BEFORE SH. S.C YADAV, COMMISSIONER (UNDER EMPLOYEES’COMPENSATION ACT, 1923) LABOUR DEPARTMENT, GOVT. OF N.C.T. OF DELHI 5, SHAM NATH MARG, DELHI-110054 No.ECI98INW/I7/ 9. Dated: 26 16q]60 ) In the matter of: Mohammad Arif, S/o Jan Mohammad, Ro Village Hiriday Rampur, Post Lokpur, Chhibramau, Kannauj, Chhibramau, Uttar Pradesh — 209721 t Versus - Sh. Bharat Pahwa, S/o late Sh. K.L. Pahwa, CW-153, Sanajay Gandhi Transport Nagar, Delhi — 110042 2. M/s The New India Assurance Company Ltd., 4-129, 2nd Floor, DC House, Satguru Ram Singh Marg, Block J, Kirti Nagar, New Delhi - 110015 Respondents ORDER 1. Vide this order, I shall dispose of the application dated 17.07.2017 for seeking injury compensation under section 22 of The Employee's Compensation Act, 1923. Appellant Md. Arif claimant in this case had filed an appeal against the order dated 27/09/2017 passed by Ld. Commissioner before Hon'ble High Court of Delhi by way of FAO 127/2018 and Hon’ble Court vide order dated 28/05/2018 remanded the case to CEC for adjudication on merits. Accordingly the case has been heard and decided accordingly on merits of the case. + The claimant has been stated that he was employed as driver on vehicle bearing no. HR-55-P-6453-Truck (12 tyre) owned by respondent no. 1. On 29. 06.2015, he Was posted as driver on the vehicle and he met with an accident resulting thereby he sustained injuries all over his body especially on his abdomen, mouth Gaw) and his left knee out of and during the course of employment. On this trip the vehicle was returning from Haldia (West Bengal) to Delhi having loaded plastic grain therein. On 29.06.2015 (Night) at about 02:00 A.M., he driving the vehicle and When the vehicle was a short of 02 to 03 kilometers from Pana Gah, it met with an accident. A vehicle which was heavily loaded was going ahead of this vehicle. ‘The claimant sought a passage from that vehicle. When he was trying to overtake that vehicle, the driver of that vehicle instantly swerved that vehicle towards theclaimant's vehicle. The claimant to escape hit in this vehicle swerved his vehicle towards left side but there was uneven road and the vehicle lost its balance. It rammed into a road side tree. The cabin of the vehicle was smashed and stecring wheel drove into his abdomen. His entire jaw was uprooted and his left knee was broken. Public came from the nearby Dhabas. He remained entrapped inside the cabin for about half an hour. Police came and he was pulled out fom the entrapped condition by breaking open the window of the truck. He was taken to Hospital at Burdwan. He remained there for about 24 hours. Sensing the gravity of jury he was shifted to Government Hospital, Kanpur. He remained admitted for about 15 days. Some operations were conducted there. Still the treatment there was not up to the mark and to buttress his treatment he was shifted to private hospital — Anurag Hospital, Kanpur. He remained admitted there for about 45-50 days. He was operated upon there as well. Thereafter, he was discharged. He has incurred a huge amount on his treatment. Further he stated that Aruna Asaf Ali Govt. Hospital Medical Board assessed 22% permanent (physical impairment in relation to his abdomen and his lower jaw) but after this accident he is not in a position to do any work of his capacity and has become 100% disabled for the purpose of his employment as a driver as he has become incapable of driving HMY vehicle due to injuries particularly due to injuries to his abdomen, mouth (jaw) and left knee. His eaming capacity has been totally reduced. It was further stated that the vehicle bearing No. HR-55-P-6453-Truck was owned by respondent no.I at the time of accident and it was validly insured with respondent no. 2 i.e. M/s New India Assurance Company Ltd., for a period from 04.01.2015 to 03.01.2016 and an additional premium was charged by the respondent no..2 from respondent no. 1 under the Employee’s Compensation Act, 1923. The claimant has submitted that he was drawing wages @ Rs. 8000/- per month and Rs. 250/- per day as food allowances and was aged 26 years at the time of his accident, The respondent no. is having the notice of the accident since the day of its occurrence and it has been made known to the claimant that the Insurance Company had been informed immediately after the accident took place. The claimant has been stated that he was driver by profession and he has become totally disabled as