The New India Assurance Company ... vs Hasanapuram Venkata Ramana And ...
2021 Latest Caselaw 1436 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

          CIVIL MISCELLANEOUS APPEAL No.110 of 2006

JUDGMENT

This Civil Miscellaneous Appeal is directed against the order of the

Commissioner for Workmen's Compensation and Assistant Commissioner

of Labour, Kadapa in W.C.No.56 of 2004 dated 15.04.2005.

2. The 2nd respondent before the Commissioner is the appellant.

The 1st respondent was the applicant and the 2nd respondent was the 1st

respondent before the Commissioner.

3. The 1st respondent laid a claim before the Commissioner stating

that on 08.09.2003 morning he along with other labourers went to attend

loading loose soil viz., metal and gravel for road work, in tractor trailor AP

04U/3471/3472 and after loading this material when the tractor came

near RCM church at Ramapuram, its driver lost control and dashed against

a tamarind tree by the side of the road. Thus, it is stated that the trolly

turned turtle and the 1st respondent and other labourers received injuries

in that accident. The 1st respondent also claimed that he had treatment

initially at Rayachoty and then he was taken to Government Hospital,

Kadapa. On account of the fractures suffered to his right ribs and other

grievous injuries to his person, resulting in permanent disability, he

claimed a compensation of Rs.1,50,000/- with future interest at 12% p.a.

thereon. He also stated that he was 30 years old on the date of the

accident and was earning Rs.3,600/- per month.

4. The 1st respondent resisting this claim filed a counter admitting

that he is owner of the tractor trailor and that it was insured with the MVR,J CMA No.110 of 2006

appellant by the date of the accident. He admitted that the 1st respondent

was the labourer working on his tractor at the time of the accident and

that in the alleged incident the 1st respondent received injuries. He also

stated that he was paying him Rs.75/- to Rs.100/- per day.

5. The appellant filed a separate counter by resisting the claim of

the 1st respondent denying this accident, his involvement therein and

extent of the claim, age, wages and employment as well as extent of

disability claimed by the 1st respondent. It further contended that the

tractor trailor was overloaded at the time of the incident and on account

of this violation of the policy of insurance, the insurer stated that the 1st

respondent is not entitled for any claim.

6. On the material, the Commissioner settled the following issues

for enquiry:

"1.Whether the applicant is a workman as per the provisions of the Workmen's Compensation Act, 1923 and he met with accident arising out of and in the course of her employment resulting into disability and loss of earning capacity?

2. What was the age of the injured applicant at the time of the accident?

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

4. What is the loss of earning capacity suffered and permanent disability percentage faced by the injured applicant?

5. Who are liable to pay compensation?"

7. In the course of enquiry, the 1st respondent examined himself as

A.W.1 and marked Ex.A1 to Ex.A4 A.W.2 is orthopaedic surgeon, who

deposed with reference to disability suffered by the 1st respondent. On

behalf of the 1st respondent, he examined himself as R.W.1 and exhibited MVR,J CMA No.110 of 2006

Ex.B1-copy of insurance policy. On behalf of the appellant, R.W.2 was

examined, who was then senior Assistant in Divisional Office at Kadapa.

8. On the material, the Commissioner accepted the version of the

applicant in respect of the nature of the accident and relying on the

evidence of A.W.2, the orthopaedic surgeon, accepting the disability

suffered by the 1st respondent at 35%, having regard to his age and

factor applicable, compensation of Rs.1,06,460/- was awarded to him

payable by the respondent No.2 and the appellant jointly and severally.

9. It is against this order, the present appeal is preferred.

10. Substantial questions of law raised in this appeal are as

follows:-

"1. The tribunal erred in entertaining the claim petitions as the applicants has remedy only against the tortfeaser vehicle before the competent court constituted under motor vehicles Act, 1988?

2. The tribunal erred in believing the doctor evidence (P.W.2) who has not treated the injured?

3. The tribunal erred in considering permanent disability and loss of earning power to an exrtent of 35% as the injury does not fall under Schedule of W.C. Act to grant permanent disability?"

11. Considering the nature of the evidence available on record and

the material, all these questions are considered now and together.

Substantial questions 1 to 3:

12. There is evidence of the petitioner as A.W.1 explaining the

nature of the accident. He being the victim in this case, credence has to

be attached to it. It is corroborated by Ex.A1-copy of FIR and the

investigation by the concerned police basing on it confirmed nature of this

accident as per Ex.A3- copy of the charge-sheet.

MVR,J CMA No.110 of 2006

13. Added to it, the 2nd respondent admitted nature of this

accident and referring to its details. The material available on record in

this context is not effectively rebutted by the appellant in any manner.

Therefore, the accident in question is established to the effect that the

appellant along with others was travelling in tractor/trailor AP

04U/3471/3472 along with other labourers at RCM Church, Ramapuram,

this accident occurred when the trailor turned turtle. It is also proved that

a lorry which was coming from the direction of Kadapa dashed against

this tractor trailor from behind. This lorry AP 04 T0859 was responsible for

this accident as is deposed by the 1st respondent in the enquiry before the

commissioner.

14. A.W.2 deposed in respect of examining the 1st respondent on

25.08.2004 and observing the injuries suffered by him. According to his

evidence, the 1st respondent had moderate pain in pelvic region while

walking and standing and that he is unable to squat properly. Basing on

the parameters relating to these injuries, A.W.2 assessed the permanent

physical disability of the 1st respondent at 35% and that on account of this

disability, according to A.W.2, the 1st respondent cannot attend to regular

work as a labourer. Cross-examination of A.W.2 did not bring out any

material to discredit their version. Thus evidence of A.W.2, orthopaedic

surgeon is on record, which the commissioner had taken into

consideration.

15. The main objection of the appellant is that at the time of this

accident, the tractor trailor was overloaded and even though it had proper

insurance coverage, it did not meet the requirement, since more number MVR,J CMA No.110 of 2006

of labourers were found in this tractor than the numbers whereby the 2nd

respondent entered into an insurance contract with the appellant. When it

is the clear stand of the insurer that extra premium was paid covering the

risk of the labourers and when the policy of insurance obtained was for

commercial vehicle, the defence so raised by the appellant was rightly

rejected by the commissioner.

16. Basing on the age and wages payable under minimum wages,

accepting the same percentage of disability toward loss of earnings and

applying appropriate factor at 207.98, the commissioner awarded

compensation of Rs.1,06,400/- to the 1st respondent.

17. A consideration of the order under appeal makes out that it is

based on the material on record. The compensation so awarded is neither

excessive nor on low side. Appropriate measure was applied by the

commissioner accepting the version of the applicant for compensation and

against the respondents 1 and 2.

18. Therefore, answering all these substantial questions in favour

of the 1st respondent rejecting the contention of the appellant, the order

under appeal has to be confirmed.

19. In the result, this Civil Miscellaneous Appeal is dismissed

without costs, confirming the order of the Commissioner for Workmen's

Compensation and Assistant Commissioner of Labour, Kadapa in

W.C.No.56 of 2004, dated 15.04.2005. The 1st respondent (applicant) is

entitled to withdraw the amount in deposit before the Commissioner,

without furnishing security.

MVR,J CMA No.110 of 2006

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:08.03.2021 RR MVR,J CMA No.110 of 2006

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL MISCELLANEOUS APPEAL No.110 of 2006

Dt:08.03.2021

RR