National Insurance Company Ltd vs S.M.Rasool 3 Ors
2022 Latest Caselaw 1696 AP

          HONOURABLE SMT. JUSTICE V.SUJATHA

     CIVIL MISCELLANEOUS APPEAL No.943 of 2009


JUDGMENT:

The present civil miscellaneous appeal is preferred by the

Insurance Company against the order dated 30.05.2008 in

W.C.No.117 of 2005 passed by the Commissioner for Workmen's

Compensation and the Assistant Commissioner of Labour,

Kadapa.

2. The case of the applicant/claimant is that:-

The applicant is the injured working as Driver earning

Rs.5,000/- per month and Rs.50/- per day batta of the lorry

bearing No.AP 04 U 7140 belongs to the 1st respondent therein

insured with respondent No.2 therein. While so, on 01.09.2004,

the said lorry, after loading with lemon at Pamuru village of

Prakasam District, was proceeding to Madras. When it reached

Thallam Padu cross road at N.H.5 near Nellore, the applicant

got down from the lorry to have a tea at about 3-00 a.m. on

02.09.2004 and after having tea, when the applicant was

crossing the road, one pulsar motorcycle bearing No.AP 26 L

144 belongs to respondent No.3 insured with opposite party-IV

dashed the applicant in a rash and negligent manner, thereby

caused injuries to him. A case in Crime No.73 of 2004 under

Section 337 of the Indian Penal Code, 1860 was registered

against the respondent No.3. Due to the injuries, the applicant

is unable to attend his normal duties and lost his employment.

Hence his claim.

3. The applicant filed W.C.No.117 of 2005 against the

respondents claiming compensation under Workmen's

Compensation Act, 1923 and the Rules (A.P.) 1953, whereby the

Commissioner for Workmen's Compensation and the Assistant

Commissioner of Labour, Kadapa awarded compensation of

Rs.1,41,883/- to the claimant and directed respondents 1 and 2

- the owner and insurer to deposit the same jointly within thirty

days from the date of receipt of the order.

4. Aggrieved by the same, the respondent No.2-Insurance

Company preferred the present appeal, solely on the ground

that the Commissioner erred in holding the loss of earning

capacity as 30% relying upon Ex.A9-disability certificate which

only speaks about physical disability sustained by the

respondent No.1 and not as loss of earning capacity; and that

the Court below ought not to have awarded the compensation in

the absence of the loss of earning capacity certificate issued by a

qualified medical practitioner.

5. Learned counsel for the appellant argued that though the

Doctor has issued a disability certificate of 30% disability, but

has failed to state regarding earning capacity of the claim and

the injuries sustained by the claimant are non-scheduled

injuries.

6. Dr. Narendradev, who was examined as AW-2, filed his

chief affidavit, wherein he specifically stated that because of the

injury sustained during the course of accident, it is difficult for

the claimant to attend his day-to-day works and as such, he

issued 30% disability certificate which itself establishes the fact

that the claimant has lost his earning capacity to the extent of

30%. In the facts and circumstances of the case and

considering the nature of the disability sustained by the

claimant as projected by the disability certificate, the finding

given by the Commissioner for Workmen's Compensation is just

and reasonable and the award under appeal does not suffer

from any illegality or irregularity warranting interference of this

Court and hence, the appeal is liable to be dismissed.

7. Accordingly, the Civil Miscellaneous Appeal is dismissed

confirming the order dated 30.05.2008 passed in W.C.No.117 of

2005 by the Commissioner for Workmen's Compensation and

the Assistant Commissioner of Labour, Kadapa. However, the

claimant is entitled for the remaining balance amount with

interest @ 7.5% per annum from the date of receipt of a copy of

this order. There shall be no order as to costs.

Miscellaneous petitions pending, if any, in this Civil

Miscellaneous Appeal shall stand closed.

_______________________ JUSTICE V.SUJATHA

Date : 08-04-2022 ARR

HONOURABLE SMT. JUSTICE V.SUJATHA

CIVIL MISCELLANEOUS APPEAL No.943 of 2009

Date : 08-04-2022

ARR