law settled by the Hon’ble Supreme Court of India in case titled as Pratap Narain Singh Vs. Stinivasa Sabata, 1976 ACJ 141. The claimant was employed on the vehicle and the accident caused out of and during the course of his employment. The Applicant is entitled to compensation to the extent of 100% disability and as per section 4(1) (c) & 4(1) (d) of the Employee's Compensation Act he is entitled for temporary and permanent disablement along with interest @ 12% p.a. from the date of accident till realization and penalty to the extent of 50%. . The summons were sent to the respondents with the direction to appear and to file written statements/documents, if any in their defence. The respondent no. 1 has filed written statement stating therein that the vehicle bearing no. HR-55-P-6453 was fully insured with the respondent no. 2 and the liability of driver is also covered under the policy. It was further submitted that on 29.06.2016, the claimant was émployed with him as driver on his vehicle bearing. On 17/07/2019 on the bi no, HR-55-P-6453 and when the claimant was on duty he met with an accident and sustained personal injuries. It was further submitted that the claimant drawing wages Rs. 12,000/- per month including all allowances towards food ete. It has been further submitted that the Insurance Company was informed about the said accident, just after the accident was occurred and respondent no. 2 has paid own damage claim of the vehicle to him. . The respondent no. 2 also filed their written statement wherein denied all the contents of the claim application and their liability for payment towards compensation to the claimant except to the extent that the vehicle bearing no. HR- 55-P-6453 was insured them vide policy no 31170131140100006609 valid from 04/01/2015 to 03/01/2016, rest of the other contents have been denied in toto. is of the pleadings of the parties, the following issues were framed for adjudication: 1) Whether accident resulting to injury to the claimant is caused out of and during the course of employment and if So, to what amount of injury compensation, the claimant is entitled? 2) Relief, if any, and what directions to be passed? 3) Whether penalty is imposable w/s 4-A (3) and if'so the quantum thereof? . The case was fixed for the evidence of the parties, On behalf of the claimant. The claimant filed his evidence Ex AWI/A by way of affidavit along with the documents as und 1) Copy of Medical Treatment documents. 2) Copy of Motor claim form filed by Respondent no. 1 along with letter dated 17.07.2015 written by Respondent no. I to Respondent no. 2. 3) Copy Disability Certificate. 4) Copy of the Insurance Policy. 5) Copy of Registration Certificate of vehicle. 6) Copy of Aadhar Card. Claimant tendered his affidavit on 25/09/2019 and he was also cross examined by counsel of respondent no 2. The claimant has adduced one witness Ex. AW2/A and he was also cross examined by counsel for Insurance Company, . The case was fixed for arguments and written arguments were filed and oral arguments were also heard. . On the pleadings of the parties, documents filed therein and the evidence adduced on their behalf, I have to give my findings in the case as under: Issue No. 1The case of the applicant is that he was employed as driver on the truck owned by respondent No. 1. He met with an accident when he was driving the vehicle. The truck was also damaged. The insurance company has paid vehicle damage claim to the owner. The stand taken by respondent No. 1 also confirms the occurrence of accident out of and during the course of employment. This be so the factum of employment injury is proved and the burden of applicanvlaimant is discharged by that stand, Thereafter the fight remains between respondent no. 1 and respondent no. 2. As per documents available and the response of the Insurance Company the vehicle being insured they are liable to pay. Had there been anything contrary they ought to have brought the same by way of counter evidence. As per the Insurance Regulatory and Development Authority (Protection of Policy holders’ Interests) Regulation, 2002 the Insurance Companies are duty bound to get every claim investigated by the Surveyor approved by IRDA. By the above, I am convinced that by merely stating that the driving licence has been renewed would not certainly render the applicant ineligible to claim any compensation seems not correct. Hence I find that is