.THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.236 OF 2011
JUDGMENT:
Aggrieved by the order dated 07.01.2011 in W.C.No.396 of 2003 (NF) passed by the learned Commissioner for Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad, the applicant has filed the present Civil Miscellaneous Appeal to enhance the compensation.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Deputy Commissioner (hereinafter will be referred as "Commissioner").
3. The brief facts of the case are that the applicant has filed an application under the provisions of Workmen's Compensation Act, 1923 (amended as Employee's Compensation Act) claiming compensation of Rs.5,00,000/- from the opposite party Nos.1 and 2. It was alleged in the application that the applicant was employed under opposite party No.1 as cleaner on the lorry bearing No.AP 09 W 1489 (hereinafter will be referred as 'vehicle'), which was insured with opposite party No.2. On 08.02.2003 on the instructions of opposite party No.1 the applicant was proceeding on the vehicle and when the said vehicle reached the limits of Bapunagar 2 MGP,J CMA_236_2011 village near culvert, the driver of the vehicle drove the same in rash and negligent manner at high speed, due to which the vehicle went off the road and turned turtle. As a result, the applicant sustained fractures to right forearm, ribs and grievous injuries to other parts of the body. The other labourers travelling in the said vehicle have also sustained injuries. The applicant was shifited to Government Headquarters Hospital, Nizamabad and from there he was shifted to Thirumala Hospital, Hyderabad for better treatment. The applicant underwent surgery and after discharge, he took treatment under private doctors, for which he incurred Rs.2,00,000/-. A case in Crime No.25/2003 of Yedlapally Police Station was registered for the offence under Section 337 of the Indian Penal Code and thereafter charge sheet was laid for the offence under Section 338 of the Indian Penal Code. As on the date of accident, the applicant was aged about 20 years and drawing a monthly salary of Rs.5,000/- under the employment of opposite party No.1. Due to the injuries, the applicant became permanently disabled, as such, he was terminated from the employment. The accident occurred during the course and out of his employment under opposite party No.1 and as the insurance policy was subsisting as on the date of the accident, the opposite party No.1 being the owner and opposite party No.2 3 MGP,J CMA_236_2011 being the insurer, are jointly and severally liable to pay compensation of Rs.5,00,000/- to the applicant.
4. In spite of notice, the opposite party No.1, failed to file his written statement and thereby he was set ex-parte.
5. The opposite party No.2 filed written statement denying the averments of the application including age, wages of the applicant as cleaner under opposite party No.1, manner of accident. It is contended that the driver of the lorry is not having valid, effective driving license and that vehicle is not fit to ply on the road. It is contended that the driver of the vehicle did not drive the vehicle in rash and negligent manner and that the vehicle was falsely implicated in the case. It is further contended that the claim of the applicant was excessive, exorbitant and prayed to dismiss the application.
6. On behalf of the applicant, AWs 1 and 2 were examined and Exs.A1 to A5 were marked. Exs.A1 to A3 are the certified copies of FIR, injury certificate and charge sheet. Ex.A4 is the copy of insurance policy and Ex.A5 is the disability certificate issued by AW2. On behalf of opposite party No. 2, no oral evidence was adduced, however, Ex.B1 copy of insurance policy was marked. The learned Commissioner after considering the 4 MGP,J CMA_236_2011 oral and documentary evidence on record, by determining the wages of applicant as Rs.2,057/- per month and by applying the factor '224' for the age of injured being 20 years and fixing the loss of earnings @ 55%, has awarded compensation of Rs.1,52,053/-.
7. Aggrieved by the quantum of compensation awarded by the Commissioner, the applicant has filed the present appeal to enhance the compensation.
8. Heard Sri T. Sujan Kumar Reddy representing Sri Lakkadi Dayakar Reddy, learned counsel for the applicant and Sri K.S.N.Murthy, learned Standing Counsel for the opposite party No.2 and perused the record.
9. The main contention of the learned counsel for the applicant is that the learned Commissioner has erred in reducing the income of the applicant. As seen from the record, the applicant has not produced either documentary or oral evidence to show that he was being paid Rs.5,000/- per month as salary. On the other hand, the owner of the lorry i.e., employer of the applicant did not come forward to oppose or support the contention of the applicant. In such circumstances, learned Commissioner having no other option, has rightly 5 MGP,J CMA_236_2011 assessed the salary of the applicant, who was aged about 20 years as on the date of accident and was discharging the duties as labour, as Rs.2,057/- in pursuance of G.O.Ms.No.30 L.E.T. & F (Lab-II) Department, dated 27.07.2000. Thus, this Court is not inclined to interfere with the findings of the learned Commissioner so far as wages/salary/income of the applicant is concerned.
10. The other contention of the learned counsel for the appellant is that the learned Assistant Commissioner erred in reducing the percentage of disability and loss of earnings of the applicant and in fact, the learned Assistant Commissioner ought to have fixed the percentage of disability at 100%. Per contra, the learned Standing Counsel for the opposite party No.2 has submitted that the learned Commissioner has rightly fixed the loss of earning capacity of the applicant @ 55%. As seen from the record, the applicant examined himself as AW1, wherein he has reiterated the averments of the application. The applicant got examined the doctor, who treated him, as AW2. AW2 deposed in his chief examination that on 04.03.2004, he examined the applicant physically, clinically, verified the fresh x-rays and found one year old fracture of right forearm, right side chest. AW2 further deposed that he issued 6 MGP,J CMA_236_2011 Ex.A5 with the disability of 55%. He further deposed that the applicant cannot do the work of cleaner or hard work with the disability as shown in Ex.A5.
