Mitta Bala Narasu vs Smt. Gogineni Uma Devi Anr
2021 Latest Caselaw 746 AP

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

         CIVIL MISCELLANEOUS APPEAL No.1464 of 2008

JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order in

W.C.No.4 of 2005 dated 28.09.2006 of the Commissioner for Workmen's

Compensation and Assistant Commissioner of Labour-II Circle, Guntur.

(For Short, 'the Commissioner').

2. The applicant before the Commissioner is the appellant and

whereas the respondents 1 and 2 therein are the respondents herein.

3. The appellant laid a claim for awarding a compensation of

Rs.4,00,000/- with interest at 15% p.a. thereon and for costs against the

respondents 1 and 2 on account of the employment injuries suffered in

an accident on 03.01.2004 at 11.00 a.m., when he as the driver of lorry

AP 16W 893 was attending to unloading of bags of rice at Fair Price Shop,

Mangalagiri. When he was drawing the ropes adjusting on the rice bags,

one of the rice bags from the body of the lorry fell on him resulting in

fracture to his right hip joint. Thereafter, the version of the appellant is

that he was taken to Government General Hospital at Guntur where he

was treated and had a surgery to his injury. He further claimed that he

had treatment in a private hospital from an orthopaedic surgeon at Guntur

after he was discharged from Government General Hospital, Guntur on

23.04.2004.

4. The appellant also claimed that he was 35 years old on the date

of the accident, otherwise hale and healthy and was being paid Rs.2500/-

as wages per month apart from batta of Rs.1500/- by the 1st respondent.

On account of the facture suffered by him, he is unable to attend to any MVR,J CMA No.1464 of 2008

other work nor as the driver, thus sustained permanent disability. On such

premise, the appellant claimed before the Commissioner that his claim for

compensation of Rs.4,00,000/- is just and appropriate.

5. The 1st respondent filed a counter admitting that the appellant

was the driver of the lorry in question and he was being paid such

emoluments as claimed by him. She also admitted the nature of injury

suffered by the appellant in the alleged incident, while stating that in view

of the contract of insurance between her and the 2nd respondent, the

latter has to make good the claim of the petitioner.

6. The 2nd respondent also opposed the claim of the petitioner

mainly on the ground that it is not liable to pay any compensation in

terms of Workmen's Compensation Act to the workman of the 1st

respondent. While denying the entire incident as alleged by the appellant

and that the injuries suffered by him were not on account of his status as

an employee of the 1st respondent nor that they are employment injuries,

it resisted his claim.

7. Basing on the material, the commissioner settled the following

issues for enquiry.

"1. Whether the appellant was a workman under Opposite Party as per the provisions of the Act and he received personal injuries in an accident arising out of and in the course of his employment making him physically disabled as workmen?

2. What is the age of the applicant at the time of the accident?

3. What were the wages paid to the applicant at the time of the accident?

4. What is the loss of earning capacity suffered by the applicant?

5. Amount of compensation payable? and who are liable to pay compensation?"

MVR,J CMA No.1464 of 2008

8. Before the Commissioner, the appellant examined himself as

A.W.1, A.W.3 being the cleaner of the lorry and A.W.4 being the brother

of the 1st respondent while relying on the evidence of A.W.2, the

Orthopaedic Surgeon. He further relied on Ex.A1 to Ex.A9 and Ex.X1 and

Ex.X2 in support of his contention. On behalf of both the respondents no

evidence was let in nor was any document marked, before the

commissioner.

9. Basing on the evidence let in and the material, the commissioner

returned a finding that the alleged incident did not occur in the manner

projected by the appellant and holding that there is no proof that the

incident occurred in the course of employment of the applicant for the 1st

respondent, dismissed the application by the impugned order.

10. Sri M.Siva Rama Krishna, learned counsel, for Sri N.Subba Rao,

learned counsel for the appellant, and Sri Naresh Byrapuneni, learned

counsel for the 2nd respondent, addressed arguments in this matter.

Substantial questions of law are framed in the memorandum of appeal as

a part of grounds questioning the impugned order.

11. Now, the following points arise for determination:

1. Whether the appellant received injuries in the course of his employment for the 1st respondent on 03.01.2004 at 11.00 a.m. at Mangalagiri?

