THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.398 OF 2011
JUDGMENT:
Aggrieved by the order dated 25.11.2010 in W.C.No.180 of 2008 passed by the learned Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-IV, T.Anjaiah Karmika Samkshema Bhavan, RTC X roads, Hyderabad, the opposite part No.2 - United India Insurance Company Limited has filed the present appeal to set aside the impugned order.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Commissioner.
3. The brief facts of the case are as under:
The applicant has filed an application under the provisions of the Workmen's Compensation Act, 1923 (now amended as Employees' Compensation Act, 1923) claiming compensation of Rs.3,50,000/- for the injuries sustained by her in the accident that occurred during the course of her employment as labourer under opposite party No.1 on tipper bearing No. APO 5708. On 27.6.2008 she was engaged as labourer for loading and unloading purpose and after unloading rock pieces in the said tipper and as per the instructions of her 2 MGP,J CMA_398_2011 employer, she along with other labourers, was proceeding on the said tipper from Kokapetgutta to Narsingi village and at about 5-00 p.m., when the tipper reached Sabithanagar bus stop, the tipper was turned turtle due to the rash and negligent driving of the driver. As a result, she sustained fractures on her both hands and other serious injuries all over the body and immediately she was shifted to Osmania General Hospital, Hyderabad, and later she took treatment at private hospitals. Thus, the applicant has sustained injuries during the course and out of her employment with the opposite party No.1. Based on the complaint, the Police, Narsingi P.S. registered a case in crime No.176 of 2008. According to the applicant, she was aged about 35 years and used to get Rs.3,500/- per month as her wages. Thus the opposite party Nos.1 and 2, who are owner and insurer of the tipper bearing No. APO 5708, are jointly and severally liable to pay compensation. Hence the claim.
4. Opposite party No.1, owner of the tipper received notice, engaged Mr.G.Sudhakar Reddy, Advocate, who filed vakalath but did not file any counter. Opposite party No.2 - Insurance Company filed counter denying the employment of the applicant as a labourer on tipper under opposite party No.1 including the manner of accident, age and wages of the applicant and also 3 MGP,J CMA_398_2011 denied the coverage of risk of the applicant under the policy. It is further contended that as per the police records, the applicant was travelling as a gratuitous passenger in the vehicle for purchasing household articles at Narsingi village, and as such, opposite party No.2 is not liable to pay compensation to the applicant. The compensation claimed by the applicant is excessive and exorbitant. Hence prayed to dismiss the application.
5. Before the learned Commissioner, on behalf of the applicants, AWs.1 and 2 were examined and got marked Exs.A1 to A6. On behalf of opposite party No.1 none were examined and no document was marked. On behalf of opposite party No.2, RW.1 was examined and Exs.B1 to B3 were marked.
6. The learned Commissioner after considering the evidence on record, both oral and documentary, has awarded Rs.2,57,151/- towards compensation, Rs.38,572/- towards interest, Rs.514/- towards stamp fee and Rs.500/- towards Advocate fee. Thus in all the learned Commissioner has awarded the compensation of Rs.2,96,737/-.
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7. Aggrieved by the compensation awarded by the
Commissioner, the opposite party No.2 - Insurance Company has filed the present appeal to set aside the impugned order.
8. Heard Sri A.V.K.S. Prasad, learned Standing Counsel for the appellant-Insurance Company and Sri T.Viswarupa Chary, learned counsel for the applicant.
9. The main contention of the learned Standing Counsel for the opposite party No.2-Insurance Company is that though the labourer on the lorry of the insured was not covered under Ex.B1, as the insured had not paid the required premium to the Insurance Company, the learned Commissioner instead of absolving the liability of the insurer of the lorry, has erroneously fixed the liability on the appellant-Insurance Company. It is further contended that though the applicant has sustained 35% permanent disability, the learned Commissioner committed error in taking the loss of earning capacity of the applicant at 70%. Hence, prayed to allow the appeal and to set aside the order passed by the learned Commissioner.
10. On the other hand, the learned counsel for the applicant contended that the learned Commissioner after considering all the material aspects has rightly awarded the compensation and 5 MGP,J CMA_398_2011 thus, interference of this Court in the impugned order is unwarranted.
