Telangana High Court
Cheelam Narayana vs G.Narasimha Reddy And Another on 5 July, 2024
HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.1121 of 2012
JUDGMENT:
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1. Aggrieved by the order dated 29.06.2012 passed in W.C.No.41 of 2004 NF, on the file of the learned Commissioner for Employees's Compensation and Deputy Commissioner of Labour, Nizamabad (for short, 'the Commissioner'), the Applicant therein filed the present Appeal seeking to modify the order awarded by the learned Commissioner by enhancing the compensation amount.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Commissioner.
3. The brief facts of the case are that the applicant filed a claim application under the provisions of Workmen's Compensation Act, 1923 (for short, 'the Act') seeking compensation of Rs.4,00,000/- along with interest on account of the injuries sustained by him in an accident that occurred on 22.02.2002. It is stated by the applicant that he used to work as 'Labour' under the employment of opposite party No.1 on his Tractor bearing No.ATJ1620 and Trolley bearing No.AP-25B-3835. On 22.02.2002, when he was proceeding as Labour along with other labours in Trolley bearing No.AP-25B-3835 towed to the Tractor bearing No.AT-J-1620 under the instructions of opposite party No.1 from Kalpal Thanda to 2 MGP,J CMA.No.1121 of 2012 Bhaiorapoor Thanda, on the way at about 8.00 a.m., the driver of the said Tractor drove it in a rash and negligent manner at a high speed due to which the tractor and trolley turned turtle culminating into the accident. As a result, the applicant along with other labourers sustained injuries and the applicant sustained fracture injuries on pelvis superior public ramus right side, injuries on shoulder, head, hands, legs, back, chest and other parts of the body. Immediately, the applicant was shifted to Hospital, thereafter took treatment under private doctors. Due to the said injuries, the applicant became permanently disabled and was removed from employment by his employer. Based on a complaint, P.S., Nizamabad Rural, registered a case in Crime No.34 of 2002 under Sections 337 and 338 IPC and filed charge sheet under Section 338 IPC. The applicant further stated that at the time of accident, he was aged 33 years and was being paid salary of Rs.4,000/- per month and as the subject Tractor and Trailer bearing Nos. ATJ 1620 and AP-25B-3835 were insured with opposite party No.2 and the insurance was subsisting at the time of accident, hence, opposite party No.1- owner of the subject Tractor and Trailer and opposite party No.2, who is the insurer, both are liable to pay compensation to the applicant. 3
MGP,J CMA.No.1121 of 2012
4. Opposite party No.1, who is the owner of the subject Tractor and Trailer, filed his written statement and admitted the employment of the applicant as labourer working under him. He also stated that after the accident, due to the disability, the applicant was not attending to his duties and further stated that the compensation claimed is excess and exorbitant and as the subject Tractor and Trailer were insured with opposite party No.2 vide insurance cover note No.38268 valid from 13.09.2001 to 12.09.2002, hence, opposite party No.2 alone is liable to pay compensation and prayed to dismiss the claim made against him.
5. Opposite party No.2 filed its written statement by denying the employment of the applicant as labourer under opposite party No.1 on his Tractor bearing No.ATJ 1620 and Trolley bearing No.AP-25B-3835, age, wages paid to the applicant, employee- employer relationship and contended that neither the applicant nor the opposite party No.1 informed about the accident . It is also contended by opposite party No.2 that on verification of the insurance particulars, it was found that only Tractor was insured with them vide policy bearing No.551302/2001/6703218 valid from 13.09.2001 to 12.09.2002 and no premium was paid to cover the risk of labourers. It is further contended that the driver was not having valid driving license to drive the vehicle and the vehicle 4 MGP,J CMA.No.1121 of 2012 was not road worthy and lacks fitness certificate and that the amount of compensation is excess and exorbitant and hence, prayed to dismiss the claim against it.
6. Based on the above pleadings, the learned Commissioner had framed the following issues:-
(i) Whether the applicant met with an accident on 2.02.2002 at about 8.00 a.m. during the course and out of his employment as labourer on the Tractor bearing No.ATJ 1620 and Trolley bearing No.AP-25B-3835 under the employment of opposite party No.1 and he sustained injuries in the said accident?
