Andhra Pradesh High Court - Amravati
United Inddia Insurance Co Ltd vs Shaik Ibrahim Anr on 30 June, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
C.M.A.No.1564 of 2008
JUDGMENT:-
Heard.
The parties are arrayed in the present Appeal as per the
ranking in the W.C. Case.
2. The claim petitioner filed the claim petition before the
Commissioner for Workmen's Compensation and Assistant
Commissioner of Labour, Kadapa, on the ground that, while he
was driving the Diesel Oil Tanker bearing no.AP04-T-5367, he has
met with an accident albeit taking care after driving the vehicle
cautiously. In the said accident, he sustained injuries. The
injuries are having impact on his earning capacity. As such, he
filed the present claim petition seeking compensation to sustain
his future.
3. After considering the evidence, the Insurance Company who
is arrayed as Opposite party No.II has filed its Counter affidavit
and denied the averments made in the claim petition in toto and
interalia stated that, all burn injuries are not fracture injuries and
they are healed and there is no disability to hamper his profession
for driving the vehicle. It is further averred that the compensation
claimed by the claimant is highly excessive and baseless and
prayed to dismiss the claim petition.
4. After perusing the evidence both documentary and oral, the
Commissioner has awarded an amount of Rs.4,28,376/- towards
compensation.
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5. In the present Appeal filed by the Insurance Company, it is
agitated that the Commissioner for Workmen's Compensation has
erroneously granted exhorbitant compensation. When the injured
sustained 50% of disability as per the Doctor Certificate, the
Commissioner has taken 100% disability and granted higher
compensation. The Commissioner erred in granting 12% interest
which is contrary to Section 4(A)(3a) of the Workmen's
Compensation Act, 1923.
6. The first issue is that, the Commissioner has taken the
disability as 100% when the Doctor has issued the Certificate,
stating the disability of the claimant as 50%. The question
concerned is that, the injured is able to discharge his duties as
driver or not; in future, is the question to take the disability into
consideration and not the certificate issued by the Doctor.
7. When an applicant-claimant suffer a permanent disability as
a result of the injuries the assessment of compensation under the
head of loss of future earnings would depend upon the effect and
impact of such permanent disability or his earning capacity.
8. For the said proposition, this Court relies on the Judgment
of this Court in C.M.A.No.800 of 2007, dated 04.01.2021,
wherein, the Doctor issued the Certificate of disability at 60% and
the Commissioner for Workmen's Compensation had arrived at
100% disability and granted compensation. The learned Judge
after considering the plethora of decisions, relied on the Judgment
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in "Gona Siva Sankar Vs. K. Vara Prasad and Others1," in
somewhat similar circumstances in para no.6 observed as under:-
"6. In the cases on hand, the medical practitioners have certified
the percentages of disability to the respective appellants. However,
they did not certify the extent of loss of earning capacity.
Therefore, the Commissioner has taken upon himself the task of
determining the same. In the process, he was mostly guided by his
observation of the physical condition of the appellants as well as
the observation made by the medical practitioners, as to the
nature of difficulty for the appellants to discharge the functions. In
is true that the percentage of loss of earning capacity fixed by the
Commissioner was more than the percentage of disability. Neither
law nor logic requires that the percentage of both the factors have
to be the same. Depending on the nature of employment, an injury
to a limb or organ may result in almost total loss of earning
capacity, whereas in other cases, it may not have any impact at
all. It is too difficult to decide these issues with mathematical
precision. Unless it is urged before this Court that the exercise
undertaken by the Commissioner was perverse or totally arbitrary,
this Court cannot interfere with the same. Neither the appellants
nor the respondents are able to convince this Court that the
fixation of the loss of earning capacity by the Commissioner
suffers from such irregularity".
9. In the said Judgment, the Commissioner had awarded
compensation basing on the impact of said permanent disability
on his earning capacity. Hence, I am not inclined to interfere with
the Order dated 24.03.2008 passed by the Commissioner for
2006 ACJ 2089
Workmen's Compensation with regard to the assessment of
compensation taking the disability as 100%.
10. Learned counsel for the appellant has raised the contention
that the Commissioner has erred in granting the interest and the
Insurance Company is not liable to pay the interest.
11. He relied on the Judgment of the Hon'ble Apex Court in,
"P.J. Narayana Vs. Union of India and Others2", wherein, it is held
that, there is no statutory liability on the insurance company. The
statutory liability under the Workmen's Compensation Act is on
the employer. An insurance is a matter of contract between the
insurance company and the insured. It is always open to the
insurance company to refuse to insured. Similarly, they are
entitled to provide by contract that they will not take on liability
for interest. In the absence of any statute to that effect, insurance
company cannot be forced by Courts to take on liabilities which
they do not want to take on and held that the insurance company
is not liable to pay any interest.
12. Moreover, there is no such representation from the
respondent.
13. On the conspectus of the above stated Judgment of the
Hon'ble Apex Court, this Court deems it appropriate to modify the
Order dated 24.03.2008 passed by the Commissioner for
Workmen's Compensation by setting aside the granting of interest
i.e., 12% per annum.
2004 ACJ 452
14. Accordingly, the Civil Miscellaneous Appeal is partly
allowed, by setting aside the interest granted i.e., 12% per annum
by the Order dated 24.03.2008 passed by the Commissioner for
Workmen's Compensation and Assistant Commissioner of Labour,
Kadapa and the rest of the Appeal holds good. There shall be no
order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 30-06-2022
EPS
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
C.M.A.No.1564 of 2008
Date: 30-06-2022
EPS