11. In view of rival contentions made by both the parties, this Court has perused the entire material available on record. The applicant was examined AW.1 and reiterated the petition averments and further stated that she sustained fractures on her both hands and even after taking better treatment, she suffered with permanent disability. On the other hand, RW.1 who is the Senior Assistant of appellant-Insurance Company was examined and he stated that as per the statement of the applicant recorded by the Investigation officer, she stated that she is eking out her livelihood by stone cutting work at Sabithangargutta and that on 27.6.2008 the applicant and one Smt.G.Mallamma and her son have boarded the tipper bearing No. APO 5708 for purchasing essential commodities at Narsingi village and on the way, due to the rash and negligent driving of the driver of tipper, the tipper met with the accident and the applicant has sustained injuries and Smt.G.Mallamma and her child died due to the injuries sustained in the accident and that the labourers viz., Mallappa and Husainappa also died while the driver sustained injuries and as such, there was no employee- employer relationship between the applicant and opposite party 6 MGP,J CMA_398_2011 No.1. However, as per Ex.A1 F.I.R. and Ex.A3 final result, the accused driver of tipper by name Balakrishna along with tipper labourers viz., G.Mallamma, her son Ramu who is 5 months old, Mallappa, Hussainappa and Chowdamma were travelling in the said tipper at the time of accident and it was clearly mentioned as tipper labour employed on tipper. Further summons were issued twice to the Investigating Officer were not served and opposite party No.2 has not taken steps to bring him to the witness box to prove the contents of Ex.B2. Therefore, Ex.B2 remained unproved. Therefore, the learned Commissioner considering the evidence of AW.1, coupled with Ex.A1 to A3 rightly held that the applicant was a labourer employed on the tipper bearing No. APO 5708 of opposite party No.1 and on 27.6.2008 while the applicant along with other labourers was travelling on the said tipper, met with accident when the tipper fell in a ditch due to the rash and negligent driving of its driver and that the applicant has sustained grievous injuries in the said accident during the course and out of employment.
12. Coming to the injuries and the disability sustained by the applicant, she stated that she sustained fractures on her both hands apart from other serious injuries all over the body. According to Ex.A2 C.C. of medico legal case record issued by 7 MGP,J CMA_398_2011 the Osmania General Hospital, the applicant has sustained injury to left forearm, avulsion injury to right arm and tenderness to right leg. In support of her contention, she examined AW.2 Orthopedic Surgeon. He stated that the applicant has sustained closed fracture of radius ulna and that he came to him with painful restricted movements of left elbow and wrist, which is grievous in nature and he assessed the permanent disability sustained by the applicant at 35% and estimated the loss of earning capacity at 70% as a labourer. He issued Ex.A4 disability certificate to that effect. It is important to note that a laborer who has experienced reduced bone formation resulting in painful, restricted movements of the left elbow may not be able to work with the same efficiency as before the accident. Therefore, considering the disability sustained by the applicant, the learned Commissioner has rightly assessed the loss of earning capacity of the applicant at 70%. Therefore, contention of the learned Standing Counsel that though the applicant has sustained 35% permanent disability, the learned Commissioner committed error in taking the loss of earning capacity of the applicant at 70%, is unsustainable.
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13. Now coming to the quantum of compensation, according to the applicant, she was aged 35 years as on the date of accident and was paid Rs.4,500/- per month. However, as there is no documentary evidence on record to prove the income of the applicant, considering her occupation as labourer, the learned Commissioner has taken the income of the applicant at Rs.3,107/- per month as per the G.O.Ms.No.83 of L.E.T & F (Lab-II) Department dated 22.11.2006. Considering the age of the applicant as 35 years, the learned Commissioner applied relevant factor of '197.06' and awarded compensation of Rs.2,57,151/-. The learned Commissioner further awarded an amount of Rs.514/- towards stamp fee, Rs.500/- towards Advocate fee and Rs.38,572/- towards interest and in total an amount of Rs.2,96,737/-, which is just and reasonable.
14. Further the learned Standing Counsel for the appellant- Insurance Company contended that the labourer on the tipper of the insured were not covered under Ex.B1, as the insured had not paid the required premium to the Insurance Company. In the cross-examination RW.1 stated that Rs.50/- was paid in addition to basic premium of Rs.6,090/-. However, he denied that the basic premium paid covers one driver, one cleaner and six labourers. As seen from Ex.B1 insurance policy, it was 9 MGP,J CMA_398_2011 issued subject to endorsement of IMT 39. It covers legal liability to persons employed in connection with the operation and/or maintenance and/or loading and/or unloading of motor vehicles for goods vehicle. Therefore, the risk of labourers working on the insured vehicle, are also covered. Hence, this Court is of the considered opinion that the contention of the learned Standing Counsel for the appellant-Insurance Company that the applicant being the labourer on tipper of the insured were not covered under Ex.B1, is unsustainable. Thus, this Court is of the considered opinion that the opposite party Nos.1 and 2 are jointly and severally liable to pay compensation to the applicants. In view of the above facts and circumstances, there are no grounds to interfere with the findings of the learned Commissioner and the Civil Miscellaneous Appeal is devoid of merits and it is liable to be dismissed.
15. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI 02.11.2023 Pgp