labour, Chennai, and the quantum of compensation, this appeal has been filed. 2. According to the first respondent, he was employed as a driver in Mini Door Auto, bearing Registration No.TN 05 9049 on a monthly salary of Rs.6,000/- with the second respondent for a period of two years. On 01.10.2007, about 2.15 P.M., at Sathiyamurthy Main Road, near Water Tank, the said Auto collided with a Lorry and the respondent/claimant sustained grievous injuries. He was taken to Stanley Medical College Hospital for treatment. In this regard, a case in Cr.No.512 of 2007, was registered in G3, Kilpauk Traffic Police Station on the same day. As the second respondent was aware of the accident, no notice was given. According to the first respondent, the accident had occurred during the course of his employment with the second respondent and when the above said vehicle was insured with the appellant-Insurance Company. The policy was valid from 09.01.2007 to 08.01.2008 and therefore, the Insurance Company is liable to pay compensation. He claimed a compensation of Rs.6,00,000/-. The owner of the vehicle remained exparte. 3. The appellant-Insurance Company disputed the manner of accident. The relationship of employer and employee was put to strict proof. Apart from the above, the appellant-Insurance Company resisted the claim on the ground that the first respondent has violated the terms and conditions of the Insurance Policy as well as the provisions of Motor Vehicles Act, since he had allowed three passengers to sit in front seat of the Autorickshaw at the time of accident and therefore, they are not liable to pay compensation. 4. It was the further contention of the appellant-Insurance Company that there was a wilful disobedience of the instructions of the employer by the Auto driver in transporting more number of passengers and therefore, for the negligence caused by him, the Company cannot be mulcted with the liability. 5. Before the Tribunal, the first respondent/claimant examined himself as PW.1 and PW.2, is the Doctor, who examined the respondent/claimant with reference to medical records. Ex.A1  FIR, Ex.A2  Rough Sketch, Ex.A3  Discharge Summary, Ex.A4  Insurance Policy, Ex.A5  Driving Licence, Ex.A6  X-Ray and Ex.A7  Disability Certificate were marked on the side of the respondent/claimant. No oral and documentary evidence has been let in on behalf of the appellant- Insurance Company. 6. Learned Commissioner for Workmen, on evaluation of pleadings and evidence, found that at the time of accident the first respondent was employed as a driver with the second respondent and by applying the structured formula, quantified the compensation at Rs.1,72,030/- with the statutory interest from the date of claim till the date of realisation. 7. Inviting the attention of this Court to Ex.A1  FIR, lodged by one Mary to the effect that the Autorickshaw bearing No.TN 05 9049 was driven in a high speed and in the process of overtaking a lorry, collided with another vehicle, Mr.J.Chandran, learned counsel for the appellant-Insurance Company submitted that since the accident had occurred due to the negligence of the driver of the Autorickshaw, the Insurance Company cannot be fastened with the liability to pay compensation for the injuries sustained by the respondent. He further submitted that the Commissioner for Workmen has erred in taking the income of the first respondent at Rs.3,304.55 per month and therefore, the quantum of compensation arrived at, is on the higher side. 8. Referring to the provisions of the Motor Vehicles Act and Central Motor Vehicle Rules, learned counsel for the appellant-Insurance Company submitted that on the date of accident, six major persons travelled in the Autorickshaw, exceeding the capacity of the permit condition and the Insurance Policy and having found that the driver had admitted the guilt and paid the fine before the learned Judicial Magistrate in C.C.No.2130 of 2008, under Sections 337 and 338 of IPC, and Sections 184, 41(II) r/w. Section 177 of Motor Vehicles Act, the Tribunal ought to have exonerated the Insurance Company from its liability. He further submitted that the driver, the tort-feasor, is not entitled to make any claim for compensation. He also relied on a decisions of the Supreme Court in Tamil nadu State Transport Corporation v. Natarajan reported in 2003 ACJ 1002 and Krishnamurthy v. G.Raji reported in 2007 ACJ 2299. 9. Per contra, learned counsel for the first respondent/claimant submitted that the claim is maintainable under the provisions of the Workmen's Compensation Act. She further submitted that as the accident arose during the course of employment, it is always open to first respondent/claimant to make a claim under the provisions of the Workmen's Compensation Act. It is also her contention that it is not open to the appellant-Insurance Company to raise defences, that are available under the Motor Vehicles Act, in a claim made under the Workmen Compensation Act. She also submitted that the assessment for loss of earning capacity has been made properly, in accordance with the statutory provisions and therefore, the quantum of compensation arrived at by the Tribunal need not be interfered with. 10. Heard the learned counsel for the parties and perused the materials available on record. 