(ii) If yes, what is the percentage of physical disability and consequent loss of earning capacity suffered by the applicant?
(iii) Who are liable to pay compensation to the applicant and
(iv) What is the amount of compensation entitled by the applicant?
7. Before the Commissioner, the applicant himself was examined as AW1. He reiterated the contents made in the claim petition that he was employed by opposite party No.1 as labour on his Tractor bearing No.ATJ 1620 and Trolley bearing No.AP-25B- 3835 and on 22.02.2002, under the instructions of opposite party No.1, he, along with other labourers proceeded in a Trolley towed to the Tractor from Kalpol Thanda to Bhairapoor Thanda and on 5 MGP,J CMA.No.1121 of 2012 the way at about 8.00a.m., the driver of the said tractor drove it in a rash and negligent manner at a high speed due to which the Tractor and Trolley turned turtle resulting into an accident. As a result, he sustained fracture injuries on pelvis superior public rami right side and also injuries on head, right shoulder, right hand, both legs and other parts of his body. Immediately, he was shifted to the hospital and thereafter, undergoing treatment under private doctors and due to the said injuries, he became permanently disabled and was removed from his employment by opposite party No.1 and hence, filed claim petition against opposite party Nos.1 & 2 seeking to award compensation along with interest. In order to prove about the injuries sustained to him, he got examined AW2, who is an Orthopedic Surgeon.
8. AW2, who is an Orthopedic Surgeon, deposed in his evidence that on 21.01.2012, he examined the applicant, verified old records and found fracture of superior pubic ramus right with malunion causing inability to bend and lift weights and assessed permanent partial disability @ 55%, functional disability@ 55% and loss of earning capacity @ 55% and issued Ex.A4-Disability certificate. He also subjected the applicant to various exercises and took X-rays and came to a conclusion that the applicant cannot lift heavy weights, cannot do hard work, cannot sit and stand for a long time. 6
MGP,J CMA.No.1121 of 2012 The applicant, in support of his evidence, got marked Exs.A1 to A8 on his behalf. Ex.A1 is the FIR in Crime No.34 of 2002 registered by Police of Nizamabad Rural Police Station based on a complaint lodged by Sri Vadla Srinivas. Ex.A2 is the charge sheet filed for the offence under Section 338 IPC. Ex.A3-injury certificate shows that the applicant who was aged 33 years, sustained grievous fracture injury to pelvis superior ramus right side besides contusion on right shoulder. Ex.A4-Disability certificate shows that the applicant sustained 55% permanent partial disability. Ex.A5 =Ex.B1-Insurance policy shows that the subject Tractor was insured with opposite party No.2 and the insurance policy was valid from 13.09.2001 to 12.09.2002. Exs.A6 & A7 are the medical bills. Ex.A8 is the copy of judgment in O.P.No.395 of 2003, on the file of the Court of Motor Accidents Claims Tribunal, Nizamabad, which shows that one of the labourers viz., M.Sailoo, who was involved in the alleged accident, was awarded with compensation by opposite parties. Though Opposite party No.2 cross-examined both AW1 & AW2,nothing adverse was elicited from them to disbelieve their version.
9. On behalf of opposite party No.2, RW1, who is working as Assistant in opposite party No.2/Insurance Company was examined. During his cross-examination, he admitted that the 7 MGP,J CMA.No.1121 of 2012 policy was in force at the time of accident and he also admitted that without tractor, trolley cannot move.
10. The learned Commissioner, after considering the evidence, and documents available on record, by applying the minimum rates of wages which are applicable for a labourer as per G.O.Ms.No.30 LET & F (Lab-II) Department, dated 27.07.2000, percentage of disability sustained by him and by applying relevant factor, had awarded reasonable compensation of Rs.1,62,801/- payable by both opposite party Nos.1 & 2 jointly and severally within a period of thirty (30) days from the date of receipt of order failing which they are liable to pay interest @ 12% per annum.
11. Dissatisfied with the said compensation amount, the appellant/applicant filed the present Appeal seeking for enhancement of the same.
