THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
C.M.A.No.471 of 2008
JUDGMENT:
The National Insurance Company Limited has filed this Civil Miscellaneous Appeal, assailing the order dated 28.11.2007 in W.C.No.1 of 2005 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-IV at Hyderabad (hereinafter referred to as 'the Tribunal').
2. This application in W.C.No.1 of 2005 was filed by the applicant under Workmen's Compensation Act, 1923 (for short 'the Act') alleging that he met with an accident as cleaner on the lorry bearing No.AP28T-J-6459 belonging to opposite party No.1 insured with National Insurance Company Limited/opposite Party No.2. The Tribunal has allowed the said application and awarded an amount of Rs.1,39,126/- holding that the opposite party Nos.1 & 2 were jointly and severally liable for payment of the said compensation amount to the applicant. Page 2 of 8
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3. Feeling aggrieved by the said orders, the opposite party No.2-National Insurance Company Limited has filed this C.M.A. on the following grounds:
a) That no additional premium was paid covering the risk of the victim.
b) That the Tribunal erred in not looking into Ex.B.1, which shows that additional premium, is not paid for covering the risk of the cleaner.
c) That the Tribunal grossly erred in taking the loss of earning capacity of victim as 50% when the evidence of Doctor does not state the loss of earning capacity and assess the disability only at 30%; and
d) That the Tribunal has not followed the settled principles of law.
4. Notice served on the respondents. Heard learned counsel on both sides. The submissions made on either side have received due consideration of this Court. Page 3 of 8
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5. In the light of rival contentions and the material available on record, the following points would arise for consideration is
i) Whether the Tribunal is justified in assessing the loss of earning capacity at 50%, though the Doctor has certified 30% of disability?
ii) Whether the interest granted at 12% is on higher side? and
iii) Whether the order impugned is sustainable? Point Nos. (i) to (iii):
6. The applicant/respondent No.1 herein has filed W.C.No.1 of 2005 under the Act claiming compensation alleging that he sustained injuries while working as cleaner on the lorry bearing No.AP28-T-6459 belonging to opposite party No.1, who has filed counter before the Tribunal admitting the employment, ownership, wages, age and subsistence of the insurance policy, whereas opposite party No.2/appellant herein-insurance company has filed a detailed counter denying the entire claim of the applicant stating that opposite party No.1 has not informed about Page 4 of 8 AVR,J CMA No.471 of 2008 the accident to the insurance company and driver of the crime vehicle was not having valid driving licence at the time of accident and the insurance company has no liability.
7. During enquiry, on behalf of the applicant, he himself got examined as AW.1. In his evidence, Exs.A.1 to A.10 documents are marked. In the cross-examination on behalf of the insurance company, the applicant has accepted that in MLC it is mentioned as bleeding injuries. He denied the suggestion that premium is not paid to cover the risk of the cleaner and he has further explained that due to his financial position, he could not immediately admit in the hospital and he has taken treatment privately. AW.2, who is the Doctor-G. Subhash Rao, has issued Ex.A.5-disability certificate stating that he thoroughly examined the medical record, X-ray and other documents and on his clinical, radiological and physical examination. He stated that the applicant was operated to his right leg and screws were also fixed in his right leg and he was advised to go another operation for removal of the screws Page 5 of 8 AVR,J CMA No.471 of 2008 and stated that the applicant cannot stand for long time and he cannot walk or run as he was doing prior to the accident. Accordingly, certified that as per Kessler's scale only, he has assessed 30% permanent partial disability.
8. The trial Court while relying on the oral evidence of AWs.1 & 2 and Exs.A.1 to A.5 held that the applicant is able to establish that he was working as cleaner over the lorry bearing No. AP28-T-6459 and met with an accident and he has taken treatment initially at ADRM Hospital, Ramanthpur and that he suffered 30% permanent and partial disability. However, the percentage of loss of earning capacity was assessed by the Tribunal at 50% considering the fact that he was working as cleaner in view of the disability suffered as explained by AW.2-doctor. The applicant cannot work as cleaner with the same efficiency as he was working before the accident and accordingly assessed the loss of earning capacity at 50%.
9. With reference to the claim of the learned counsel for the appellant that the cleaner in not covered by the insurance policy and no separate premium is paid, it Page 6 of 8 AVR,J CMA No.471 of 2008 may be stated that having raised several contentions in the counter, the appellant/insurance company did not choose to examine any of its authorized officer in support of their claim and no witness is examined on behalf of the insurance company. Nothing worth mentioning is elicited in the cross-examination of AWs.1 & 2 in support of the claim of insurance company/opposite party No.2. This by itself is sufficient to draw an adverse inference against the appellant/opposite party No.2-insurance company under Section 114 (g) of the Evidence Act, holding that the defence set up by them in their counter is not correct. To arrive at a conclusion, I am supported by the principles laid by the Hon'ble Supreme Court in Vidhyadhar Vs. Manikrao and another1.
10. The Tribunal while relying on the principles laid in the Oriental Insurance Company Limited Vs. Thukaram Adappa and others2 and in New India Assurance Co. Ltd., v. Satpal Singh Muchal3 has rightly held that the statutory 1 AIR 1999 SC 1441 2 2007 ACJ 1497 3 2000 ACJ 1 SC Page 7 of 8 AVR,J CMA No.471 of 2008 employees of the insured such as driver, conductor, ticket collector and who are carried in the goods carriage are covered to the extent of liability under the Act.
11. Similarly, I do not find any merit in the contention of the insurance company that the interest awarded is on higher side. In fact, in view of the settled principles of law, the claimant/applicant is entitled for 12% interest from the date of accident, since no cross-appeal or objection is raised, this Court is not disturbing the findings recorded by the Tribunal on this aspect. Accordingly, I do not find any merit in the appeal and it deserves to be dismissed.
12. In the result, the Civil Miscellaneous Appeal is dismissed, confirming the order dated 28.11.2007 in W.C.No.1 of 2005 before the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-IV, Hyderabad in its entirety. The applicant is entitled for withdrawal of the compensation amount of Rs.1,39,126/- deposited before the Tribunal together with interest accrued thereon, as per the order dated 28.11.2007 in Page 8 of 8 AVR,J CMA No.471 of 2008 W.C.No.1 of 2005. However, in the circumstances of the case, there shall be no order as to costs.
Miscellaneous Applications, if any pending in this appeal, shall stand closed.
_________________________________ A. VENKATESHWARA REDDY, J.
Date: 15.11.2022 Isn