CIVIL APPEAL 21171 of 2012 on 29 December 2011

JUDGMENT

Aggrieved by the judgment and decree dated 29.12.2011 passed by the Court of Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division No.2, Ballari in WCA/CR No.68/2009, the appellant – insurer has preferred this appeal.

2. I have heard the learned counsel appearing for the parties.

3. The accident in question is not in dispute so also the involvement of the offending vehicle insured with the appellant – insurer.

4. It is the submission of the learned counsel for the appellant insurer that the Labour Officer and Commissioner for Workmen’s Compensation did not appreciate the fact that the respondent No.1 drew the goods auto-rickshaw which was transporting goods at the time of the accident, without holding valid and effective driving licence. As such, there is a breach of conditions. Under such circumstances, the Commissioner ought not to have fixed the liability on the appellant – insurer. He further submitted that the Commissioner has committed a grave error in assessing the loss of earning capacity by taking 100% disability though as per part 2 of schedule 1 appended to Workmen’s Compensation Act, the loss of earning capacity in case of amputation of right upper limb above wrist joint is to the extent of 60% to 70%. On these grounds, he prayed to allow the appeal and to set aside the impugned order of the Commissioner.

5. Per contra, learned counsel appearing on behalf of the respondent – claimant vehemently argued and submitted that the respondent No.1 claimant is working as a driver and there is amputation of right upper limb above wrist joint and now he is not in a position to do the driving work and as such, Commissioner has taken 100% disability due to amputation of his right fore arm above the wrist and by taking Rs.4,000/- per month by applying the factor of 219.95 has awarded the compensation of Rs.5,27,880/- and the said compensation is just and proper. He further submitted that though the driver of the goods auto-rickshaw was not holding the transport endorsement, but he was having licence to drive only LMV non-transport vehicle. Under such circumstances, in view of the decision of the Hon’ble Apex Court in case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668 that the Insurance Company is liable to pay the compensation. On these grounds, he prayed to dismiss the appeal.

6. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and I have perused the records.

* corrected vide chamber order dated 05.02.2019 Sd/- (BAPJ)

7. Though it is the contention of the learned counsel for the appellant – insurer that the driver of the auto-rickshaw bearing registration No.KA-34/8157 was not holding valid and effective driving licence to drive the goods vehicle. But admittedly, he was having a licence to drive non-transport (light motor vehicle). It is well settled principles of law by the Hon’ble Apex Court in the case of Mukund Dewangan that if he is having a non-transport driving licence, then under such circumstances, no endorsement is required for the purpose of driving the transport vehicle.

8. Keeping in view the ratio laid down in the above decision, I am of the considered opinion that the contention taken up by the learned counsel for the appellant in this behalf does not stand and same is rejected.

9. The second contention taken by the learned counsel for the appellant – insurer is that the amputation of right upper limb above wrist joint is covered by Sl. No.4 Part 2 of Schedule 1 appended to Workmen’s Compensation Act. As such, the earning capacity will be only 60% to 70%.

10. As could be seen from the order of the Commissioner, Commissioner by taking 100% disability has assessed the compensation. But as could be seen from Schedule 1, Part 2 at Sl. No.3 for amputation form (20.32 cms.) from tip of acromion to less than (11.43 cms.) below tip of olecranon – 70% and not 100%. Even if an amputation is there, through shoulder joint, then under such circumstances, it will be 90% not 100%.

11. Keeping in view the above said Schedule, the Commissioner ought to have adopted 70% disability instead of 100%. Though the learned counsel for the respondent No.1 – claimant contended that the claimant was working as a driver and because of the amputation now he is not in a position to drive the goods auto- rickshaw. Under such circumstances, 100% disability has to be assessed. But when the case has been filed under the Workmen’s Compensation Act and the Workmen’s Compensation Act determines the percentage of disability as per schedule 1, beyond that the Commissioner as well as this Court cannot proceed.

12. Keeping in view the above said facts and circumstances, I feel that 70% disability is taken and if the income of the petitioner is taken at the rate of Rs.4,000/- and by applying the factor 219.95, the respondent – claimant is entitled to an amount of Rs.3,69,516/- (Rs.4,000 X 60 X 219.95 X 70% ÷ 100) with 12% interest from 30 days after the date of the accident till deposit.

Accordingly, the appeal is allowed in part. The judgment and award dated 29.12.2011 in WCA/CR No.68/2009 passed by the Court of Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division No.2, Ballari is modified as indicated above.

The amount in deposit may be transmitted to the jurisdictional Court which is *not*having a power under the Workmen’s Compensation Act and the same may be disbursed in accordance with the order of the Court below.

The excess amount in deposit, if any, may be ordered to be refunded to the appellant – insurer on proper identification and acknowledgment.

Sd/- JUDGE

Rsh

* deleted vide chamber order dated 05.02.2019 Sd/- (BAPJ)