Telangana High Court
United India Insurance Co Ltd., ... vs K Venkatesh, Secunderabad And Anr on 16 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.207 of 2014
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against order dated 20.11.2013 in W.C.No.77 of 2012 on the file of the Commissioner for Employees' Compensation and Deputy Commissioner of Labour-I, Hyderabad (hereinafter referred to as 'the Commissioner'). The said claim application was filed by the applicant therein seeking compensation for injuries sustained by him in an accident that occurred on 02.04.2012 and the same was partly allowed by the Commissioner awarding compensation of Rs.4,22,987/-. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed at the instance of opposite party No.2 before the Commissioner i.e., the insurance company.
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 on piaggio pickup van auto bearing No.AP 29 U 2 MGP,J CMA_207_2014 2961 under the employment of opposite party No.1. On 02.04.2012, the applicant was on duty as driver on the said auto and that he was proceeding from Ibhrahimpatnam to Hyderabad side. While so, at about 22:00 hours, when the auto reached near Brahamanapally cross road, one tractor bearing No.AP 28 E 8703, which was being driven in high speed in rash and negligent manner by its driver, lost control and dashed the auto of the applicant. Due to which, accident occurred and the applicant sustained grievous injuries i.e., Grade II compound fracture both bones left leg and other injuries all over the body. Immediately, the applicant was shifted to Nikhil Hospital, Hyderabad, and from there he was shifted to Srestha Orange Hospital, wherein he underwent treatment as inpatient. The applicant underwent major operation and steel rods were inserted. The applicant was unable to move and could not do any work due to the accident and thereby, he suffered total and permanent disability. With regard to the accident, a case was registered in Crime No.265 of 2012 on the file of the Police Station Vanasthalipuram, Hyderabad.
3
MGP,J CMA_207_2014
4. It is further the case of the applicant that he was aged 26 years as on the date of the accident and that he was being paid an amount of Rs.6,000/- per month towards wages and Rs.100/- per day towards batha. Further, the accident occurred during the course and out of his employment under opposite party No.1. The auto involved in the accident was owned by opposite party No.1 and insured with opposite party No.2. Hence, the present claim application is filed seeking compensation of Rs.6,00,000/-.
5. Opposite party No.1 was set ex parte. Opposite party No.2 filed its counter denying the averments of the claim application such as age, wages, manner of the accident, employee and employer relationship of the applicant and opposite party No.1. Further, as the compensation claimed was excess and exorbitant, opposite party No.2 prayed to dismiss the claim application.
6. In support of his case, the applicant got examined himself as A.W.1 and got examined A.W.2 and got marked Exs.A-1 to A-12. Opposite party No.2 got examined R.W.1 and Exs.B-1 and B-2 were got marked.
4
MGP,J CMA_207_2014
7. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
"1. Whether the applicant sustained injuries in the accident on 02.04.2012 that arose out of and in the course of employment under the employment of the 1st opp.party?
2. If yes, what is the percentage of disability and consequent loss of earning capacity suffered by the applicant?
3. Who are liable to pay compensation to the applicant? And;
4. What is the amount of compensation entitled by the applicant?"
8. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.4,22,987/- towards compensation to the applicant. Aggrieved by the same, the present appeal is filed by opposite party No.2.
9. Heard both sides.
10. The main contention of the learned counsel for the appellant/opposite party No.2 is that the Commissioner has awarded huge amount towards compensation and also for the injuries which are non-schedule injuries. Further, the loss of earning capacity is also determined on higher side. It is also contended that the applicant got examined A.W.2-doctor, who did 5 MGP,J CMA_207_2014 not treat the applicant. Hence, prayed to allow the appeal and set aside the impugned order passed by the Commissioner.
11. Per contra, the learned counsel for respondent No.1/applicant contended that the Commissioner after considering all the aspects has awarded reasonable compensation and interference of this Court is unnecessary. Hence, prayed to dismiss the appeal.
12. Now, the point for determination is as follows:
"Whether the applicant is entitled for the compensation as granted by the Commissioner?"
Point:-
13. This Court has perused the entire evidence and documents placed on record by both the parties. The applicant got examined himself as A.W.1 reiterating the contents of the claim application such as manner of the accident and also injures sustained by him. Though, A.W.1 was cross-examined, nothing contrary was elicited in the same. In order to prove injuries sustained by the applicant, he got examined A.W.2, who is Orthopedic Surgeon. A.W.2 deposed that on 06.09.2013, he examined the applicant and found Grade-II compound fracture of both bones left leg. The 6 MGP,J CMA_207_2014 applicant was treated in Nikhil Hospital and Sreshta Orange Hospitals with ilizaror ring fixation in left leg and wound debridement was done. He further deposed that he examined the applicant both clinically and radiologically and has gone through all the previous medical records. He opined that the applicant developed stiffness and limping while walking and because of the said problems, the applicant cannot sit, squat and cannot drive the vehicle. A.W.2 estimated the percentage of permanent disability at 45% basing on the Kessler's guidelines and loss of earning capacity at 70% and issued disability certificate under Ex.A-5. In the cross-examination, he admitted that immediately after the accident, he did not treat the applicant and also admitted that after 18 months of discharge, the disability certificate was issued by him. He denied the suggestion that the injuries of the applicant were healed and the applicant is attending his driving duties. He admitted that he is not member of medical board.
