Telangana High Court
M A Khayyum vs Shaik Ahmed And Another on 20 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.336 of 2014
JUDGMENT:
1. The Civil Miscellaneous Appeal is directed against order dated 17.07.2013 in W.C.No.7 of 2005 (NF) on the file of the Commissioner for Employees' Compensation-cum-Deputy Commissioner of Labour, Nizamabad (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 17.04.2004 and the same was partly allowed by the Commissioner granting compensation of Rs.2,29,789/-. Dissatisfied with the same, the present Civil Miscellaneous Appeal is filed at the instance of the applicant before the Commissioner seeking enhancement of compensation and grant of interest.
2. The appellant herein is applicant and respondents herein are opposite parties 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 TATA Sumo bearing No.AP 25 U 1276 under 2 MGP,J CMA_336_2014 the employment of opposite party No.1. On 17.04.2004, while the applicant was driving the said vehicle from Banswada to Nizamabad along with passengers, at about 08:00 PM, when the said vehicle reached near turning, Kamshetti village, Birkur Mandal, the applicant lost control over the vehicle and dashed a cyclist and the said vehicle turned turtle and the accident occurred. The applicant and other passengers of the said vehicle sustained injuries in the said accident. The applicant sustained fracture of left thigh, fracture of left collies, fracture of left clavicle, fracture of left ankle joint, injuries on head, chest, hands, legs, multiple and grievous injuries all over the body. Immediately, the applicant was shifted to Government Hospital, Banswada and later, he took treatment in private hospitals and underwent several operations and rod was inserted in his left leg. The applicant incurred an amount of Rs.80,000/- towards medical expenditure. In this regard, a case was registered in Crime No.36 of 2004 on the file of Birkur Police Station against the driver of the lorry.
4. It is further the case of the applicant that the said accident occurred during the course and out of his employment as driver under opposite party No.1. According to the applicant, he was 3 MGP,J CMA_336_2014 aged about 35 years as on the date of the accident and he was being paid an amount of Rs.4,000/- per month towards wages and Rs.50/- per day towards batha by opposite party No.1. Opposite party No.1 being the owner and opposite party No.2 being insurer of the vehicle involved in the accident are liable to pay compensation. Hence, the present claim application is filed by the applicant seeking compensation of Rs.3,00,000/- for the injuries sustained by him.
5. Opposite party No.1 filed his written statement and admitted the employment of applicant under him. He also admitted that he was owner of the TATA Sumo bearing No.AP 25 U 1276 and stated that the said vehicle was insured with opposite party No.2 under valid and effective policy as on the date of the accident. He admitted that the applicant was being paid an amount of Rs.4,000/- towards monthly wages and Rs.50/- towards batha per day. He also contended that the vehicle involved in the accident was insured with opposite party No.2, as such, if there is any liability opposite party No.2 alone is liable to pay. Therefore, prayed to dismiss case against him.
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6. Opposite party No.2 filed its written statement denying the averments of the claim application such as age, wages, employment of the applicant under opposite party No.1, occurrence of the accident and also injuries sustained by the applicant. It is also contended that the applicant was not having valid driving license as on the date of the accident. Opposite party No.2 prayed to dismiss the claim application as the compensation claimed by the applicant is excess and exorbitant.
7. In support of his case, the applicant got examined himself as A.W.1 and also examined A.W.2 and got marked Exs.A-1 to A-6. No oral or documentary evidence was adduced by opposite party No.1. On behalf of opposite party No.2, no oral evidence was adduced, but Ex.B-1 was got marked.
8. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
"1. Whether the injured/applicant MA. Khayyum met with an accident on 17-04-2004 during the course and out of his employment as driver on TATA Sumo bearing No.AP 25 U 1276 under the employment of 1 opposite party and sustained st injuries?
2. If yes, what is the percentage of the physical disability and consequent loss of earning capacity suffered by the applicant?
