United India Insurance Co Ltd vs Goda Koteswara Rao Anr
2021 Latest Caselaw 1559 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

          CIVIL MISCELLANEOUS APPEAL No.103 of 2010

JUDGMENT

This Civil Miscellaneous Appeal is directed against the order of

Commissioner for Workmen's Compensation and Assistant Commissioner

of Labour, Eluru in W.C.No.38 of 2007 dated 09.01.2008.

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

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

was the 1st respondent before the commissioner.

3. This claim has arisen on account of the injuries alleged to have

had been suffered by the 1st respondent as a driver of lorry AP 37T-3166

belonging to the 2nd respondent on 17.10.2006 at about 6.30 p.m. on

N.H.5 road near Reliance Petrol Bunk near Gundugolanu . This incident

occurred according to the 1st respondent, when a lorry AP 21W-2579 at

the place of accident, stopped all of a sudden when the 1st respondent

following it in the lorry AP 37T-3166 dashed it from behind. Due to

sudden impact, according to the 1st respondent, he received serious

injuries to his person predominantly affecting the left femur, right patella,

left parietal area, right frontal area, right maxillary area apart from

multiple injuries. Immediately he was taken to Government Headquarters

Hospital, Eluru for treatment and thereafter he had better treatment in a

private hospital where he continued as inpatient for long.

4. It was the version of the 1st respondent before the commissioner

that on account of these injuries, he became permanently disabled

suffering disability and lost his job. On the date of the accident, he was 32 MVR,J CMA No.103 of 2010

years old and was working for the 2nd respondent for about 3 ½ years

prior to the date of accident as a driver of the lorry who was paying him

Rs.3,500/- towards monthly wages apart from Rs.1000/- as batta. Thus

stating he suffered injuries in the course of during employment for the 1st

respondent and that the appellant was the insurer of this lorry on the date

of the accident, he made a claim against both of them to award

compensation of Rs.5,00,000/-.

5. The 2nd respondent did not choose to contest this matter before

the Commissioner.

6. The appellant resisted the claim of the 1st respondent denying

the nature of the accident, injuries alleged to have had been received by

the 1st respondent, his wages and particularly its liability. It contended

that the 1st respondent himself was responsible for this accident on

account of his negligence and since the vehicle did not have valid

registration certificate etc. and as the 1st respondent did not have valid

driving licence, it contended that it should be exonerated from liability.

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

for enquiry:

"1. Whether the accident occurred, during the course of employment while on duty?

2. Whether all the Opposite parties are liable to pay compenastion or not?

3. What are the wage and age to determine the quantum of compensation?"

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

A.W.1 and marked Ex.A1 to Ex.A6. He also examined A.W.2, the

orthopaedic surgeon who gave Ex.A5 disability certificate as Member of MVR,J CMA No.103 of 2010

Medical Board at Eluru. On behalf of the appellant, no oral evidence was

let in and Ex.B1-copy of insurance policy was exhibited.

9. Basing on the material, the Commissioner held that the nature

of accident stood established where the 1st respondent received injuries.

It was held that the 1st respondent suffered 50% disability leading to

inference that it was 100% loss of earning capacity. On such basis, having

regard to age of the 1st respondent and applying applicable factor

considering the wages of the 1st respondent in terms of Minimum Wages

Act, compensation was awarded, in all at Rs.4,07,700/- making the 2nd

respondent and the appellant jointly and severally liable.

10. It is against this order of the Commissioner, the insurer has

preferred this appeal.

11. Sri Srinivasarao Katakamsetty, learned counsel for the

appellant, and Sri Kambhampati Ramesh Babu, learned counsel for the 1st

respondent, addressed arguments.

12. Now, the point for determination is-"Whether the loss of

earning capacity arrived at 100% by the Commissioner is just and proper

and if compensation awarded is justified?

POINT:-

13. On behalf of the appellant, the nature of the accident has not

been disputed in this appeal. Even otherwise, there is evidence A.W.1,

who is injured in that accident, contents of Ex.A1 Copy of FIR, Ex.A4

copy of charge sheet and Ex.A3 copy of MVI report that establish this

accident.

MVR,J CMA No.103 of 2010

14. Added to it, the 2nd respondent did not choose to contest the

matter before the Commissioner and also in this appeal. He being the

employer of the 1st respondent, if the 1st respondent did not suffer injuries

as claimed by him, certainly he would have chosen to contest the matter.

15. As seen from Ex.B1 copy of insurance policy, on the date of the

accident, it was in force.

16. The Commissioner mainly relied on the testimony of A.W.2 Dr.

M.V.G.Tilak, Civil Assistant Surgeon, Headquarters hospital, Eluru. He was

member of Medical Board at Eluru during March, 2007. His evidence

before the Commissioner was that on 17.03.2007 the 1st respondent was

examined by the Medical Board observing fracture of shaft of left femur,

which was subjected to surgery by internal fixation. His opinion in this

context was that there was shortening of left lower limb by 1". His

evidence before the Commissioner was also that the 1st respondent

suffered commuted fracture of right patella, which was also subjected to

surgery by internal fixation and that the 1st respondent suffered post

surgical stiffness of right knee joint on account of it. He further opined

that the 1st respondent was suffering on account of limping and that the

Medical Board assessed the disability of the 1st respondent at 50% of right

lower limb on account of the two deformities stated above. He also stated

that the 1st respondent could not perform duties as driver, which he was

otherwise performing on the date of the accident. Cross-examination of

this witness on behalf of the appellant insurer did not bring out any

material to discredit his testimony.

17. However, the version of A.W.2 is not specific about loss of

earning capacity and which is required in terms of Section 4(1)(c)(ii) of MVR,J CMA No.103 of 2010

the Workmen's Compensation Act. Nonetheless, when his evidence is

clear that the 1st respondent cannot any more be a driver of a heavy

vehicle like lorry, which fact apparently impressed the Commissioner to

arrive at 100% loss of earning capacity, it cannot as such be brushed

aside. Unless there is cogent material, the medical opinion so available on

record cannot be overlooked.

18. The contention of the appellant that the disability for this

purpose should be assessed only at 50% basing on the testimony of

A.W.2, in the circumstances, is not proper. As rightly contended for the 1st

respondent, the commissioner had taken into consideration all the

parameters applicable in this case. The appellant did not choose to let in

any evidence contra to the material placed by the 1st respondent. In the

absence of any specific material to support its contention about loss of

earning capacity of the 1st respondent, the findings so recorded by the

Commissioner, cannot be disturbed.

19. In arriving at the compensation, the Commissioner took into

consideration the right indicators applying appropriate factor, to the age

of the deceased. Minimum wages as applicable on the date of the

accident was considered for a driver of a truck. Therefore, the basis on

which the Commissioner assessed and evaluated the compensation is

appropriate.

20. Since policy of insurance under Ex.B1 was in force by the date

of the accident, that covered the risk of the nature and kind, seen in this

case, the 2nd respondent stood indemnified for the compensation so

awarded. Therefore, the order under appeal has to be confirmed.

MVR,J CMA No.103 of 2010

21. In the result, the Civil Miscellaneous Appeal is dismissed

confirming the order of the Commissioner for Workmen's Compensation

Act and Assistant Commissioner of Labour, Eluru in W.C.No.38 of 2007

dated 09.01.2008. No costs. The balance amount, if any, in deposit

payable to the 1st respondent (applicant) shall be released by the

Commissioner without insisting for any security.

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

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:17.03.2021 RR MVR,J CMA No.103 of 2010

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL MISCELLANEOUS APPEAL No.103 of 2010

Dt:17.03.2021

RR