THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.991 OF 2011
JUDGMENT:
Aggrieved by the order passed by the learned Commissioner for Workmen's compensation and Assistant Commissioner of Labour-IV, Hyderabad in W.C. No.33 of 2010 dated 14.07.2011, the opposite party No.2-National Insurance Company Limited has filed the present appeal.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the Commissioner.
3. The brief facts of the case, are as under.
The applicant has filed application against opposite party Nos.1 and 2, who are owner and insurer of the lorry bearing No. AP 29 T 3267 claiming compensation of Rs.5,00,000/- on account of the injuries sustained by him in the accident that occurred on 17.1.2010. According to the applicant, he is working as a cleaner on the lorry bearing No. AP 29 T 3267 under the employment of opposite party No.1 on a monthly wages of Rs.4,000/- and daily bata of Rs.50/-. On 17.1.2010 he was proceeding on the said lorry from Kurnool to Hyderabad and at about 22-15 hours when the lorry reached K.G.N.Dhaba, Jadcherla, the driver of the lorry drove it in a rash and negligent 2 MGP,J Cma_991_2011 manner at high speed and dashed another lorry. As a result, the applicant has sustained fracture of bilateral shaft femur m/3 and other injuries all over the body and immediately after the accident, the applicant was shifted to Government Hospital, Badepally and after first aid, he was shifted to Osmania General Hospital, Hyderabad, for better treatment, where he underwent treatment as inpatient and underwent major operation. It is further contended that during the course of employment and out of his employment as a cleaner on the said lorry under the employment of opposite party No.1, he has sustained injuries. Based on the complaint, Police, Jadcherla registered a case in crime No.17 of 2010. According to the applicant, he was aged 22 years as on the date of accident and was getting Rs.4,000/- per month as a cleaner under opposite party No.1. Thus, the opposite party Nos.1 and 2 being the owner and insurer of the lorry, are jointly and severally liable to pay compensation to the applicant.
4. Opposite party No.1 remained ex parte; Opposite party No.2 filed counter denying the averments of the application, age and avocation of the applicant, manner of accident and employee-employer relationship between the applicant and opposite party No.1. It is contended that the driver of the lorry 3 MGP,J Cma_991_2011 is not having valid driving license as on the date of accident and compensation claimed by the applicant is excessive and exorbitant and therefore, prays to dismiss the application.
5. Before the Commissioner, on behalf of the applicant, AWs.1 and 2 were examined and got marked Exs.A1 to A11. On behalf of opposite party No.1, none were examined and no document was marked. On behalf of opposite party No.2, no witnesses were examined, however, copy of insurance policy was marked as Ex.B1.
6. The Commissioner after considering the oral and documentary evidence available on record, has awarded the compensation of Rs.3,63,376/-. Aggrieved by the same, the Insurance Company has preferred the present appeal.
7. Heard Smt.I.Maamu Vani, learned Standing Counsel for the appellant-Insurance Company and Smt.Yasmini Seema, learned counsel represented on behalf of Sri C.Vikram Chandra, learned counsel for the applicant and perused the record.
8. The main contention of the learned Standing Counsel for the appellant-Insurance Company is that the learned Commissioner has awarded compensation of Rs.3,63,376/- by taking into consideration the disability at 60% and loss of 4 MGP,J Cma_991_2011 earning capacity at 75%, which is on higher side. Hence prays to allow the appeal by setting aside the Order passed by the learned Commissioner.
9. On the other hand, the learned counsel for the applicant argued that after considering the evidence on record, the learned Commissioner has rightly awarded the compensation to the applicant. Hence prayed to dismiss the appeal.
