Point of Law : When employer has not maintained the register, claim of claimant has to be accepted and in the case on hand, claimant was having inter-state driving license to drive HTV and HPV and hence, judgment of Apex Court is aptly applicable. [Para 20]

JUDGMENT :

These two appeals are filed by the claimant and Insurance Company challenging the judgment and award dated 19.08.2013 in WCA. No. Kaa Aa Daa/Kaa Na Pa/CR-45/2011 passed by the Labour Officer and Commissioner for Workmen, Davanagere District, Davanagere (‘the Commissioner’ for short) questioning the quantum and liability.

2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

3. The claimant, in the appeal in M.F.A.1234/2014 would contend that the Commissioner has committed an error in taking the disability at 80% as against 85% assessed by the Doctor, who has been examined as P.W.3 and ought to have taken the disability at 100% when the right hand of the driver, who is having inter-state driving license for HTV and HPV is amputated. It is also contended that the Commissioner ought to have taken the income at Rs.10,000/-per month and instead, the Commissioner taken the income at Rs.4,000/-per month and failed to take note of the daily allowance of Rs.100/-per day. It is further contended that the Commissioner failed to take note of Exs.P10 to P12 which clearly establishes that he is suffering from functional disability of 100% and photographs Exs.P10 to 12 discloses that an amputation was done to his right hand.

4. The learned counsel for the claimant in his oral submission also vehemently contend that the contention of the Insurance Company that the claimant himself is negligent and he is entitled for compensation cannot be accepted.

5. The learned counsel for the claimant, in support of his argument relied upon the judgment of this Court passed in M.F.A.NO.1936/2017 dated 24.07.2019 and brought to notice of this Court Para No.16, wherein this Court has discussed with regard to the claim made under M.V. Act as well as the E.C. Act and held that negligence on the part of the workmen attracts only under the provisions of the Motor Vehicles Act,1988 and the said provision has no bearing on the facts of the case on hand. The provisions of the E.C. Act does not envisage a situation where the compensation payable to an injured or deceased workman can be reduced on account of contributory negligence.

6. The counsel also relied upon the judgment of the Apex Court in the case of JAYA BISWAL AND OTHERS VS. BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED AND ANOTHER reported in (2016) 11 SCC 201, wherein also the Apex Court held that the compensation under Employees Compensation Act, 1923 cannot be reduced for contributory negligence and E.C. Act and M.V. Act is distinguished in this regard.

7. Per contra, learned counsel appearing for the appellant-Insurance Company in M.F.A.No.2414/2014 in his argument vehemently contend that the Commissioner has no jurisdiction to entertain the claim petition in view of the amendment brought into the Employee’s Compensation Act, 1923 as amended by Act 45 of 2009 which came into force with effect from 18.01.2010 and in view of Section 20 of the said Act in particular. The counsel also would submit that the percentage of disability taken by the Commissioner is on the higher side i.e., 80% for amputation of his right hand and though the Doctor has been examined as P.W.3, his evidence is very clear that the injured-claimant was negligent and if proper treatment is taken, he would not have been subjected for amputation and the same has not been considered by the Commissioner and computing the disability at the rate of 80% is not justified and the compensation awarded towards medical expenses is also on the higher side. The counsel would further contend that though P.W.1 admitted in his cross-examination that he could examine his employer, failed to examine his employer and in the absence of positive evidence, the question of proving the factum of employment and relationship of employer and employee does not arise.

8. In reply to the argument of the learned counsel appearing for the appellant-Insurance Compa