Telangana High Court
The United India Insurance Company ... vs K. Kishan And Another on 13 December, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.637 of 2013
AND
CROSS-OBJECTIONS SR.NO.15743 of 2015
COMMON JUDGMENT:
1. Aggrieved by the order dated 25.06.2013 passed in W.C.No.17 of 2011 on the file of the Commissioner for Employees' Compensation and Deputy Commissioner of Labour, Nizamabad (hereinafter be referred as 'the Commissioner'), the present appeal is filed by the opposite party No.2 seeking to allow the Appeal by setting aside the order passed by the Commissioner. Also aggrieved by the said order of Commissioner, the claimant filed the Cross Objections petition seeking the Court to modify the order rendered by the Commissioner by awarding just compensation with interest @12% P.A. from the date of accident to till the date of realization.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Commissioner.
3. The facts of the case in brief are that the applicant filed a claim application claiming compensation of Rs.10,00,000/- on account of injuries sustained by him in the accident that occurred on 23.12.2010. As per the applicant, he was employed by the opposite party No.1 as driver on Car bearing No.AP 25K 345. On 23.12.2010 at about 11.00AM, while he was discharging his duty as driver on the said car and coming from Pothangal to Nizamabad and reached 2 MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015 Gannaram Village shivar near stone cutting machine, a lorry came in an opposite direction in a rash and negligent manner. Immediately he applied sudden brakes to avert the accident due to which the applicant lost control over the car and gave dash to road side culvert. As a result, the applicant sustained fracture of his right thigh, both bones of left ankle, right side ribs and injuries to forehead and other party of his body. Immediately, he was shifted to Amrutha Laxmi Hospital, Nizamabad, from there, he was shifted to NIMS Hospital, Hyderabad and thereafter took treatment in private hospitals. Due to the said injuries, the applicant became permanently disabled and was removed from his employment. Based on the complaint, P.S., Dichpally, registered a case in Crime No.124 of 2011 under Section 338 IPC. It is further contended by the applicant that he was aged 41 years as on the date of accident and was getting wages of Rs.8,000/- per month. As the accident occurred during the course and out of employment by opposite party No.1, opposite party No.1 and opposite party No.2-Insurance Company both are jointly liable to pay compensation.
4. Opposite party No.1 filed its written statement stating that the applicant was being paid an amount of Rs.7,000/- per month and that he was aged more than 45 years and that he met with an accident while discharging his duties and that the vehicle was insured with opposite party No.2 and the said insurance policy was in force at 3 MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015 the time of accident and that the compensation claimed is excessive and exorbitant and prayed to dismiss the application against them.
5. Opposite party No.2 filed its written statement denying the age, wages, residence of the applicant, employer-employee relationship, manner of accident, injuries sustained by the applicant and also denied that the applicant is having a valid driving license. The opposite party No.2 also filed additional written statement contending that the applicant by colluding with opposite party No.1, filed the claim petition for wrongful gain and that the applicant is having 50% share in Thirumala Rice Mill and that the applicant was not a driver and the accident did not occur during the course of his employment and that the claim is not maintainable and hence prayed to dismiss the claim application.
6. Before the Commissioner, the applicant was examined as AW1 and got examined AW2, who is an Orthopedic Surgeon and got marked Exs.A1 to A12.
7. On behalf of opposite party No.2, RW1 to RW5 were examined and Exs.B1 to B7 are marked.
8. After considering the evidence and documents filed, the learned Commissioner awarded compensation of Rs.3,95,617/-. Aggrieved by the same, the present appeal is preferred by opposite party No.2- Insurance Company and X-objections were filed by the applicant. 4
MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015
9. Heard the submission of the learned Standing Counsel for appellants as well as learned counsel for the Respondents.
10. The main contention of the learned counsel for the appellant- Insurance company is that there is no documentary evidence to show that the applicant was the driver of the said car; the applicant was a sleeping partner of a Rice mill and that Aw2-Orthopedic surgeon examined the applicant clinically and had not given any treatment and that no Doctor, who had given treatment to the applicant in NIMS hospital, was examined to support his contention and that AW2 is not competent to issue disability certificate to the applicant and that no doctor of private hospital who had given treatment to the applicant initially, was examined and hence prayed to set-aside the order passed by the learned Commissioner.