10. Perused the evidence available on record. The applicant as AW.1 has reiterated the contents of his application and deposed about the manner of accident, injuries sustained by him and the wages received by him from the opposite party No.1. In order to prove the injuries sustained by him in the accident, he got examined Dr.G.Subash Rao, Orthopaedic Surgeon as AW.2. AW.2 deposed that he examined the applicant on 4.2.2011 and found that he sustained fracture of shaft of both legs M/3rd and he was treated in the Government Hospital, Badepally and later at Osmania General Hospital, Hyderabad, and operated on 28.1.2010 by way of inter locking nailing. He further stated that the applicant developed stiffness of both knee with painful movements and painful limping. He further stated that with the above disability, the applicant cannot sit and squat on the ground. He further examined the 5 MGP,J Cma_991_2011 applicant clinically and radiologically and also verified the old medical records of the applicant and assessed the partial and permanent physical disability at 60% and loss of earning capacity at 100% and issued Ex.A5 disability certificate. He also stated that the applicant cannot work as a cleaner. In the cross-examination AW.2 accepted that he has not treated the applicant at any point of time and that as per the wound certificate, the applicant has sustained only lacerated injuries and in the above certificate, there are no fracture injuries. As per Ex.A4 discharge certificate, there is no disability sustained by the applicant. He denied the other suggestions that the applicant has not suffered any disability and he has assessed the disability on higher side. He also stated in his cross- examination that the applicant developed limping and stiffness of both knee joints resulting his inability to sit and squat.
11. It is pertinent to state that though the learned Standing Counsel for the appellant-Insurance Company argued at length on various aspects, but the Insurance Company has not adduced any contra evidence nor examined any witness nor filed any document.
12. Now coming to the disability assessed by AW.2, admittedly, the applicant is working as a cleaner in the lorry of 6 MGP,J Cma_991_2011 opposite party No.1 at the time of accident. Therefore, the work of a cleaner on the lorry is very high and also assisting the driver while travelling, is not easy with the disability sustained by him in the accident. Further the Orthopedic Surgeon who is a competent person to assess the disability has clearly stated that he assessed the disability sustained by AW.1 as partial and permanent physical disability at 60% and loss of earning capacity at 100%.
13. The contention of the learned counsel for the appellant is that the learned Commissioner erred in taking the loss of earning capacity as 75% when the disability was only 60%. The Honourable Supreme Court in Jithendran v. The New India Assurance Company Limited and another 1, held as under:
"13. The extent of economic loss arising from a disability may not be measured in proportions to the extent of permanent disability. This aspect was noticed in Raj Kumar Vs. Ajay Kumar and Anr.4, where Justice R.V. Raveendran made the following apt observations:
"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of 1 Civil Appeal No.6494 of 2021 (Arising out of SLP(C) No.13213 OF 2019) decided on 27.10.2021 7 MGP,J Cma_991_2011 economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced shows 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."
14. In view of the principle laid down above, it is clear that extent of economic loss arising from a disability may not be measured in proportions to the extent of permanent disability. 8
MGP,J Cma_991_2011 Moreover, it is observed that AW2 i.e., the doctor has assessed the partial permanent disability at 60% and loss of earning capacity at 100%. However, the learned Commissioner by considering the nature of injuries sustained by the applicant and the nature of the duties discharged by the applicant, has observed that the applicant had bilateral fracture shaft femur M/3rd and he developed stiffness of both knee with painful movements and painful limping, as such it was not possible for the applicant to work as cleaner on the vehicle with same efficiency as he was doing on the date of the accident. Thus, the learned Commissioner, has rightly fixed the percentage of loss of earning capacity of the applicant at 75%. Therefore, this Court is not inclined to interfere with the findings of the learned Commissioner, so far as percentage of loss of earning capacity of the applicant.
15. Coming to the quantum of compensation, as stated above, the learned Commissioner has taken into consideration the loss of earning capacity at 75%. Though the applicant has stated that he used to earn Rs.4,000/- per month, as no documentary proof is filed by the applicant to prove his wages and opposite party No.1 has not entered into the witness box and no salary certificate is filed, the learned Commissioner has taken the 9 MGP,J Cma_991_2011 income of the applicant as Rs.3,647.75 considering the minimum wages and by applying relevant factor of '221.37', awarded Rs.3,63,376/- towards compensation. Further the learned Commissioner also awarded an amount of Rs.726/- towards stamp fee and Rs.500/- towards Advocate fee. Thus in all, the learned Commissioner has awarded Rs.3,64,602/- to the applicant, which is just and reasonable. Therefore, this Court does not find any ground to interfere with the well reasoned order passed by the learned Commissioner. Hence, there are no merits in this Civil Miscellaneous Appeal and it is liable to be dismissed.
16. 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 01.09.2023 PGP