2. Whether the respondents are liable to satisfy the claim of the appellant and if so to what extent?

3. To what relief?

POINT No.1:-

12. The appellant as A.W.1 deposed with reference to the alleged

incident, as set out by him in his application that it occurred on MVR,J CMA No.1464 of 2008

03.01.2004 at 11.00 a.m. while unloading rice bags from the lorry AP

16W/893 belonging to the 1st respondent, at a Fair Price shop. His

evidence further reflected that when he was attending on adjusting the

ropes on the load of these rice bags, one of the bags fell on him causing

injuries particularly fracture to right hip. This incident is supported by

A.W.3, who was the cleaner on this lorry and who was helping the

appellant during that time. Cross-examination of this witness in fact

brought out better material to support the version of A.W.1 viz., the

appellant to the effect that the appellant received injuries in the course of

employment when the accident occurred. He further stated in cross-

examination that the appellant was counting the bags of rice at the time

of unloading from the lorry.

13. First Information Report was registered with reference to this

incident on the statement of the appellant himself by police of Mangalagiri

P.S. Ex.A1 is its copy and the version of the appellant in FIR is that when

he was getting the rice bags unloaded from the lorry at the place of

incident, he suffered a slip and fell down from the lorry. His version

therein is also that a rice bag in the process fell on him causing fracture to

his right hip.

14. When the material so placed on record is considered, it is clear

that there is substantial corroboration to the version of the appellant as

A.W.1 in the course of enquiry as to the nature of this incident.

Particularly A.W.4, who represented the owner of the lorry, admitted that

the appellant suffered injuries in the course of employment for them,

when he was attending to their lorry.

MVR,J CMA No.1464 of 2008

15. In such circumstances it is rather improper that the

Commissioner gave undue importance, in respect of minor discrepancies

in describing this incident by the witnesses. There is reference to

occurrence of this incident at 9.00 a.m. on 03.01.2004 in the counter and

whereas A.W.3 cleaner deposed that it occurred at about 11.00 p.m.

Another instance taken into consideration in this context by the

commissioner is the version of the appellant in Ex.A1-First Information

Report and the time mentioned the medical record in this case viz., Ex.X1

and the discharge record in Ex.A7 O.P.sheet. They recorded that the

incident occurred on 04.01.2004. When there is substantial proof offered

making out that the appellant suffered injuries in the alleged accident, the

above instances considered by the Commissioner cannot go to the root of

the matter affecting the very claim of the appellant. It is rather a pedantic

approach of the Commissioner. Having regard to the beneficial nature of

this legislation favouring workmen viz., Workmen's Compensation Act, this

approach is totally unwarranted.

16. Therefore, basing on the material available, it has to be held

that the incident did occur in the manner stated by the appellant and that

he received injuries on 03.01.2004 while attending to his employment on

behalf of the 1st respondent. There is no dispute as to the relationship of

'master and servant' between the 1st respondent and the appellant in this

case.

17. Thus, this point is answered in favour of the appellant and

against the respondents.

MVR,J CMA No.1464 of 2008

POINT NO.2:-

18. The appellant had treatment in Government General Hospital,

Guntur for these injuries for sometime as is proved by Ex.A7 and Ex.X1 as

well as Ex.X2-case sheet and X-rays.

19. A.W.2 deposed in this context. He is a qualified Orthopaedic

Surgeon and therefore his testimony needs any amount of importance in

this context. It has become the sheet anchor of the claim of the appellant.

20. The evidence of A.W.2 Dr. S.S.V.Ramana is that the appellant

was admitted in Government General Hospital, Guntur in Orthopaedic

ward on 04.01.2004 with extra capsular fracture of neck of right femur

near right hip joint. He also deposed in respect of nature of treatment he

had, by application of right upper tibial pin traction and that he was

discharged from that hospital on 23.02.2004. While identifying Ex.X1 and

Ex.X2 he also deposed that the fracture suffered by the appellant

exhibited mal-union at the neck of right femur and in view of it in his

opinion there is restriction of movements of right hip shortening by 1 ½

inches. Therefore, according to A.W.2, the appellant cannot drive heavy

vehicles nor can stand for long duration. He assessed the percentage of

disability at 30%.

21. In cross-examination for the 2nd respondent, this witness

stated that the appellant did not suffer any other deformity for his hands

and legs except right hip and that he could sit as usual. However, he

denied the suggestion that the appellant could drive the vehicles since he

did not suffer any deformity to his legs and hands and also denied that

the percentage of disability is excessive.