11. As per Ex.P1  FIR, lodged by Mary, on 01.10.2007, while she was returning from the hospital, along with her mother and child, two other persons were seated along with the driver. As per the information to the Police, when the Autorickshaw attempted to overtake a lorry, it dashed against a vehicle, which came in the opposite direction and in the result, she sustained injuries. Relying on the above information, the appellant-Insurance Company has made submissions, regarding negligence of the driver and consequently, the liability to pay compensation. 12. In Tamil nadu State Transport Corporation v. Natarajan reported in 2003 ACJ 1002, relied on by the learned counsel for the appellant, the claimant was the driver of the Transport Corporation bus and he was found negligent to an extent of 50% for causing the accident. In view of the above finding of contributory negligence on the part of the driver of the Transport Corporation bus, the Corporation, as an employer, was held not vicariously liable to pay compensation for the negligence of the claimant himself. In the said reported judgment, this Court has also observed that the claimant did not make any claim under the Workmen Compensation Act, against the employer. In these circumstances, a portion of the award, directing compensation, to be paid by the Transport Corporation, has been set aside. 13. In Krishnamurthy v. G.Raji reported in 2007 ACJ 2299, the driver of the car sustained injuries in the accident, for which, he himself was responsible for the accident to an extent of 50%. While adjudicating the issue as to whether, he could claim compensation against the insured and insurer of the vehicle, a learned Single Judge of this Court, following the judgments in National Insurance Co. Ltd., v. Challa Bharathamma reported in 2004 ACJ 2094 (SC) and Tamil nadu State Transport Corporation v. Natarajan reported in 2003 ACJ 1002, held that as the driver of the vehicle had contributed to the accident, he cannot claim compensation against the insurer and accordingly, allowed the appeal. The above two judgments, deal with a claim made under the Motor Vehicles Act, where it is open to the Insurance Company to raise defences that are available under the provisions of the Motor Vehicles Act. 14. In the case on hand, the first respondent, driver of the vehicle, has made a claim under the Workmen Compensation Act. Section 3 of the Workmen's Compensation Act, states that if the personal injury is caused to a workman by an 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 Chapter 2 of the Act. 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 attributed to- (i) the workman having been at the time therefore under the influence of drink of drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or (iii) the willful removal or disregard by the workman of any safety guard or other devise which he knew to have been provided for the purpose of securing the safety of workmen." 15. When a similar question came up for consideration, as to whether the driver of the Mini Door Auto, who suffered an employment injury, can claim compensation under the Workmen's Compensation Act, and whether the Insurance Company can be exonerated of its liability on the basis of the violation of policy condition, this Court in N.Senthilkumar v. S.Ramesh reported in 2008 (2) LLN 584, held that a premium has been paid to meet the requirements under the Workmen's Compensation Act and therefore, it is not open to the Insurance Company to raise the defences, which is available to it, under the Motor Vehicles Act. So saying, this Court set aside the order made by the Commissioner for Workmen, exonerating the Insurance Company from its liability and consequently, held that both the Insurance Company and the owner of the vehicle, are jointly and severally liable to pay compensation. In this context, it is useful to extract few passages from the above said judgment. "13. The decisions of the Supreme Court in Ved Prakash Garg v. Premi Devi [1997 (3) LLN 706] (vide supra) and National Insurance Company Ltd., v. Mastan [2006 (1) LLN 137] (vide supra), would squarely being out the manner in which the provisions of the Workmen's Compensation Act and the Motor Vehicles Act have to be construed having reegard to the provisins of the Act. As noted earlier, in the present case, since premium was paid, the driver of the mini auto is under insurance coverage. When premium has been paid so as to meet the requirements of Workmen's Compensation Act is it not open to the Insurance Company to raise the defence, which are available to it under Motor Vehicles Act pleading exoneration of its liability on the ground of breach of policy conditions. As the driver suffered personal injuries, during the course of and arising out of employment, while he was discharging his service obligations, the compensation payable would be squarely governed by the provisions of Workmen's Compensation Act and the insurance Company cannot be absolved of its liability. The learned Deputy Commissioner did not keep in view the statutory obligation of the insurance company to indemnify the insurer in respect of compensation payable to the driver/workman. The impugned order exonerating the insurance company from its liability suffers from perversity and vitiated by error of law and the same cannot be sustained." 