Telangana High Court
United India Insurance Co Ltd., vs B.Mahesh And Another on 2 August, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
CIVIL MISCELLANEOUS APPEAL No.641 of 2015
JUDGMENT:
This Civil Miscellaneous Appeal is filed by the appellant - Insurance Company - opposite party No.2 (for short "O.P.2") aggrieved by the order dated 13.07.2015 passed in W.C.No.143 of 2013 by the Commissioner for Employee's Compensation - cum - Deputy Commissioner of Labor-I, Hyderabad.
2. The respondent No.1 was the applicant workman, who was employed as a driver by respondent No.2 - opposite party No.1 (for short "O.P.1"). The respondent No.1 filed an application claiming compensation of Rs.5.00 lakhs against O.Ps.1 and 2 for the injuries sustained by him in an accident that occurred on 28.04.2013 alleged to be during the course of and out of his employment with O.P.1. The applicant stated that on 27.04.2013 as per the instructions of O.P.1, he along with passengers started from Suryapet and was proceeding towards Tirupati, on the way at about 04:30 AM on 28.04.2013, when they reached near Maipadu Bridge situated at the outskirts of Nellore Town on National Highway No.5, the applicant was overtaking a lorry. The driver of the lorry, who was proceeding in front of the car of the applicant going in high speed applied sudden brake, due to which the car of the applicant hit the 2 Dr.GRR, J cma_641_2015 lorry from its behind and the applicant sustained fracture injuries to his left leg, left elbow and other multiple injuries all over the body. Immediately, he was shifted to Government Hospital, Nellore and from there to Narayana General Hospital, Nellore and later he was shifted to Area Hospital, Suryapet, where he was treated as in-patient and surgeries were conducted on him. The applicant stated that he became permanently disabled due to the said accident and lost his earning capacity. PS Nellore Rural registered a case in Crime No.173 of 2013 under Section 337 and 338 of IPC. He stated that he was paid a wage of Rs.6,500/- per month and batta of Rs.100/- per day by O.P.1 and that he was aged 22 years as on the date of accident.
3. O.P.1 filed counter admitting the employment of the applicant as driver, the monthly wages as claimed by the applicant and that the accident occurred to the applicant during the course of and out of his employment. But, he contended that his Tavera Car was insured with O.P.2 and the said policy was valid and subsisting. As such, the O.P.2 - Insurance Company alone was liable to pay compensation to the applicant.
4. O.P.2 filed counter calling for strict proof of the petition averments along with documentary evidence.
5. The applicant examined himself as AW.1 and got examined the Orthopedic Surgeon, who issued the disability certificate as AW.2 and an eye- 3
Dr.GRR, J cma_641_2015 witness to the accident, who travelled in the same car as AW.3 and got marked Exs.A1 to A7 on his behalf. O.P.1 was examined as RW.1. Exs.B1 and B2 were marked on his behalf. The Administrative Officer of the Insurance Company - O.P.2 was examined as RW.2. Ex.B3, the copy of the insurance policy was marked on their behalf.
6. On considering the oral and documentary evidence on record, the learned Commissioner for Employee's Compensation - cum- Deputy Commissioner of Labor - I, RTC 'X' Roads, Hyderabad held that the applicant was workman within the meaning of the Workmen's Compensation Act (for short "the Act"), 1923. He worked as driver on the Tavera Car bearing No.AP-24-AT-7842 under the employment of O.P.1 and met with an accident on 28.04.2013 and sustained injuries in the accident that arose out of and in the course of employment.
7. Considering the evidence of AW.2, the Orthopedic Surgeon, the learned Commissioner observed that as per Section 2(1)(i) of the Act, AW.2 was competent to assess the physical disability of the applicant. AW.2 stated that the applicant developed stiffness of left ankle and left elbow and because of the said disabilities, he could not drive the vehicle and assessed the partial and permanent disability as 50% and loss of earning capacity as 80%. The learned Commissioner considering that it would not be possible to a person who 4 Dr.GRR, J cma_641_2015 suffered with such disabilities as noted in Ex.A4 (i.e. stiffness of left ankle and left elbow) to work as a driver, had considered the loss of earning capacity of the applicant as 70%.
