JUDGMENT

MFA.No.5500/2012 is filed by the Insurance Company challenging the judgment and award dated 21.02.2012 passed in WCA/FC/CR.No.17/2011 by the Labour Officer and Commissioner for Workmen’s Compensation, Sub-division-6, Bangalore, that the claimant was not driver and there is no employer and employee relationship. Further alternatively the quantum of compensation awarded by the learned Commissioner is on the higher side and also higher percentage of disability is held by the learned Commissioner.

MFA.No.5117/2014 is filed by the claimant challenging the aforesaid judgment and award for seeking enhancement of compensation.

2. The factum of accident is not in dispute.

3. Heard the arguments from both sides and perused the records.

4. Learned counsel for the Insurance Company submitted that the claimant is a coolie by profession as it is reflected in the case sheet of the Victoria Hospital. Therefore, the claimant was not working as a driver under the employment of respondent No.1-owner of autorickshaw. Therefore, the claim petition is not maintainable under the Employee’s Compensation Act, 1923. Alternatively, it is contended that the doctor has stated that the claimant had suffered 15 to 16% of physical disability towards whole body, but the learned Commissioner has considered it as 47%, which is on the higher side. Therefore, prays to reduce the quantum of compensation.

5. On the other hand, learned counsel for the claimant submitted that the claimant was working as a driver in the autorickshaw bearing Reg.No.KA-24-1972 under the employment of respondent No.1-owner and it is also reflected in the complaint lodged before the police and also the claimant has produced his driving licence. Therefore, submitted that it is proved that the claimant was working as a driver in the autorickshaw. Further submitted that the claimant had suffered fracture of left leg tibia and fibula bone in the accident and it is amounting to 100% of functional disability affecting loss of earning capacity. Therefore, prays to hold 100% of functional disability. Hence, prays for enhancement of compensation.

6. In the present case, it is the averment made by the claimant that he was working as a driver in the autorickshaw under the employment of respondent No.1- owner of the autorickshaw. Due to the accident occurred while he was driving the autorickshaw, the autorickshaw was capsized and sustained injuries to the left leg. Considering the documentary evidence placed before the learned Commissioner that in the complaint lodged by the claimant at the very initial point of time as the complaint cannot be said to be belated on the same day soon after the accident, the claimant stated that he was working as a driver in the autorickshaw under the employment of respondent No.1-owner of autorickshaw. Further more, the claimant has produced the driving licence to say that he was holding driving licence to drive LMV. At the same time upon considering the case sheet of the Victoria Hospital, in which, the profession of the claimant is shown as coolie.

7. Upon considering these two evidences on record, after the accident when the claimant was admitted in the hospital, there may be chances of writing different version as stated by the informant to the hospital. Always it cannot be expected to state the exact profession in the case sheet in the hospital who records when the injured is admitted in the hospital who belongs to lower strata in the society. Therefore, just because, in the discharge summary, it is stated as coolie only, but whereas at the very initial point of time while filing complaint before the police, the claimant has stated that he was working as a coolie, more over, the driving licence is produced, which shows that the claimant was holding driving licence to drive LMV.

8. Therefore, considering the evidence on record on all its preponderance of probabilities, it is proved that the claimant was working as a driver under the employment of respondent N