11. Per contra, the learned counsel appearing for respondent No.1 in his cross-objections petition stated that the learned Commissioner had not fixed 100% disability and had not awarded interest @ 12% per annum from the date of accident to till the date of realization and prayed to award just compensation with interest @ 12%n per annum.
12. Now the points that emerge for consideration are:-
(i) Whether the opposite party nos.1 & 2 are liable to pay the said compensation?
(ii) Whether the applicant is eligible for 100% disability
(ii) Whether the applicant can be awarded interest @ 12% P.A,.
from the date of accident to till date of realization? 5
MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015 Points (i) & (ii):-
13. It is pertinent to note that as per Ex.B2-Certified copy extract of driving license register and Ex.A10- copy of driving license, the applicant is having valid driving license. Exs.A2 to A7 shows that the applicant was admitted in the hospital and underwent surgery and Ex.A11 shows the discharge summary of the applicant. The evidence of AW2, who is an orthopedic surgeon, stated that he subjected the applicant to clinical and physical examination and assessed the loss of disability @ 65% and loss of earning capacity as 65% which evidence is unrebutted by the opposite party No.2-Insurance company. As per the evidence of AW2 and upon perusal of Exs.A4 to A11 and Ex.A11-Disability certificate, this Court finds that the applicant has suffered physical disability during the course of his employment and that the Commissioner has rightly considered the percentage of disability of the applicant for which the interference of this Court is not necessary.
14. It is also pertinent to note that RW1, who is an employee of opposite party No.2, admitted in his evidence that Ex.B7 does not show that the applicant had purchased the car in question and that the opposite party No.1 is the owner of the said car vide Exs.A8 & A9. RW4, who is opposite party No.1, deposed in her evidence the applicant was driving the car at the time of accident and that she had not sold the car to the applicant. RW5, who is the Inspector of 6 MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015 Income Tax Department, deposed in his evidence that Ex.B7-copy of Income Tax returns does not show that the applicant is working partner or sleeping partner in the Rice mill.
15. Having gone through the entire evidence which is available on record and the documents marked, this Court does not feel to interfere with the findings given by the Commissioner. Therefore, the learned Commissioner, after considering all the aspects, awarded reasonable compensation. Hence, both the opposite party's 1 & 2 are liable to pay the compensation awarded by the Commissioner. Therefore, point Nos.1 & 2 are answered accordingly. Point No.iii
16. In the decision of the Hon'ble Supreme Court in P. Meenaraj v. P. Adigurusamy 1, the Hon'ble Apex Court held as follows:
"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident.
In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."
1 Civil Appeal No 209 of 2022, decided on 6 January 2022 7 MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015
17. In view of the principle laid down in the above said case, it is evident that the applicant is entitled for interest at 12% per annum on the compensation amount from the date of accident till date of deposit. Hence, this Court is inclined to award interest at 12% per annum on the compensation amount from the date of accident till the date of deposit.
18. In the result, C.M.A.No.637 of 2013 filed by the appellant- Insurance Company is dismissed and the Cross-Objections petition filed by the applicant vide SR.No.15743 of 2015 is allowed as per the judgment of the Hon'ble Apex Court (referred supra). There shall be no order as to costs.
19. Miscellaneous petitions pending, if any, shall stand closed.
_____________________________ JUSTICE M.G.PRIYADARSINI Dt.13.12.2023 ysk 8 MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015 THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS APPEAL No.637 of 2013 AND CROSS-OBJECTIONS SR.NO.15743 of 2015 Dt.13.12.2023 ysk 9 MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015