8. Considering that the insurance policy was valid as on the date of accident and covering the risk of the applicant - driver, the learned Commissioner held both O.Ps.1 and 2 jointly and severally liable to pay compensation to the applicant and by applying the minimum rates of wages for the persons employed in Public Motor Transport had taken the basic wage as Rs.4,102/- for the category of Light Vehicle Driver and the Variable Dearness Allowance (for short "VDA") as Rs.2,880/- per month at the relevant time of accident and considered the total wage of applicant as Rs.6,982/- per month and by considering the age of the applicant as 22 years and assessing the loss of earning capacity as 70%, assessed the compensation entitled by the applicant as Rs.6,49,154/- and along with stamp fee and advocate fee directed O.Ps.1 and 2 to deposit an amount of Rs.6,51,952/- with interest @ 12 % per annum on the amount of compensation awarded from 29.05.2013 till the date of realization.
9. Aggrieved by the said order of the learned Commissioner, the O.P.2 - Insurance Company preferred this appeal.
10. Heard the learned counsel for the appellant - Insurance Company - O.P.2 and the learned counsel for the respondent No.1 - applicant. 5
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11. Learned counsel for the appellant contended that the learned Commissioner erred in coming to the conclusion that the applicant sustained injuries during the course of his employment and due to the said injuries, he suffered with 70% loss of earning capacity. As AW.2, the Orthopedic Surgeon assessed the disability of the applicant as 50%, the same might be taken into consideration and prayed to modify the order passed by the learned Commissioner.
12. Learned counsel for the respondent No.1 - applicant on the other hand contended that an appeal from an order of the Commissioner could be entertained only if there existed a substantial question of law. No substantial question of law arose out of this matter and prayed to dismiss the appeal.
13. As observed by the Hon'ble Apex Court in Fulmati Dhramdev Yadav and another v. New India Assurance Company Limited & another 1, as per Section 30 of the Workmen's Compensation (Amendment) Act, 2009, by which the word "workmen" has been substituted by "employees" and rechristened as the Employees Compensation Act, 1923, an appeal shall lie to the High Court only if there exists a substantial question of law. 1 2023 INSC 790 6 Dr.GRR, J cma_641_2015
14. The Hon'ble Apex Court further held that:
21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings.
15. The 2-Judge Bench of the Hon'ble Apex Court in North - East Karnataka Road Transport Corporation v. Sujatha 2, held that:
"12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."
16. The 2-Judge Bench of the Hon'ble Apex Court in Golla Rajamma & Others v. Divisional Manager & Another 3, also observed that:
"Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has 2 (2019) 11 SCC 514 3 (2017) 1 SCC 45 7 Dr.GRR, J cma_641_2015 missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act."
17. Thus, the Commissioner is the last authority on the facts involved in the case. No substantial question of law is raised by the appellant - Insurance Company in the grounds of appeal and also no substantial of law is admitted by this Court while admitting the appeal.. The contentions raised by the learned counsel for the appellant - Insurance Company on the aspects of percentage of disability or whether the insured vehicle was given on hire to the persons, who travelled from Suryapet to Tirupati and with regard to the assessment of income of the applicant are all questions of facts, which were answered by the learned Commissioner. This Court also observes that the conclusions arrived at by the learned Commissioner were a possible view extinguishing possibility of perversity in findings. As the scope of the appeal is limited only to substantial question of law and no perversity could be demonstrated by the learned counsel for the appellant in the order of the learned Commissioner, the appeal is dismissed confirming the order passed by the learned Commissioner in W.C.No.143 of 2013 dated 13.07.2015.
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18. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order passed by the learned Commissioner in W.C.No.143 of 2013 dated 13.07.2015 and the respondent No.1 - applicant is permitted to withdraw the balance 50% of the compensation amount deposited by the appellant - Insurance Company.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 02nd August, 2024 Nsk.