THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL Nos.8 of 2012 and 44 of 2014
COMMON JUDGMENT:
1. These Civil Miscellaneous Appeals are directed against order
dated 07.12.2011 in W.C./File/A/473/2011 (W.C./Mise/A/1919/
2010) on the file of the Commissioner for Employees' Compensation
Act, 1923 and Assistant Commissioner of Labour, Sangareddy, Medak
District (hereinafter referred to as 'Commissioner'), whereunder the
claim petition filed by the applicant therein seeking compensation for
injuries sustained by him in an accident occurred on 31.05.2010 was
partly allowed granting compensation of Rs.2,43,145/-. Aggrieved by
the said order, the opposite party before the Commissioner filed
C.M.A.No.8 of 2012 and the applicant before the Commissioner filed
C.M.A.No.44 of 2014. Since both the appeals are arising out of same
order, they are being dealt with by way of this common judgment.
2. The applicant before the Commissioner is appellant in
C.M.A.No.44 of 2014 and respondent in C.M.A.No.8 of 2012. The
opposite party before the Commissioner is appellant in C.M.A.No.8 of 2012 and respondent in C.M.A.No.44 of 2014. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
2
MGP,J CMA_8_2012 & CMA_44_2014
3. It is the case of the applicant that he was working as a helper in opposite party i.e., Sri Raja Rajeswari Saw Mill for a monthly salary of Rs.5,000/-. While so, on 31.05.2010, an accident occurred and the applicant lost his thumb, index, middle fingers and half portion of his forearm of left hand. He was admitted in Government Hospital, Siddipet and later, he was shifted to Yashoda Hospital, Secunderabad, on doctor's advice for treatment. In this regard, a case was registered vide First Information Report (FIR) No.119/2010 on the file of Police Station Dubbak and after conducting enquiry, a charge sheet was filed under Section 338 of the Indian Penal Code, 1860. The applicant was aged about 40 years at the time of accident. The accident was during the course and out of the employment of applicant with opposite party. Hence, he filed the present claim petition seeking compensation of Rs.10,00,000/-.
4. The opposite party represented by its proprietor filed its counter denying that the applicant was employed under opposite party and also denied that the accident was during the course and out of his employment. It is the case of opposite party that on 31.05.2010 at 04:00 PM, when all the employees of sawmill went for lunch, the 3 MGP,J CMA_8_2012 & CMA_44_2014 applicant entered the premises of sawmill without permission. He started the machine and due to his negligence the alleged accident took place. However, on humanitarian grounds, the opposite party paid an amount of Rs.20,000/- cash towards compensation and also paid Rs.80,000/- towards medical expenses of the applicant. Further, in order to extract more money and to harass the opposite party, the applicant filed the present claim petition. Hence, prayed to dismiss the same.
5. In support of his case, the applicant got examined A.W.1 and got marked Exs.A-1 to A-9. Opposite party got examined R.Ws.1 and 2 and got marked Ex.B-1, in support of their case.
6. On the basis of the above pleadings, the following issue was framed by the Commissioner:
"Whether the applicant's injuries are related to the admittedly employment injuries received by him on 31.05.2010?"
7. After considering the pleadings and evidence on record, the Commissioner held that the applicant successfully proved his case. Hence, the claim petition was partly allowed holding that the opposite 4 MGP,J CMA_8_2012 & CMA_44_2014 party was liable to pay compensation and granted an amount of Rs.2,43,145/- towards compensation payable to the applicant.
8. Heard both sides.
9. Learned counsel for the opposite party i.e., appellant in C.M.A.No.8 of 2012 contended that the there is no employee and employer relationship between the applicant and the opposite party. It is his case that R.W.2, who was employed under the opposite party was examined before the Commissioner and he clearly stated that the applicant was not employed under the opposite party. Hence, the Commissioner has wrongly come to the conclusion that there was employee and employer relationship between them.
10. Learned counsel for the applicant i.e., appellant in C.M.A.No.44 of 2014 contended that the employee and employer relationship of the applicant and the opposite party was clearly established by the applicant before the Commissioner and compensation was accordingly granted. However, the Commissioner while determining the compensation has erred in not assessing the loss of earning disability and has wrongly taken the physical disability while determining the compensation. Further, the Commissioner also erred in granting 5 MGP,J CMA_8_2012 & CMA_44_2014 compensation without any interest. Hence, prayed to allow the appeal filed by the applicant and dismiss the appeal filed by the opposite party.
