Since

MFA.no.20589/2013

and

MFA.no.21540/2013 appeals in respect of awards

under

Motor

Vehicles

Act

are

de-linked,

only

MFA.no.25697/2011 and MFA.no.25698/2011 are taken

up for disposal.

Challenging common judgment and award

dated 30.08.2011 passed by Workmen’s Compensation

Commissioner,

Sub

Division-II,

Bellary,

in

WCA.CR.nos.13/2010

and

(hereinafter

referred to as ‘Commissioner’), these appeals are

filed by insurer.

3.

Brief facts as stated are that Sri.Prakash

and

Sri.M.Shivakumar

(hereinafter

referred

to

as

‘Workman’) claimed to be working as driver and

cleaner

respectively

in

lorry

belonging

to

P.R.Gowthaman

(hereinafter

referred

to

as

‘Employer’), insured with Divisional Manager, New

India

Assurance

Company

Limited,

Bellary,

(hereinafter referred to as ‘Insurer’) on monthly

salary Rs.5,000/- plus Rs.50/- per day as daily Bhatta

in respect of workman no.1 and Rs.4,000/- per month

- 4 -

and Rs.50/- per day as daily Bhatta in respect of

workman no.2.

4.

It was further submitted that on instruction

of employer, while they were on duty on 12.12.2009,

in empty tanker lorry, on NH-19, near Siddapura

cross, it dashed against auto bearing registration

No.KA-34/A-723. In said accident, workmen sustained

injuries.

Despite

taking

treatment,

they

did

not

recover

fully

and

sustained

permanent

physical

disability.

Claiming

compensation

they

filed

applications

under

Section

22

of

Workmen’s

Compensation Act against employer and insurer.

5.

On

service

of

notice,

employer

entered

appearance and admitted employment and payment of

wages. It was also stated that vehicle was insured

with insurer and award, if any, may be passed against

insurer. Insurer filed objection disputing entire claim

averments.

6.

Based on pleadings, Commissioner framed

issues and thereafter recorded evidence of workmen

as PW.1 and PW.2 and Dr.K.Lakshminarayana as PW.3.

- 5 -

Exhibits P1 to P12 were marked. In rebuttal, insurer

got marked copy of insurance policy as Ex.R2(1) with

consent.

7.

On consideration, Commissioner held that

relationship of employer and employee and occurrence

of

accident

during

course

of

employment

was

established and determined age, income and disability

and awarded compensation as follows:

CfðzÁgÀgÀ ºÉ¸ÀgÀÄ

ªÉÃvÀ£À ¥Àæw

ªÀiÁºÉ gÀÆ.

ªÀAiÀĸÀÄì

gÉ°ªÀAmï

¥sÁåPÀÖgï

PÀ¼ÉzÀÄPÉÆAqÀ

UÀ½PÁ

¸ÁªÀÄxÀåð

¥Àæw±ÀvÀ

CºÀð

¥ÀjºÁgÀ

zsÀ£À

gÀÆ.UÀ¼À°è

¥ÀæPÁ±À ZÁ®PÀ

4000

25

216.91

25

1,30,146

JA. ²ªÀPÀĪÀiÁgÀ, QèãÀgï

3500

24

218.47

20

91,757

8.

Aggrieved thereby, insurer is in appeal.

9.

Sri.

N.R.Kuppelur,

learned

counsel

for

appellant

–

insurer

submitted

that

Commissioner

committed grave error in passing impugned award. It

was submitted workman no.1 – driver was driving

tanker which was used for carrying oil/petroleum and

there is no licence or endorsement to drive hazardous

goods vehicle as on date of accident which is required.

It was submitted that as per Ex.P7 – driving licence of

- 6 -

workman

no.1,

endorsement

had

expired

on

31.12.2008,

accident

occurred

on

12.12.2009,

therefore award was perverse.

10. Even on quantum, it was submitted that

workman

had

sustained

fracture

of

left

clavicle.

However, PW-3-Dr.K.Lakshminarayana had assessed

functional disability at 30% and Commissioner has

considered disability as loss of earning capacity and

passed exorbitant award. It was further submitted that

PW-3 was not an orthopedician and there were no

records to show that he had administered treatment to

workman. Therefore, based on oral evidence of PW-3,

Commissioner

had

passed

award

and

same

was

perverse.

11. In

MFA.no.25698/2011,

workman

no.2

sustained fracture of right radius, PW-3 assessed

disability at 25%. Commissioner considered same at

20% which was excessive and perverse on grounds

urged

in

connected

case,

therefore

following

substantial questions of law arise for consideration:

- 7 -

“1.

Whether Commissioner was justified in

holding insurer liable even when driver

of

insured

vehicle

did

not

have

endorsement on its driving licence to

dr