NEW INDIA ASSURANCE COMPANY LIMITED BANGALORE Vs. DANAPPA

JUDGEMENT

(1.) THE appellant-Insurance Company, which was respondent 2 before the Workmen's Compensation Commissioner at Chitradurga in WCA. CR. No. 26 of 2000, has challenged the order dated 23-12-2002 since, according to it, the respondent 1-claimant was not working as cleaner or cleaner-cum-conductor or conductor-cum-cleaner under the second respondent and the compensation awarded is not proper.

(2.) FACTS, giving rise to the present appeal, are: The second respondent is the owner of bus bearing No. KA 16/4009, in which passengers are carried on hire. According to the claimant, he was employed by the second respondent as conductor-cum-cleaner on the said vehicle. He was being paid Rs. 60/- per day besides bhatta for working as conductor, and Rs. 40/- per day for working as cleaner. When he was working as conductor in that bus on 19-1-2000, it met with an accident near P. D. Kote Cross due to its rash and negligent driving and in that, he sustained injuries during the course of his employment. So, he claimed compensation stating that the vehicle had insurance coverage as on the date of accident and as such, the Insurance Company as well as second respondent are jointly and severally liable to pay compensation. The respondent 2-owner of vehicle, in his objections, though denied the statement made by claimant in para No. 2 as false, while stating true facts pleaded that the claimant was working as conductor-cum-cleaner on his bus getting Rs. 50/- per day as daily wages including 'bhatta', but denied para No. 3 of the claim petition relating to accident and his liability besides sustaining injuries by the claimant, though admitted insurance of the vehicle, and requested to dismiss the petition. In its objections, the appellant-Insurance Company denied working of the claimant as cleaner or conductor or conductor-cum-cleaner under the second respondent on the vehicle on the date of accident and, even otherwise, the claimant was not qualified nor eligible to be conductor nor the respondent 2-owner could engage him as conductor against the provisions of Motor Vehicles Act, 1988. According to it, the claimant was only a passenger and as such disputed its liability to pay compensation and requested to dismiss the claim petition. The claimant has examined himself as P. W. 1, doctor as P. W. 2 and got marked 7 documents in support of his claim. The respondent 2-owner did not examine himself or any witness, nor got marked any document. On the other hand, the appellant-Insurance Company has examined a witness and got marked insurance policy record. On considering the evidence, the Commissioner has upheld the claim of the claimant and awarded compensation of Rs. 90,860/- and directed the appellant-Insurance Company to pay the same. So, the appellant-Insurance Company is before this Court.

(3.) IT was vehemently argued for the Insurance Company that when the claimant himself has stated in his complaint before Police that he was working as a 'cleaner under the second respondent and when no documentary evidence is produced and when even the second respondent had not stepped into the witness-box to say that the claimant was working as a conductor-cum-cleaner or cleaner-cum-conductor and not as cleaner, the Commissioner was not right in holding that the claimant was working as conductor-cum-cleaner under the second respondent, even if assumed that the claimant was working under the respondent 2 at the time of accident, as admittedly the claimant was not qualified to possess conductor's licence and in fact, he was not holding conductor's licence and as such, neither he could have been engaged as conductor by the second respondent, nor he could have worked as conductor under the second respondent and that, at any rate, the compensation awarded by the Commissioner is not at all proper when the evidence on record is considered carefully and as such, requested to interfere with the impugned order. On the other hand, the learned Counsel for the claimant and respondent 2 have supported the impugned order. Perused the records carefully.