not considerable. ‘The report ofthe other medical documents placed on record cannot be ignored. Relief: {mn the claim application the claimant has been stated that he was drawing wages @ Rs. 8000/- per month and Rs. 250/- per day as food allowances. The respondent no. 1 employer has submitted in her written statement that the claimant was drawing wages @ Rs. 12,000/- per month with all allowances. But as per maximum limit prescribed at that particular point of time, his wages is taken as Rs 8,000/- per month. In the claim application, he has been further stated that he was 26 years old at the time of accident. He was got himself physically examined and Medical Board of Aruna Asaf Ali Hospital, Delhi has assessed his 22% permanent disabled. The documents and the Medical Certificate show that the claimant may not be able to do any physical work of the nature. The counsel for the insurance company has relied on the report that the applicant has got his driving licence renewed. He has tried to show that there is no loss of earning capacity. In this regard the counsel for the applicant has shown that merely by renewal of driving licence does not go to infer that there is no loss of earning capacity and he is entitled to drive every vehicle. The counsel for the applicant has raised - whether it can be automatically presumed that the Driving License has been renewed at the instance of the applicant or there can be an effort from some other angle where some element of pecuniary gain can be attributed on the part of the other party. He has further argued to see - whether the renewal of the Driving License can certify that the applicant has been fit to drive a transport vehicle ~ Truck. In this regard the judgment of the: Hon'ble High Court of Rajasthan in National Insurance Co, Ltd. Vs. Rakesh Kumar Saini & Anr., $.B. Civil Misc. Appeal No. 1534 of 2002 may please be considered. The relevant portion of the judgment is reproduced as under:“Merely by the factum of renewal of license, it could not have been inferred that the claimant was able to drive the vehicle. License may have been renewed for various reasons. One may be able to drive the vehicle for short duration but he is still unable to drive it for longer duration due 10 the injuries sustained in the accident, Thus by merely renewal of the license nothing can be inferred and no dent is caused in the finding recorded by the Commissioner, Workmen's Compensation”. In this context I would like to drawn the attention of this Hon’ble Court towards a case decided by the Hon’ble Supreme Court of India in a case tiled as Pratap Narain Singh Deo vs. Srinivasa Sabata and another cited in 1976 ACJ 141. The relevant portion of the judgment is reproduced as under:- “It has not been disputed before us that the injury was of such nature as to cause permanent disablement to the respondent, and the question for consideration is that whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his findings as follows: M/s New India Assurance Co. Ltd. Vs. Mohd. Ajmer &Anr. — Delhi High Court - FAO No. 259/2013. 4. The learned counsel for the respondent relies upon the judgment of the Supreme Court in Mohan Soni vs. Ram Avtar &Ors., 2102 ACJ 583,. Further more the Hon'ble High Court has taken a similar view in:-Reliance General Insurance Co. Ltd. vs. Bikramjit Singh &Anr. (FAO No 24204/2016), decided on 01.05.2018; The claimant gave his evidence and he remained physically present and his condition shows his abdomen is ruptured and had a long scar of been operated. He finds to sit and take up work. But keeping in view that he can still take up some driving work may be not for those long durations his loss of earning capacity is taken 50%. It is held that the loss of carning capacity of the applicant has been reduced to 50%. In the given wage, age and loss of earning capacity the claimant is entitled to compensation as under: i) Relevant factor of 26 years 215.28 ii) 60% of wages @ Rs. 8000/- pm i Rs. 4800/- iii) Amount of compensation 215.28 X 4800 X 50 : Rs. 5,16,672/- 100 10. The claimant is also entitled to interest as per Section 4A of the ‘Act’ @ 12% per annum from 30 days after the accident. 