11. Coming to the percentage of disability and loss of earning capacity of the applicant, the learned Commissioner has fixed the loss of earning capacity @ 55% based on the disability fixed by AW2. There is no dispute that the accident occurred on 08.02.2003 and in the said accident the applicant has sustained grievous fracture injuries as evident from Exs.A1 to A3, A5. AW2 deposed that the applicant cannot do the work of cleaner or hard work. Learned counsel for the applicant has submitted that it is settled principle of law that when the injured is not capable of performing the duties as he used to do previously, the percentage of disability can be fixed at 100%. Admittedly, the injuries sustained by the applicant attract permanent partial disability and in fact, the injuries sustained by the applicant are non-schedule injuries. It is not the evidence of AW2 that the applicant is permanently disabled. It is not even the case of AW2 that the applicant cannot do any kind of work in future. Mere fractures to right forearm and chest do not amount to permanent disablement. The only difficult that is being faced by the applicant after the accident 7 MGP,J CMA_236_2011 was that the applicant cannot do any hard work. It is not the case of the applicant that he is a skilled worker and that due to fracture injuries sustained by him, he is unable to do such skilled work. Viewed from any angle, it cannot be said that the applicant has sustained permanent disability. Therefore, AW2 has rightly fixed the disability @ 55% and accordingly the learned Commissioner has fixed the loss of earning capacity of the applicant @ 55%.
12. The learned Commissioner has relied upon a decision in National Insurance Company Limited and Mubasir Ahmed and another 1, wherein the Apex Court held that loss of earning capacity is, therefore, not a substitute for percentage of physical disablement. It was further held in the said decision that without any basis or without indicating any reason, it cannot be held that there was 100% loss of earning capacity. In United India Insurance Company Limited v. S.K.Razak and others 2, the High Court for the erstwhile State of Andhra Pradesh held as follows:
"What is of significance in the evidence of both the witnesses is that they have spoken on the disability suffered by the claimant as a driver. Neither of them have deposed that the disablement has reduced the claimants earning capacity in every employment which he was capable of undertaking at that time. As noted above, the claimant has 1 2007 LLJ P 209 2 MANU/AP/0119/2015 8 MGP,J CMA_236_2011 merely stated that he is not working anywhere else, from which it can be inferred that though he is capable of undertaking works other than driving, he is not undertaking such works. In order to be entitled for 100% of loss of earning, it is necessary for the claimant to prove that he was not only disabled to driver, but also to perform any other work which he was capable of performing at the time of accident. The Commissioner has therefore committed a serious error in taking the loss of earning capacity at 100% without considering the fact that the claimant was capable of performing works other than driving."
13. Further, in T.J.Parameshwarappa v. the Branch Manager, New India Assurance Company Limited and others 3 the Honourable Supreme Court held as under:
"8. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
14. In Raj Kumar v. Ajay Kumar 4 the Honourable Supreme Court held as under:
"11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident 3 MANU/SC/1510/2022 4 (2011) 1 SCC 343 9 MGP,J CMA_236_2011 that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-
medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the 10 MGP,J CMA_236_2011 Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."
15. In view of the above discussion and also considering the principle laid down in the above said decisions and as the applicant failed to establish that he cannot do any work of any nature in future due to the injuries sustained by him and also taking into consideration the percentage of the disability of the applicant assessed by AW2 @ 55%, the contention of learned counsel for the applicant that learned Commissioner ought to have assessed the percentage of disability of the applicant @ 100% is unsustainable.
16. The other contention of the learned counsel for the applicant is that the learned Commissioner ought to have granted compensation towards medical expenses incurred by the applicant. As seen from the record, though the applicant contended that he incurred Rs.2,00,000/- towards medical expenses, he failed to adduce any evidence to that extent. Moreover, the applicant did not even depose in his evidence that he incurred Rs.2,00,000/- towards medical expenses. The applicant did not even file any medical bills or prescriptions to establish that he has incurred Rs.2,00,000/- towards medical 11 MGP,J CMA_236_2011 expenses. Thus, in the absence of any such evidence, the above contention of the learned counsel for the applicant that the learned Commissioner ought to have granted compensation towards medical expenses holds no water.
17. The learned counsel for the applicant contended that the order passed by the learned Commissioner is not awarding interest from the date of accident as contemplated in Work Compensation Act and law laid down by the Apex Court is not sustainable. In Shobha and others v. The Chairman, Viothalrao Shinde Sahakari Sakhar Karkhana Limited and others 5, the Honourable Supreme Court held as under:
"4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited 5 2022 (3) ABR1 12 MGP,J CMA_236_2011 with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed hereinabove, the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(3)(b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision."
18. In view of the principle laid down in the above said decision, it can be held that interest shall be awarded on the compensation from the date of accident. As seen from the impugned order, the learned Commissioner awarded interest on the compensation amount @ 12% in the event of failure to deposit the compensation amount within 30 days from the date of receipt of the order. Failure on the part of the learned Commissioner in awarding interest on the compensation amount from the date of accident is not justifiable.
19. Under these circumstances, since the learned Commissioner failed to award interest on the compensation 13 MGP,J CMA_236_2011 amount from the date of accident, this Court is inclined to interfere with the findings of the learned Commissioner to the extent of awarding interest from the date of accident.
20. Accordingly, the Civil Miscellaneous Appeal is allowed in part. The order dated 07.01.2011 in W.C.No.396 of 2003 (NF) passed by the learned Commissioner for Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad, is modified to extent of awarding interest at 12% per annum from the date of accident till the date of its deposit. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 08.09.2023 AS