THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
CIVIL MISCELLANEOUS APPEAL NO.958 OF 2005
JUDGMENT
This Civil Miscellaneous Appeal has been filed by Opposite Party No.2-insurance company challenging the Award of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I, Hyderabad in W.C. No.202 of 2004 dt.13.06.2005.
2. The brief facts leading to filing of this Appeal are that there was a road accident which occurred on 20.09.2004 in which the applicant/1st respondent sustained injuries as he was working as a driver on the lorry bearing No.APT 5491. The applicant was in the employment of Opposite Party No.1 in W.C.No.202 of 2004 for about five months and he was on duty on the day of the accident when the lorry was proceeding from L.B.Nagar towards Nagole cross roads. The lorry was stopped on the left side of the road at Nagole cross roads at about 3.30 PM. When the applicant was proceeding towards a hotel to have a cup of tea, an unknown Hero Honda Splendor motor cycle hit him and sped away. The applicant sustained bleeding injuries and both bones of his left leg were fractured and he was immediately shifted to Osmania General Hospital for treatment and became permanently disabled and lost his total earning capacity. The applicant 2 filed a dispute before the Commissioner for Workmen's Compensation seeking compensation from Opposite Parties No.1 and 2 and claimed a compensation of Rs.3,00,000/- against both the Opposite Parties. The Commissioner for Workmen's Compensation has awarded a compensation of Rs.1,82,741/- towards loss of wages and the compensation towards disability at the rate of 50%.
3. Against this Award of the Commissioner, Opposite No.2 in W.C.No.202 of 2004 is in Appeal before this Court by raising the following substantial questions of law:
(a) Whether the Commissioner is correct in mulcting the liability on the appellant when the applicant did not receive the injuries out of his employment?
(b) Whether the Commissioner is correct in entertaining the application when there is no nexus between the insured vehicle and the accident?
(c) Whether the Commissioner is correct in considering the loss of earning capacity at 50% when the injury sustained is not a scheduled one?
4. Learned counsel for the appellant, Smt. P.Vijaya Lakshmi, submitted that the accident did not occur while the applicant was in the vehicle and therefore there is no nexus between the insured vehicle and the accident. Further, the accident had occurred when the applicant was on the road proceeding to the other side of the road to have a cup of tea and therefore he did not receive injuries out of his 3 employment. Further, she submitted that the disability of the applicant was fixed at 30% by the doctors, whereas the Commissioner has considered the disability at 50% and has granted compensation accordingly. Therefore, according to her, the award of compensation has to be set aside.
5. Learned counsel for the 1st respondent, Sri K. Sreedhar, submitted that the applicant being the driver of the vehicle received grievous injuries on his leg, due to which he lost his earning capacity as a driver and therefore, the Commissioner has rightly awarded the compensation by considering the loss of earning capacity at 50%. Therefore, according to him, there was no need to interfere with the award of the Commissioner.
6. Having regard to the rival contentions, this Court finds that the applicant was in the employment of the lorry owner, Opposite Party No.1, as driver of the lorry; that the applicant had parked the vehicle on the side of the road and was crossing the road to have a cup of tea. Therefore, it cannot be said that the applicant was not under the employment of the lorry owner at the time of the accident. The accident is also not denied and the only dispute is with regard to disability of the lorry driver/applicant.
7. This Court finds that the doctor, who examined the applicant, had himself assessed the physical disability of the applicant at 30% on Kessler's Guidelines and had certified that the applicant will not be 4 able to sit or squat and will not be able to walk for long distances and had stated that he has suffered around 50% loss of earning capacity. It was only after considering the evidence of the doctor that the Commissioner held that the applicant has suffered 50% loss of earning capacity. Therefore, this Court does not see any reason to interfere with the order of the Commissioner.
8. The Civil Miscellaneous Appeal is accordingly dismissed. No order as to costs.
9. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.
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JUSTICE P. MADHAVI DEVI
Date: .11.2021
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