11. That the accident took place 29/06/2015, about 6 years has passed. The applicant who is crippled due to work injury. He has not been paid even a siee has stated that he is facing hard time since then, Respondent No. 1 has not taken any care to see the situation. The employer has been taking a position which a person with prudent mind would find it unjustified. Show cause notice dated 05/03/2021 was issued to the respondents with direction to file reply. Respondent No | filed reply and submitted that since vehicle in question was insured with respondent no 2 and after the accident immediately insurance company R2 was informed just after occurrence of accident along with documents. In view of this accident respondent lodged own damage claim with respondent no 2 seeking OD claim of the damaged vehicle and supplied all the documents/details sought by them and after spot survey and completion of all documents the own damage claim was passed by R2. The R2 had charged additional premium under EC, Act 1923 therefore as per the judgment of the Hon'ble Rajasthan High Court and affirmed by Hon'ble Supreme Court in case titled as United India Ins. Co. Ltd V/s Roop Tanwar and Ors cited as 1991/ACJ74, this judgement was upheld by the Hon’ble Supreme Court in case titled as Ved Prakash Garg vs Premi Devi 7 Ors cited at 1998/ACJ1(SC)wherein it has been settled Law that after issuing valid insurance policy it was the R2 who has covered the liability of the RI for any claims as also the claim under EC Act 1923, Insurance co. is liable to pay penalty and interest another judgement National Ins. Co Ltd vs Mastan & Anr, Oriental Insurace Ltd V/s Pappu Kumar and @ Pushp Kumar & Ors and the New India Ins, Co, Ltd ys Smt Maina & Anr. Of Hon’ble High court of Delhi are relied by the respondent no 1. R2, Ins Co. also filed reply and denied the liability towards payment of penalty on the ground that the respondent no 2 ins co. came to know about the alleged accident only when the claim application filed and copy of the same received by the R2 Ins. Co, ice only after 17/07/2017 while the date of accident was 29/06/2015, as such R2 cannot be fastened liability of penalty. Resp. No 2 also relied on the issue of penalty judgment of Hon'ble Supreme Court of India in the matter Jaya Biswal vs Branch Manager Iffeo Tokio Gen. Ins. Co. Ltd. C(APPL)869/2016, The NII Ltd vs Harshad Bhai Amrud Bhai Modhiya & Anr C(APPL)2333/2016. I have considered the submission adduced by the respondents. As per the submission of the RI he had informed about the accident to the R2 immediately ‘along with relevant documents claiming the OD of damaged vehicle and same was released by the R2. As such it was the responsibility of the R2 to pay compensation to the claimant as per policy Certificate bearing No 6(II1). Clause 6(II1) states that the policy does not cover the following : I. Use for organised racing — making reliability trial or speed testing. I. Use whilst drawing trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicles. UL Use for carrying passengers in the vehicle except employees (other than the driver) not exceeding 06 in number coming under the purview of EC Act 1923. sy————— The argument adduced by Ld. Counsel for R2 on the issue of penalty does not cover above three as such judgment relied in this case by the R2 is not applicable Accordingly I am of the view that R2 Ins. Co. has defaulted and he is liable for delaying the compensation to a crippled person. In the given situation, I am of the considered view that this is a fit case where section 4A(3) (b) can be invoked and a penalty to the extent of 50% of the Principal amount of compensation is imposed on the respondent No. 2 which comes to an amount of, Rs. 2,58,336/-. 12. Therefore, the claimant is entitled to receive injury compensation from respondent no. 1 but as the said respondent no. 1 has taken an insurance coverage hence in sprit of indemnifying the insured, the respondent no. 2 i.e. M/s The New India Assurance Company Ltd., is directed to deposit before this Authority an amount of Rs. 5,16,672/- (Rupees Five Lakh Sixteen Thousand Six Hundred Seventy Two Only) on account of compensation payable to the claimant along with interest @ 12% p.a. w.e.f. 29.07.2015 tll its realization and further an amount of Rs, 2,58,336/- (Rs. Two Lakh Fifty Eight Thousand Three Hundred Thirty Six Only) towards penalty, through pay order in favour of “Commissioner Employee’s Compensation” within a period of 30 days from pronouncement of the order before this Authority. 13. Given under my hand and seal of this Authority on this_24 “day of April, 2021. Wyenw (S.C. Yatav) Commissioner Employee’s Compensation Act, 1923-