16. In the light of the above decisions, the contention that the tort-feasor/first respondent cannot make a claim for compensation, against the insured and the insurer, cannot be countenanced. All that the workman has to prove is that he suffered a personal or bodily injuries, while he was working and that the accident had occurred during the course of and arising out of the employment. If the accident had occurred and that too, while doing his work, the question of mere negligence on the part of the workman, is irrelevant. The employer or insurer, cannot be exonerated from their liability, by raising a plea of negligence on the workman in discharging his duties. Even if the workmen himself was negligence in driving, leading to an accident, a claim for compensation under the Workmen's Compensation Act, 1923, would still be maintainable against the employer and the insurer, if the workman sustains a personal injury, as a result of an accident, which took place during the course of an employment. The mere fact that the accident was due to the negligence of a Workman, is not a ground to the employer or the Insurance Company liable to escape from their liability to pay compensation, under the Workmen's Compensation Act. That could be a valid defence under the Motor Vehicles Act. 17. The provisions of Motor Vehicles Act and the Rules framed thereunder, regarding restriction of number of passengers, to be carried in a vehicle, cannot be imported into the Workmen's Compensation Act, 1923 and violation of which, cannot be termed as wilful disobedience of the workman to an order expressly given, or to a rule expressly framed for the purpose of securing the safety of the workman. An order has to be expressly given by the employer, as per the terms of employment or it should be a rule expressly framed for the purpose of securing the safety of a workman under the Workmen's Compensation Act. It is pertinent to point out that the expression used in Section 3(1)(b)(ii) of the Workmen's Compensation Act, is, "order expressly given, or to a rule expressly framed". In the absence of production of any order expressly given under the Workmen's Compensation Act or a rule expressly framed under the Act, regarding the safety of the first respondent-workman, the contention of the learned counsel for the appellant-Insurance Company that there is a wilful disobedience of the instructions of the employer and therefore, the Company cannot be fastened with the liability, cannot be accepted. There is no provision in the Motor Vehicles Act or in the Workmen's Compensation Act, enabling the Insurance Company to avail both the defences that are provided in two separate enactments. Each enactment is intended to cover a different type of liability. The former relates to vicarious liability and the latter, statutory liability when there is an employee-employer relationship. In the result, the finding of the Tribunal, fastening liability on the appellant-Insurance Company, is confirmed. 18. On the quantum of compensation, the first respondent has deposed that he had sustained two fractures in the right hand and was treated in Stanley Medical College Hospital, Chennai. PW.2, Doctor, who examined the respondent/claimant, with reference to medical records, has deposed that there is a reduction in rotation of right hand by 10 degrees. He has further deposed that the first respondent would find it difficult to lift heavy objects. He has assessed the disability at 40%. Upon perusal of Ex.P3, Discharge Summary issued by the Stanley Medical College Hospital, learned Commissioner for Workmen, has found that the first respondent/claimant has sustained forearm right fracture of both bones, lacerations at right ear lobe and contusion at right knee abnormal mobility. 19. Though the respondent/claimant has renewed his licence on 02.09.2006, the Tribunal has observed that due to the disability, he could not function as driver in the same manner, but he can continue the work. The age of the respondent/claimant has been determined on the basis of Ex.P5  Driving Licence. Though the respondent/claimant did not produce any evidence to show his monthly income, the Commissioner for Workmen, having regard to the wages fixed as per G.O.2(D).No.43, fixed the monthly income of the insured at Rs.3,304.55 ( Basic Pay  Rs.2,700/- + Dearness Allowance  Rs.604.55). There is no quarrel that the vehicle in question had an Insurance Policy, covering the period between 09.01.2007 and 08.01.2008. 20. From the perusal of the above, it is evident that the Commissioner for Workmen Compensation, has taken into consideration the disability suffered by the respondent/claimant, with reference to his avocation, and assessed the loss of earning capacity, by applying the structured formula under the Workmen Compensation Act, has arrived at a compensation of Rs.1,72,030/- with interest at the rate of 12% per annum from the date of claim. 21. In view of the above, the contentions of the appellant-Insurance Company that the learned Commissioner for Workmen has erred in fixing the liability on the Insurance Company is not tenable and there is no manifest illegality in quantifying the loss of earning capacity. Hence, the Civil Miscellaneous Appeal is dismissed on both grounds. No costs. Consequently, connected Miscellaneous Petitions are also dismissed. 20.04.2010 Index: Yes skm To The Commissioner for Workmen Compensation, Deputy Commissioner of Labour, Chennai. S. MANIKUMAR, J. skm C.M.A.No.57 of 2010 20.04.2010