12. Heard learned counsel for Appellant as well as learned counsel appearing for the respondents.
13. The contentions raised by the learned counsel for appellant are that the learned Commissioner ought to have considered disability @ 100%, ought not to have reduced monthly wages of the applicant in the absence of contra evidence and finally, ought to have awarded interest @ 12% per annum from the date of accident 8 MGP,J CMA.No.1121 of 2012 till the date of deposit and requested to allow the appeal by enhancing the compensation awarded by the Commissioner.
14. Per contra, learned counsel for respondents stated that the learned Commissioner, after considering all the aspects, had awarded reasonable compensation for which interference of this Court is unwarranted.
15. Now the point that emerges for consideration is, Whether the order passed by the learned Commissioner requires interference of this Court?
POINT:-
16. This Court has perused the entire evidence and documents filed. As seen from the record, it is evident that the appellant, who worked as a Labourer under the employment of Opposite party No.1 on his Tractor bearing No.ATJ 1620 and Trolley bearing No.AP-25B-3835, sustained grievous injuries which resulted in sustenance of 55% permanent disability in an accident that occurred on 22.02.2002. The contention raised by the learned counsel for the appellant is that as the appellant sustained 55% permanent partial disability, he cannot lift heavy weights, cannot do hard work, cannot sit and stand for a long time to both legs and hence, his functional disability can be treated as 100%. In this regard, it is pertinent to refer the evidence of AW2, who is an Orthopaedic surgeon and who after thoroughly examining the 9 MGP,J CMA.No.1121 of 2012 appellant and after verifying the old records, found that the appellant sustained fracture of superior pubic ramus right with malunion causing inability to bend and lift weights and assessed permanent partial disability @ 55% and issued Ex.A4-Disability certificate. The learned Commissioner, taking into consideration the evidence of AW2, had rightly fixed the disability @ 55% and calculated the compensation. This Court is not inclined to interfere with the conclusion arrived at by the learned Commissioner, which is in proper perspective.
17. The next contention of the learned counsel for appellant is with regard to income of the appellant. Though the appellant was being paid wages of Rs.4,000/- per month, but the learned Commissioner did not consider the same and fixed the minimum rates of wages payable for a labourer. In this regard, it is pertinent to state that as the appellant failed to produce any documentary proof evidencing that he is being paid wages of Rs.4,000/- per month, hence, the learned Commissioner had fixed the minimum rates of wages for computing compensation.
18. The other contention of the learned counsel for appellant was that the learned Commissioner erred in awarding interest from the date of default of deposit of the compensation amount and ought to have awarded interest @ 12% per annum from the date of accident 10 MGP,J CMA.No.1121 of 2012 till the date of deposit. As seen from the impugned order, the learned Commissioner awarded interest on the compensation amount from the date of default of deposit of the compensation amount by the opposite parties. In Shobha and others v. The Chairman, Viothalrao Shinde Sahakari Sakhar Karkhana Limited and others 1, 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 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 1 2022 (3) ABR1 11 MGP,J CMA.No.1121 of 2012 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."
In view of the principle laid down in the above said citation, it is evident that the applicant is entitled for interest @ 12% per annum on the compensation amount from the date of accident but not from the date of default of payment of compensation. Hence, this Court is inclined to award interest @ 12% per annum from the date of accident.
19. Insofar as rate of interest is concerned, as per the decision of the Honourable Supreme Court in P. Meenaraj v. P. Adigurusamy 2, it is held as under:
"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo, this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there 2 Civil Appeal No 209 of 2022, decided on 6 January 2022 12 MGP,J CMA.No.1121 of 2012 appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."
20. In view of the above facts and circumstances, this Court is of the considered opinion that the learned Commissioner after considering all the aspects has rightly awarded reasonable compensation as stated supra. However, this Court is inclined to interfere with the findings of the learned Commissioner only to the extent of awarding interest @ 12% per annum on the compensation amount from the date of accident.
21. Hence, the Civil Miscellaneous Appeal is partly allowed by modifying the impugned order passed by the Commissioner to the extent of granting interest rate at 12% per annum from the date of accident till the date of deposit. There shall be no order as to costs.
22. Miscellaneous petitions pending, if any, shall stand closed.
_____________________________ JUSTICE M.G.PRIYADARSINI Dt.05.07.2024 ysk