MVR,J CMA No.1464 of 2008

22. In terms of Section 4(iii) of the Workmen's Compensation Act,

the disability so opined by A.W.2 remains physical disability and evidence

should have been let in through this expert as to the extent of functional

disability suffered by the appellant leading to loss of earning capacity.

Except his interested testimony as A.W.1, there is no other material to

prove that the fracture so suffered by him has completely prevented him

from attending to any other work, including the driving. Having regard to

the evidence of A.W.2 doctor it is possible to infer that the appellant is not

in a position to drive heavy vehicles and at the same time he can attend

to other work possibly like driving light motor vehicles. The nature of

disability suffered by him though is permanent and partial, in the absence

of any other material, it is rather difficult to consider the claim of the

appellant that he suffered 100% disability. On the material, the opinion of

A.W.2 in this context has to be considered whereby the loss of earning

capacity suffered by the appellant should also be treated as 30%.

23. Sri K.Siva Rama Krishna, learned counsel for the appellant,

strenuously contended that the medical evidence should necessarily

become basis to consider the extent of disability and having regard to the

position of the appellant now as such who is completely disabled,

appropriate compensation should be awarded.

24. Sri Naresh Byrapuneni while supporting the order under appeal

that there is no proof of the alleged incident, alternatively contended that

the disability should necessarily be based on the testimony of A.W.2 at

30% for computation purpose in this case, projecting the functional

means of the appellant towards loss of earning capacity. Learned counsel

for the 2nd respondent further contended that having regard to the age of MVR,J CMA No.1464 of 2008

the appellant on the date of the incident viz., 03.01.2004 in view of

G.O.Ms.No.30, wages have to be arrived at along with VDA and basing on

Section 4 of the Workmen's Compensation Act, the compensation has to

be calculated.

25. In the absence of better material, as rightly contended by Sri

Naresh Byrapuneni, the loss of earning capacity should be treated for the

reasons stated above at 30% and not at 100%. Basing on G.O.Ms.No.30

treating the wages of the appellant at Rs.2,587/- with Variable Dearness

Allowance at Rs.1,113/-, the emoluments of the appellant should be

arrived at and it is Rs.3700/- p.m.

26. On such basis, at 30% of loss of earning capacity, the factor to

apply in terms of Schedule-IV of Workmen's Compensation Act at '197.06'

basing on the age of the applicant, the compensation payable stands at

Rs.1,32,241/- (Rs.3,700/-x30%x60%x197.06). Therefore, it is the amount

of compensation which the appellant is entitled to, in given facts and

circumstances of the case and not Rs.4,00,000/- as claimed.

27. There is no dispute about the contractual relationship between

both the respondents under the policy of insurance. Therefore, when

primary liability lies on the 1st respondent, she stood indemnified by the

above contract of insurance, on account of which, the 2nd respondent has

to pay this compensation amount to the appellant.

28. Admittedly, the 1st respondent did not pay compensation from

the time when he fell due viz., on the date of the accident (03.01.2004).

In terms of Section 4-A (iii) of the Workmen's Compensation Act, the

appellant is also entitled for interest on the compensation so awarded. If it

is held at 7.5% p.a. from the date of the accident viz., 03.01.2004 till it is MVR,J CMA No.1464 of 2008

deposited to the credit of the appellant before the Commissioner, it shall

be in the interests of justice.

29. Thus, just and appropriate compensation is arrived at, which

both the respondents are jointly and severally liable to pay. Thus, this

point is answered in favour of the appellant and against the respondents.

30. In view of the findings on points 1 and 2, the appeal has to be

allowed in part awarding compensation as stated in point No.2 making

both the respondents jointly and severally liable.

31. In the result, the Civil Miscellaneous Appeal is allowed in-part,

setting aside the order of the Commissioner for Workmen's Compensation

Act and Assistant Commissioner of Labour- II Circle, Guntur in W.C.No.4

of 2005 dated 28.09.2006 and a compensation of Rs.1,31,241-96 ps.

is awarded in favour of the appellant with costs and with interest at 7.5%

p.a. thereon from the date of the accident viz., 03.01.2004 till such

payment is deposited before the Commissioner. On such deposit, the

Commissioner is directed to disburse the same in accordance with the

Workmen's Compensation Act and without insisting for any security.

Remaining claim of the appellant is dismissed and without costs.

As sequel thereto, all pending miscellaneous petitions, stand

closed. Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt: 10.02.2021 RR MVR,J CMA No.1464 of 2008

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL MISCELLANEOUS APPEAL No.1464 of 2008

Dt:10.02.2021

RR