11. Now the points for determination are as follows:
"1. Whether the findings of the Commissioner with regard to employee and employer relationship between the applicant and opposite party suffer from any illegality?
2. Whether the findings of the Commissioner with regard to determination of the compensation and non-payment of interest suffer from any illegality?"
Point Nos.1 and 2:
12. This Court has perused the entire evidence and material placed on record, admittedly, there is no dispute with regard to occurrence of accident of the applicant in the premises of the opposite party. The same is supported by the medical certificate and police records produced by the applicant. The First Information Report No.119 of 2010 dated 19.07.2010 and the final charge sheet filed in the said case by the police after thorough investigation supports the case of the applicant with regard to employee and employer relationship between the applicant and the opposite party. In the said circumstances, the opposite party and R.W.2 cannot contend that there is no employee and employer relationship between the applicant and the opposite 6 MGP,J CMA_8_2012 & CMA_44_2014 party. This clearly shows that the opposite party in order to escape his liability as employer has got examined R.W.2. Therefore, this Court is of the considered opinion that the Commissioner has rightly held that there is employee and employer relationship between the applicant and the opposite party and the Commissioner has rightly held the same. Accordingly, the contention of the opposite party with regard to employee and employer relationship is rejected.
13. Coming to the aspect of calculation of the compensation, the Commissioner has determined the age of the applicant as 40 years. Further, in the absence of any evidence, though the applicant claimed to have been earning an amount of Rs.5,000/- per month, the Commissioner assessed the minimum wages of the deceased at Rs.4,858/- per month. The said aspects are not disputed and this Court also feels that there is no requirement of any interference. However, the medical certificate filed by the applicant, which is not disputed by the opposite party shows that the disability of the applicant was determined at 45%. The Commissioner ought to have determined loss of earning capacity of the deceased from such physical disability. But, the Commissioner instead of doing so, has calculated and determined the compensation at Rs.2,41,585/- 7
MGP,J CMA_8_2012 & CMA_44_2014 (Rs.4,858/- X 60/100 X 45/100 X 184.17). Therefore, this Court is inclined to determine the loss of earning capacity of the applicant based on the occupation of the applicant at 50% due to the injuries sustained by him in the accident and also based on the physical disability of 45%, which is determined in the medical certificate filed by him. After determining the loss of earning capacity at 50%, the calculation of the compensation is as follows:
Rs.4,858/- X 60/100 X 50/100 X 184.17 = Rs.2,68,409/-.
Thus, the compensation is determined at Rs.2,68,409/-.
14. Further, the Commissioner has granted an amount of Rs.1,060/- towards Court fee and Rs.500/- towards advocate fees. The same are hereby confirmed. After enhancement, the total amount of compensation comes to Rs.2,69,969/-.
15. The other contention of learned counsel for the applicant is that the Commissioner has not awarded any interest on the compensation amount. In this regard, it is apt to refer to the decision of the Hon'ble Supreme Court in the case of P.Meenaraj v. P. Adiguruswamy, wherein at para No.10, it is 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 8 MGP,J CMA_8_2012 & CMA_44_2014 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."
16. A perusal of the principle laid down in the above said decision, it is evident that the applicant is entitled for interest @ 12% per annum on the compensation amount from the date of accident till the date of deposit.
17. Under these circumstances, this Court is of the considered view that the impugned order passed by the Commissioner has to be modified. The compensation is enhanced from Rs.2,69,969/- with interest at 12% per annum from the date of accident till the date of deposit as discussed above.
18. In the result, the Civil Miscellaneous Appeal No.8 of 2012 is dismissed and Civil Miscellaneous Appeal No.44 of 2014 is allowed and the order dated 07.12.2011 in W.C./File/A/473/2011 (W.C./Mise/A/1919/ 2010) on the file of the Commissioner for 9 MGP,J CMA_8_2012 & CMA_44_2014 Employees' Compensation Act, 1923 and Assistant Commissioner of Labour, Sangareddy, Medak District, is modified and the compensation is enhanced from Rs.2,43,145/- to Rs.2,69,969/-. The applicant is also entitled for interest at 12% per annum on the said compensation amount from the date of accident till the date of deposit. There shall be no order as to costs. Miscellaneous applications pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date:
GVR