THE MANAGER Vs. SOWKATHALI AND ORS.

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been filed by the appellant/New India Assurance Company against the award, dated 21.02.2007 made in W.C. No. 514 of 2005, on the file of the Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Tiruchirappalli.

(2.) The first respondent/petitioner filed a claim petition stating that on 29.11.2005, while he was travelling as an alternative/shift driver in the Auto bearing Registration No.TN-45-AD-1945, belonging to the second respondent/first respondent, insured with the appellant/New India Assurance Company, carrying goods i.e., 10 wet grinders from Tiruchirappalli to Jayankondam, the said Auto was proceeding about 1 Km on the East of Kannikkaipuram Railway Gate, a lorry driven by its driver, came in the opposite direction, in a rash and negligent manner. While so, in order to avoid head on collusion, the first respondent/petitioner swerved the Auto towards left, as a result of which, the Auto was capsized. In the impact, the first respondent/petitioner was caught under the Auto and he sustained fracture in his left foot. Immediately, he was taken to Sri Muthu Nursing Home, Woraiyur and admitted as an in-patient, wherein, he had undergone operation by removing left foot. The first respondent/petitioner was aged 26 years, at the time of accident and his agreed wage was Rs. 150/- per day. Due to the amputation on his left foot, he was unable to drive the auto permanently and he has been thrown out of employment. Since the accident had occurred during the course of employment of the first respondent/petitioner under the second respondent/first respondent and the appellant/New India Assurance Company being the insurer of the vehicle, both are jointly and severally liable to pay compensation to the first respondent/petitioner under the Workmen's Compensation Act, 1923. The first respondent/petitioner claimed a sum of Rs. 5,00,000/- as compensation for the injuries sustained by him.

(3.) The appellant/second respondent-New India Assurance Company filed a counter-affidavit and denied the age, income and the manner of accident and stated that there was no employer employee relationship and they are not liable to pay compensation. The first respondent/petitioner was not an alternative shift driver of the goods carrying Auto as mentioned in the claim petition. As per the Motor Vehicles Act and Rules, there is no provision for alternative driver in the first respondent/petitioner's Auto. Under these circumstances, the appellant/second respondent has not collected any premium for alternative driver and prayed for dismissal of the claim petition.