POINT OF LAW: scheme of the Act of 1923 is that when ever, a workman gets injured during the course of his employment, his employer is to pay the compensation. There is no doubt that the respondent/driver sustained injury, in course of his employment and that is why, he is entitled to get compensation.

JUDGMENT :

Heard Ms. R. D. Mozumdar, the learned counsel appearing for the appellant as well as Mr. N. Sarkar, the learned counsel appearing for the respondent.

2. This is an appeal u/s 30 of the Workmen Compensation Act, 1923 against judgment dated 05.05.2014, passed by the Commissioner, Employees Compensation, Nagaon in NWC Case No. 97/07 awarding compensation of Rs. 2,015,40/-to the respondent no. 1.

3. The facts of the case in nutshell is like this: on 16.06.2007, the claimant was driving one vehicle bearing registration No. AS 03F/009 (truck). The vehicle was loaded at Guwahati with sanitary tiles, mango fruit juice etc. The goods were to be unloaded at Jorhat, while the vehicle reached Gomothagaon, in the National Highway No. 37, suddenly the deferential of the vehicle broke down and the front wheels came out from the chassis of the vehicle. The vehicle turned turtle on the road side. The accident took place at about 4 am. The claimant/driver sustained injury on his right forearm and over the chest wall. He was taken to B.P. Civil Hospital, Nagaon for treatment with the help of Traffic Police. Nagaon Police, Traffic Branch, registered a case viz Nagaon P.S. Traffic Branch GDE No. 218, dated 16.05.2007. The owner of the vehicle informed about the accident but he did not pay any compensation.

4. The issues framed by the Commissioner, Workmen Compensation are

(i) Whether the claimant petitioner Sri Manoj Nath is an employee as per law ?

(ii) Whether the claimant Sri Manoj Nath has sustained injury in a accident during course of arising out of his employment under the opposite party no. 1?

(iii) Whether the injury sustained by the petitioner caused any permanent physical disability and if so, whether such disablement resulted any loss of his earning capacity? What would be the extent of such loss?

(iv) What would be the due amount of compensation due based on the monthly wages and age of the petitioner.

5. The respondent examined two witnesses and finally an amount of Rs. 2,0,15,40/-was awarded as compensation, after holding that the accident occurred during the course of employment of the respondent.

6. Being aggrieved by the aforesaid judgment the present appeal has been preferred.

7. The learned counsel for the appellant has submitted that the learned Commissioner failed to appreciate that the Workmen Compensation Act, 1923 stipulates that the insured (owner of the involved vehicle) is to satisfied the award in terms of the statutes and in accordance with law. Since the provision of the statute would always prevail over any contract entered into between two individuals. Insurance Company is only to indemnify/reimburse the awarded amount to the owner of the vehicle concerned (if any) after the amount stands paid by the said owner/insured concerned.

8. Mrs. Mozumdar further submitted that the learned Commissioner failed to appreciate that as per the provisions of the MV Act 1988 the claimant can chose either options from amongst the two i.e either the MV Act, or the Workmen Compensation Act not both. Mrs. Mozumdar clarified that under the Workmen Compensation Act “employee” is not the “third party” and therefore, the said employee or his representative choosing the provision of workmen Compensation is entitled to receive the compensation amount from the insured/employer at the first instance and not from the Insurance Company as wrongly held, by the learned Commissioner.

9. The learned counsel for the appellant, has submitted that the driving license of the injured which was exhibited as exhibit 7 discloses that the driver was 17 years old on the date of the accident, and therefore, he was not entitled to have valid driving license. Mrs. Mozumdar further submitted that the respondent was the driver of the vehicle and therefore, he cannot be treated as a third party and therefore the Insurance Company is not liable to pay any compensation to him.

10. Per contra, the learned counsel for the respondent relied upon a decision of the Hon’ble