3. Who are liable to pay compensation? And 5 MGP,J CMA_336_2014
4. What is quantum of compensation entitled by the applicant?"
9. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.2,29,789/- towards compensation to the applicant. Dissatisfied with the same, the present appeal is filed seeking enhancement of compensation by the applicant.
10. Heard, the learned counsel for the appellant and the learned standing counsel for respondent No.2.
11. The main contention of the learned counsel for the applicant/appellant is that the Commissioner erred in not granting interest at 12% per annum from the date of accident on the compensation amount. Hence, prayed to modify the impugned order by allowing the appeal and granting interest.
12. Per contra, the learned counsel for respondent No.2/opposite party No.2 i.e., the insurance company contended that the Commissioner after considering all the aspects has awarded reasonable compensation and interest and interference of this Court is not necessary.
13. Now the point for determination is as follows: 6
MGP,J CMA_336_2014 "Whether the findings of the Commissioner with regard to determination of interest suffer from any illegality?"
Point:
14. This Court has perused the entire evidence and material placed on record. The applicant got examined himself as A.W.1 reiterating the contents of his claim application. Though, he was cross-examined nothing contrary was elicited in the same. In order to prove the injuries sustained by him, he got examined A.W.2, who is an Orthopedic Surgeon. A.W.2 deposed that he examined the applicant and also verified the previous medical record and found mal-united fracture of left femur, fracture of collies, fracture of left clavicle and fracture of left ankle joint and pain and suffering. He issued disability certificate by assessing the disability at 70% being partial and permanent in nature and determined the loss of earning capacity at 70%. In the cross- examination, he denied all the suggestions, which were put to him by opposite party No.2.
15. The Commissioner after considering both oral and documentary evidence placed on record by both the sides has rightly came to the conclusion that the applicant was employed 7 MGP,J CMA_336_2014 under opposite party No.1 and the accident occurred during the course and out of his employment. Based on the evidence of A.W.2 and documentary evidence placed on record by the applicant, the Commissioner rightly assessed the loss of earning capacity at 70%. Further, as opposite party No.2 did not adduce any evidence to prove its case the Commissioner held that both the opposite parties are jointly and severally liable to pay compensation to the applicant.
16. Coming to the quantum of compensation, the Commissioner based on the documentary evidence on record has rightly determined the age of the applicant as 35 years. Further, though, the applicant claimed that he was being paid an amount of Rs.4,000/- per month towards wages and Rs.50/- per day towards batha, as the applicant has not adduced any cogent and convincing evidence, the Commissioner has rightly taken minimum wages prevailing as on the date of accident for computing the compensation. Hence, this Court is of the considered opinion that the Commissioner has awarded just and reasonable compensation. Therefore, interference of this Court into the said aspect is unwarranted.
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17. Insofar as rate of interest is concerned, it is apt to refer to the decision of the Hon'ble Supreme Court in the case of Shobha v. The Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Ltd, wherein it is held as follows:
"6. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court insofar as awarding the interest @ 12% p.a. after the period of expiry of one month from 25.01.2017, is hereby quashed and set aside and it is observed and held that the appellants herein-original claimants shall be entitled to the interest @ 12% p.a. on the amount of compensation as awarded by the Commissioner from the date of the incident i.e., 29.11.2009.
Present appeal is allowed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs."
18. In view of the principle laid down in the above said case, it is evident that the applicant is entitled for interest at 12% per annum on the compensation amount from the date of accident. Hence, this Court is inclined to award interest at 12% per annum on the compensation amount granted by the Commissioner from the date of accident.
19. In the result, the Civil Miscellaneous Appeal is partly allowed by modifying the impugned order passed by the Commissioner to the extent of granting interest at 12% per annum from the date of accident. In all other aspects, the order of the Commissioner 9 MGP,J CMA_336_2014 stands confirmed. There shall be no order as to costs. Miscellaneous applications pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 20.02.2024 GVR