THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.96 of 2011
JUDGMENT:
1. The present civil miscellaneous appeal has been directed against order dated 01.01.2011 in W.C.No.89 of 2009 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I, Hyderabad. The said claim petition was filed by respondent No.1 herein seeking compensation for injuries sustained by him in an accident and the same was partly allowed granting an amount of Rs.4,01,752/- towards compensation including interest. Aggrieved by the same, the present civil miscellaneous appeal is filed at the instance of the insurance company i.e., opposite party No.2 before the Commissioner.
2. The appellant herein is opposite party No.2, respondent No.1 herein is applicant and respondent No.2 herein is opposite party No.1 before the Commissioner. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
3. The brief facts of the case of the applicant are that he was working as driver for auto bearing No. AP 23 U 0592 under opposite party No.1 and he was being paid an amount of Rs.4,000/- per month towards wages and Rs.100/- per day towards batta. On 02.02.2009, 2 MGP,J CMA_96_2011 at about 10:30 AM, he was proceeding in the said auto from Masjidpally to Medchal and when the auto reached Athwelli, one car bearing No. AP 28 AX 5062 driven in rash and negligent manner dashed the auto. Due to the said accident, he sustained fracture of head of third metatarsal and dislocation of fourth metatarsal phalangeal joint along with other multiple injuries all over the body and he was shifted to hospital for treatment. In this regard, crime No.46 of 2009 was registered in Medchal Police Station. It is his case that during the course and out of his employment he sustained injuries in the said accident. He was 25 years old at the time of the accident. The auto owned by opposite party No.1 was insured with opposite party No.2 vide insurance policy bearing No.55013/31/08/6300000554 valid from 25.07.2008 to 24.07.2009. Hence, he filed the present claim petition seeking compensation of Rs.5,00,000/- with interest from both the opposite parties.
4. In spite of service of notice, opposite party No.1 remained ex parte. Opposite party No.2 filed his counter and contended that there was no employee and employer relationship between the applicant and opposite party No.1. They denied the occurrence of accident, injuries sustained, wages paid to the applicant and the registration of crime before Medchal Police Station. It is their further case that the 3 MGP,J CMA_96_2011 applicant was not holding valid driving license at the time of the accident. Accordingly, prayed to dismiss the claim petition.
5. In support of his case, the applicant got examined A.Ws.1 and 2 and got marked Exs.A-1 to A-7. Opposite parties did not adduce any oral evidence, but opposite party No.2 got marked Exs.B-1 and B-2, in support of its case.
6. After considering the pleadings and evidence on record, the Commissioner held that the applicant has successfully proved his case. Hence, the claim petition was partly allowed holding that both the opposite parties were jointly and severally liable and granted an amount of Rs.4,01,752/- towards compensation along with interest payable to the applicant.
7. Heard, the learned counsel for the appellant/opposite party No.2. None appeared and there is no representation for the respondents herein.
8. Learned counsel for the appellant/opposite party No.2 i.e., the insurance company has contended that though, A.W.2 i.e., orthopedic surgeon after examining the applicant medically has assessed physical disability at 50%, which is partial and 4 MGP,J CMA_96_2011 permanent disability and loss of earning capacity at 80%, the Commissioner has taken the loss of earning capacity at 70%. The said earning disability of 70% is on higher side. Therefore, she prayed to allow the appeal by setting aside the impugned order.
9. Now, the point for determination is as follows:
"Whether the findings of the Commissioner determining the loss of earning disability of the applicant suffers from any irregularity?"
Point:-
10. This Court has perused the evidence of A.W.2 i.e., orthopedic surgeon. He stated that he had conducted clinical and radiological examination of the applicant on 05.04.2010. Further, he verified the previous medical records of the applicant pertaining to Mediciti Hospital, Shameerpet. He found that the applicant suffered with fracture of third metatarsal, dislocation of fourth metatarsal phalangeal joint; and dislocation of right knee and other multiple injuries all over the body. He stated that the applicant developed unstable knee with pain and because of the said problem, the applicant will not be able to sit, squat and walk for long distances. The applicant will also not be able to perform his duties as an auto driver. Hence, A.W.2 estimated physical disability at 50%, which is partial and permanent disability 5 MGP,J CMA_96_2011 and loss of the earning capacity at 80%. He stated that the injuries are grievous in nature and issued disability certificate under Ex.A-5.
11. During the course of cross-examination, A.W.2 has admitted that he was not treating doctor of the applicant and at the time of his examination, the fractures sustained by the applicant were healed. He also stated that there was unstable knee joint due to internal derangement of the concerned joint (Ligament of Ruptures) and the same will never be normal. He stated that the knee braces will help for walking and it prevents falling of the patient, but efficiency to walk will come down due to the injuries. The applicant will also not be able to walk, sit and squat normally as earlier. He denied that the applicant could drive the vehicle as normal human being. The Commissioner after considering all such aspects had taken the loss of earning capacity at 70% and awarded an amount of Rs. 4,01,752/- towards compensation along with interest.
12. Admittedly, the applicant was working as an auto driver under employment of opposite party No.1 and he is aged about 25 years, at the time of the accident. The injuries sustained by him are grievous in nature and A.W.2-orthopedic surgeon after examining the applicant determined the physical disability at 50%. The Commissioner 6 MGP,J CMA_96_2011 considered the fact that the applicant being an auto driver has to discharge his duty by swift movements of both upper and lower limbs, which is not possible for the applicant with the disability, which is caused due to injuries. Therefore, the Commissioner considered the same and assessed the loss of earning capacity at 70%. The said assessment is without any reasons and the same appears to be on higher side. However, considering the fact that the applicant is an auto driver and suffered grievous injuries, this Court is of the considered view that the percentage of loss of earning capacity can be reduced by 5% and fixed at 65%. Accordingly, the loss of earning disability of the applicant due to the injuries sustained by him in the accident is reduced from 70% to 65%.
13. Coming to other aspects, the Commissioner after rightly considering all the evidence placed before him has given findings as to wages, age, etc,. The interference of this Court into the said aspects is unwarranted. After reduction of 5% on the earning disability, the computation of compensation is as follows:
Rs.3996.75 X 60/100 X 65/100 X 216.91 = Rs. 3,38,105/-. Thus, the applicant is entitled for Rs.3,38,105/-. 7
MGP,J CMA_96_2011
14. The Commissioner has granted an amount of Rs.728/- towards stamp fee and Rs.500/- towards advocate fee. Hence, the total amount of compensation, which the applicant is entitled comes to Rs. 3,39,333/-.
15. Coming to the interest, this Court feels that the interest granted by the Commissioner is just and reasonable and the same needs no interference by this Court.
16. In the result, the Civil Miscellaneous Appeal is partly allowed by reducing the compensation from Rs.3,64,113/- to Rs.3,39,333/- and the rest of the findings of the Commissioner in the impugned order are confirmed. There shall be no order as to costs. Miscellaneous applications pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 08.11.2023 GVR