Telangana High Court
Cholamandalam Ms. General Insurance ... vs Sri Kattimani M.S.Mallikarjun , Raju ... on 18 December, 2023
HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
CIVL MISCELLANEOUS APPEAL No.214 OF 2013
JUDGMENT:
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1. Aggrieved by the quantum of compensation awarded in W.C.No.60 of 2011, dated 28.12.2012, on the file of the Court of Commissioner for Employees Compensation and Assistant Commissioner of Labour-I, Hyderabad (hereinafter be referred as the Commissioner), the present appeal is filed by the opposite party No.2-Insurance Company to set-aside the order of the learned Commissioner.
2. The brief facts of the case are that the applicant was employed by opposite party No.1 as Cleaner on his Tanker bearing No.GJ 15X 8377 and has received injuries in an accident that occurred on 20.03.2011 during the course and out of employment and opposite party No.2 is the insurer of the said tanker. On 20.03.2011, while the applicant was on duty as Cleaner on the said tanker along with the driver of the tanker and while they were proceeding on the tanker from Ballari to Chattisgarh and when the tanker crossed Makthal Town, it was stopped in front of Kachwer Sivar and the applicant was standing in front of the said tanker. At that time, one Auto, which was driven by its driver in a rash and negligent manner 2 MGP,J CMA.No.214 of 2013 at a high speed, dashed the applicant, due to which he sustained fracture of left leg besides multiple injuries all over the body. Immediately, he was shifted to Osmania General Hospital, Hyderabad. He further contended that he was aged 29 years and was getting Rs.5,000/- per month as salary and Rs.50/ as batta and as the accident occurred during the course and out of employment, he claimed compensation of Rs.6,00,000/-. Based on the complaint, the P.S.Makthal registered a case in Crime No.42 of 2011 under Section 337 of IPC.
3. Opposite party No.1 remained exparte. Opposite party No.2 denied averments of the claim application, age, wage, employment of the applicant, manner of accident and also stated that the compensation claimed is excess and exorbitant and that the driver is not having valid driving license and hence the Insurance Company is not liable to pay the said compensation.
4. The applicant was examined as AW1 before the Commissioner and also got examined AW2 & AW3 and marked Exs.A1 to A13 on their behalf.
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MGP,J CMA.No.214 of 2013
5. On behalf of the opposite party No.2, none were examined. However, Ex.B1-Insurance policy was marked with the consent of learned counsel for applicant.
6. The Commissioner, after considering the entire evidence and documents filed by both sides, has awarded compensation of Rs.4,67,727/- with interest @12%.
7. Aggrieved by the same, the appellant-Insurance Company filed the present appeal.
8. Heard both sides.
9. The main contention of the learned counsel for the appellant-Insurance Company is that the Commissioner, without considering the fact that AW3-Orthopaedic Surgeon, who has not treated the applicant, has awarded lump sum amount and also assessed the disability as 50% and loss of earning capacity as 80% and the Commissioner has taken the loss of earning capacity as 70%. Therefore, prayed to allow the appeal by setting aside the order of the learned Commissioner.
10. Per contra, learned counsel for the respondent contended that the learned Commissioner, after considering the entire 4 MGP,J CMA.No.214 of 2013 evidence, has awarded just and reasonable compensation for which the interference of this Court is unwarranted.
11. Now the points that emerge for determination are,
(i) Whether the applicant is entitled to receive the compensation awarded by the learned Commissioner?
(ii)Whether the Insurance Company is liable to pay the said compensation?
POINTS:-
12. This Court has perused the entire evidence and documents filed by the applicant as well as Insurance Company. The applicant as AW1 has reiterated the contents of the claim application, deposed about the manner of accident and also injuries sustained by him. In order to prove the same, got examined AW2, who is working as an Accountant in Mahesh Hospital, Himayathnagar and AW3, who is an orthopaedic surgeon. In his evidence, AW3 has categorically stated that on 09.08.2011, the applicant has approached him and he has examined him clinically and gone through the medical record and also x-ray and submitted that the applicant sustained Grade-II both bones segmental and fracture of left femur for which K-nailing was done with SSG. He also noticed that the applicant developed severe stiffness of left knee due to which the applicant cannot sit and squat and cannot do heavy work and 5 MGP,J CMA.No.214 of 2013 as a cleaner, he cannot work. He stated that he estimated the percentage of disability as 50% as per the Kessler's guidelines and loss of earning capacity as 80% and issued Ex.A6-Disability certificate.
13. It is pertinent to state that there is no dispute regarding the accident and injuries sustained by the applicant in the accident and the case was registered under Ex.A1-FIR and the injured applicant has taken treatment as per Ex.A2-copy of MLC issued by Govt.Hospital, Ex.A3- Case sheet of Osmania General Hospital, Ex.A5-Discharge Summary & Ex.A4-charge sheet discloses that the police, after investigation, laid charge sheet against the driver of the crime vehicle and Ex.A6- Disability Certificate issued by AW3 assessing the disability @ 50% and earning capacity @ 80% and Ex.A8-RC of the vehicle discloses that opposite party No.1 is the owner.
14. Admittedly, the applicant was working as cleaner of the tanker. Therefore the learned Commissioner, after considering the age and income of the applicant, fixed minimum rates of wages as per G.O.Ms.No.83, dated 04.12.2006 and has awarded reasonable compensation and in fact, the disability is assessed at 50% and earning capacity at 80% by the Doctor/AW3. 6
MGP,J CMA.No.214 of 2013 However, the Tribunal has taken only 70% as loss of earning capacity. Hence, the contention of the learned Standing Counsel for Insurance Company that the Commissioner has awarded lumpsum amount is unsustainable.
15. Under these circumstances, this Court is of the considered opinion that the learned Commissioner has rightly discussed all the aspects and awarded compensation for which this Court do not find any reason to interfere with the same. Hence, the appeal is devoid of merits and is liable to be dismissed.
16. In the result, the Appeal is dismissed without costs.
17. Miscellaneous petitions pending, if any, shall stand closed.
_____________________________ JUSTICE M.G.PRIYADARSINI Dt.18.12.2023 ysk 7 MGP,J CMA.No.214 of 2013 HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI CIVL MISCELLANEOUS APPEAL No.214 OF 2013 Dt.18.12.2023 ysk