14. On behalf of opposite party No.2, R.W.1, who is Administrative Officer of opposite party No.2 was examined and got marked Exs.B-1-copy of insurance policy and B-2-photostat copy of driving license extract. R.W.1 deposed that the driver of 7 MGP,J CMA_207_2014 the vehicle must hold a valid driving license with transport endorsement and in the present case, there is no such endorsement, as such, opposite party No.2 is not liable to pay compensation. In the cross-examination, R.W.1 admitted that the insurance policy was valid and was in force as on the date of the accident. He also admitted that premium was paid by opposite party No.1 to cover the risk of the driver of the vehicle. He denied that the applicant was having valid and effective driving license as on the date of the accident. However, he accepted that as per Ex.B-2 the driving license of the applicant is valid for non- transport vehicle.
15. Apart from the evidence of the A.W.2, the applicant also placed reliance on Exs.A-1 to A-12. A perusal of Ex.A-1 shows that the Vanasthalipuram Police have registered case in Crime No.265 of 2012 and took up investigation and laid charge sheet under Ex.A-2. Ex.A-3 is MLC issued by Nikhil hospital, Ex.A-4 is discharge summary of Nikhil Hospital, Ex.A-5 is discharge bill of Nikhil Hospital for an amount of Rs.12,000/-, Ex.A-6 is discharge summary of Sreshta Orange Hospital and Ex.A-12 is X-ray. All these documents clearly disclose the treatment underwent by the 8 MGP,J CMA_207_2014 applicant. Ex.A-7 is disability certificate issued by A.W.2. Ex.A-8 is driving license of the applicant, Ex.A-9 is registration certificate of auto, Ex.A-10 is copy of insurance policy and Ex.A-11 is fitness certificate. These documents show that opposite party No.1 is owner of the auto involved in the accident and the same was insured under opposite party No.2. Therefore, there is no dispute with regard to accident, injuries sustained by the applicant and also treatment undergone by the applicant.
16. The main contention of the learned counsel for the appellant/opposite party No.2 is that the evidence of A.W.2 cannot be taken into consideration as he is not treating doctor of the applicant at any point of time. Further, A.W.2 is not member of the medical board, as such he is not competent to issue disability certificate and the same cannot be taken into consideration.
17. Admittedly, the applicant met with an accident and also sustained grievous injuries. Therefore, it is irrelevant as to who has treated the applicant. Moreover, in Raj Kumar v. Ajay Kumar 1 the Hon'ble Supreme Court held as under:
1 (2011) 1 SCC 343 9 MGP,J CMA_207_2014 "13. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."10
MGP,J CMA_207_2014
18. The Supreme Court in the case of T.J.Parameshwarappa v. The Branch Manager, New India Assurance Company Limited and others 2, held as follows:
"The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability."
19. In view of the principle laid down in the above said decisions, it is not necessary that the doctor, who has treated the injured, has to give evidence with regard to disability of the injured, however, the doctor, who has examined the applicant subsequent to the accident can also depose about the disability of the injured. In the case on hand, A.W.2 can be considered as competent medical officer to assess the disability. In such circumstances and by considering the evidence of A.W.1 corroborated with the evidence of A.W.2 coupled with the documentary evidence in the form of Exs.A-1 and A-2, the disability certificate under Ex.A-7 can certainly be taken into consideration, though the said certificate was not issued by competent Medical Board. Hence, the above contention of the 2 Civil Appeal Nos.8598-8599 of 2022 (arising out of Special Leave Petition (C) Nos.11730-11731 of 2021 decided on 18.11.2022 11 MGP,J CMA_207_2014 learned counsel for the appellant/opposite party No.2 that the learned Commissioner erred in considering the evidence of A.W.2, is unsustainable.
20. It is pertinent to state that the police after thorough investigation has laid charge sheet against the driver of the tractor bearing No.AP 28 E 8703 and no charge sheet was filed against the applicant, who was driving the auto involved in the accident. Furthermore, except taking plea that the applicant was not having valid driving license, opposite party No.2 has not adduced any evidence by summoning Road Transport Authorities. Therefore, the contention of the learned counsel for the appellant/opposite party No.2 with regard to driving license of the applicant is unsustainable.
21. Under these circumstances, this Court is of the considered opinion that the Commissioner after considering the age, wages, loss of earning capacity and all other aspects has rightly awarded just and reasonable compensation and interference of this Court is unwarranted. The appeal is devoid of merits and the same is liable to be dismissed.
12
MGP,J CMA_207_2014
22. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated 20.11.2013 in W.C.No.77 of 2012 on the file of the Commissioner for Employees' Compensation and Deputy Commissioner of Labour-I, Hyderabad. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 16.02.2024 GVR