Point of Law: Workmen - Mere negligence of the workman cannot be regarded as wilful disobedience by the workman. “wilful disobedience” presupposes a conscious action, whereas a thing said to be occurred by negligence cannot presuppose a conscious action if an accident is occurred in a spur of moment

JUDGMENT :

HANCHATE SANJEEVKUMAR, J.

Though this appeal is listed for orders today, with the consent of both the parties, the appeal is taken up for final disposal.

2. The present appeal is filed by the claimant under Section 30(1) of Employees Compensation Act, 1923 (hereinafter referred to as ‘E.C. Act’ for short) calling in question the judgment and award passed in E.C.A. No.6/2017 dated 14.09.2018 on the file of Principal Senior Civil Judge-Cum-M.A.C.T.-IV, Hosapete (hereinafter referred to as ‘Trial Court’ for short), whereby the claim petition filed by the appellant came to be dismissed.

3. Facts germane for disposal of this appeal are as under:

4. It is stated that the appellant was working as a driver in lorry bearing Reg.No.KA-02/AD-545 which is under the ownership of respondent No.1 and insured with respondent No.2-Insurance Company. It is stated that the appellant was receiving salary of Rs.15,000/- p.m. with batta of Rs.300/-per day and when this being the fact, on 25.02.2015 at about 12.30 p.m. when the appellant was on duty as a driver in the said lorry and as per the direction of respondent No.1-owner and when he was proceeding on NH-13 road near Balaji Daba, M.M.Halli village of Hosapete taluk he lost control over the lorry due to unavoidable circumstances as the gear lever of the truck got stuck and hit the opposite lorry bearing Reg.No.KA-06/C-5105 and as a result of the said accident the appellant sustained severe multiple crush injuries on his right leg resulting in amputation. Therefore, for having sustained injuries in the said accident, the appellant has filed claim petition before the Trial Court but the Trial Court has dismissed the claim petition of the appellant on the ground that the accident was caused due to the negligence on the part of the appellant himself.

5. Learned counsel for the appellant submitted that dismissal of the claim petition of the appellant is not correct and is unsustainable. The learned counsel further submitted that due to circumstances beyond his control, the lorry gear lever got stuck and resulted in the accident. Therefore, he submits that there is no wilful disobedience on the part of the appellant but it is on account of unavoidable circumstances and due to mechanical failure of the truck as stated above the accident was caused and which accident occurred in the course of employment under respondent No.1-owner. Therefore, the appellant is entitled for compensation under E.C. Act. But in this regard without appreciating the scope and ambit of E.C. Act, the Trial Court has dismissed the claim petition which is not correct and therefore prays for allowing the appeal by granting compensation.

6. On the other hand, learned counsel for respondent No.2-Insurance Company submitted that the accident was caused due to the negligence on the part of the appellant himself and therefore the appellant is not entitled for compensation under the provisions of the E.C. Act. Therefore, it is rightly observed by the Trial Court that the appellant is not entitled for any compensation and dismissed the claim petition which calls for no interference and therefore prays to dismiss the appeal.

7. Upon hearing the submissions and perusing the records, the following substantial question of law arises for consideration:

Whether the employer is liable to pay the compensation or the insurer as the case may be, where an employee had sustained bodily injuries or death due to the negligence other than the conditions enumerated in the proviso to Section 3(1) of E.C. Act which has occurred arising out of and in the course of employment?

8. In the present case, the Trial Court has dismissed the claim petition on the ground that the appellant has driven the lorry in a rash and negligent manner and came to the conclusion that there is self negligence on the part of the appellant himself. The appellant has filed claim petition by invoking Section 22 of the E.C. Act for claiming compensation. Section 22 of E.C. Act pre