MISCELLANEOUS FIRST APPEAL NO. 20536 OF 2013 (WC)

THIS MFA IS FILED UNDER SECTION 30(1)(A) OF WC ACT, 1923, PRAYING TO CALL FOR RECORDS IN CASE W.C.NO.115/2007, ON THE FILE OF THE COMMISSIONER FOR WORKMEN’S COMPENSATION DIV II HUBLI AND SET ASIDE THE JUDGMENT AND ORDER DATED 17.11.2012 BY ALLOWING THIS APPEAL WITH COST & ETC.

THIS MFA COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

ORAL JUDGMENT

1. Challenging judgment and award dated 17.11.2012 passed by Commissioner for Workmen’s Compensation Div II Hubballi (‘Commissioner’ for short), in WC no.115/2007, this appeal is filed.

2. Sri MK Soudagar, learned counsel for appellant submitted, appeal was by insurer challenging finding of Commissioner on liability of insurer. It was submitted that as per respondent no.1-workman, he was employed as driver of Lorry no.KA-24/B-1896 belonging to respondent no.2 on wages of Rs.10,000/- per month in addition Rs.50/- per day as bhata. It was submitted as per instruction of employer when he was driving vehicle on 21.11.2006 from Sandoor to Yallapur on Arbail Ghat, along with load of iron/manganese ore, lorry dashed against another parked lorry. In accident, driver/workman sustained fracture of right tibia and fibula and despite treatment he did not recover fully and sustained permanent physical disability leading to loss of earning capacity. Therefore, he filed application under provisions of Employees' Compensation Act, 1923, for compensation against employer and insurer.

3. On appearance, claim petition was opposed on all grounds based on which Commissioner framed following issues:

“1. CfðzÁgÀ£ÀÄ, ¥ÀæwªÁ¢-1 EªÀgÀ §½ CªÀgÀ ªÁºÀ£ÀzÀ°è qÉÊæªÀgÀ ¸ÉêÉAiÀÄ°èzÁÝUÀ PÀ®¸ÀzÀ ªÉ¼É PÉ®¸ÀzÀ ¥ÀjuÁªÀÄ¢AzÀ C¥ÀWÁvÀÄAmÁV ±Á±ÀévÀ CAUÀ£ÀÆå£ÀvÉ ¥ÀqÉ¢zÁÝ£ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¹zÁÝ£ÉAiÉÄÃ?

2. CfðzÁgÀ¤UÉ C¥ÀWÁvÀ PÁ®PÉÌ 31 ªÀµÀð ªÀAiÀĸÀÄì ªÄÀvÀÄÛ ¥ÀæwªÁ¢-1 EªÀgÀÄ gÀÆ.10000-00 ªÀiÁ¹PÀ ªÉÃvÀ£À ªÀÄvÀÄÛ gÀÆ.50-00 ¢£À¨sÀvÉå ¥ÁªÀw¸ÀÄwÛzÀÝgÀÄ JAzÀÄ ¸Á©ÃvÀÄ¥Àr¹zÁÝ£ÉAiÉÄÃ?

3. CfðzÁgÀ£ÀÄ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð£ÉAiÉÄÃ? ºÁVzÝÀgÉ ¥ÀjºÁgÀ ªÉÆvÉÛµÀÄÖ ¥ÁªÀw¸À®Ä ¨sÁzsÀå¸ÀÜgÁgÀÄ?

4. CfðzÁgÀ£ÀÄ ¥ÀjºÁgÀ ªÉÆvÀÛzÀ ªÉÄÃ¯É zÀAqÀ ªÀÄvÀÄÛ §rØ ºÀt ¥ÀqÉAiÀÄ®Ä CºÀð£ÉAiÉÄÃ? zÀAqÀzÀ ªÀÄvÀÄÛ §rØ zÀgÀ JµÀÄÖ? ¥ÁªÀw¸À®Ä ¨sÁzsÀå¸ÀÛgÁgÀÄ?

5. DzÉñÀ K£ÀÄ?”

4. Workman along with Dr.MC Bellad deposed as PWs1 and 2 and got marked documents at Exs.P1 to P8. On other hand, official of insurer and RTO were examined as RWs1 and 2 and Exs.R1 to R3 were got marked.

5. On consideration, Commissioner held relationship of employer and employee was established. Occurrence of accident in course of employment and out of employment was established and claimant was entitled for compensation of Rs.1,74,703/- with simple interest at 12% per annum and holding insurer liable to pay same. Aggrieved, insurer was in appeal.

6. It was submitted, Hon'ble Supreme Court in case of Beli Ram v. Rajinder Kumar and Anr., (2020) 11 S.C.R. 31, held that it was responsibility of owner of vehicle/employer to verify validity of driving license of driver employed by him. Since workman in question was driving a heavy goods vehicle, whose driving licence was valid upto 28.02.2005 and expired as on date of accident was renewed much later i.e., from 23.04.2009. Therefore, it could not be said that accident had occurred out of employment.

7. It was submitted Hon’ble Supreme Court had held in Beli Ram’s case (supra) that in absence or failure by employer in duty to verify validity as well as currency of driving licence as on date of accident, insurer could not be held liable and sought for allowing appeal.

8. On other hand, Sri SS Bawakhan, learned counsel for respondent-workman opposed appeal. It was submitted, there was no dispute about workman having driving licence to drive heavy goods vehicle. However, same had expired on 28.02.2005, but application for renewal was granted on 23.04.2009. Though, accide