Andhra Pradesh High Court - Amravati
National Insurance Company ... vs Shaik Baji And Another on 30 June, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
C.M.A.No.1180 of 2009
JUDGMENT:-
The present Civil Miscellaneous Appeal is filed by the
National Insurance Company Limited, who is the appellant-
Opposite party no.2 in W.C.Case No.48 of 2005, aggrieved by the
Order dated 07.12.2007, passed by the Commissioner for
Workmen's Compensation, Eluru and Assistant Commissioner of
Labour, Eluru.
2. Heard both sides.
3. The respondent no.1 herein-applicant filed the claim
application before the Commissioner for Workmen's
Compensation, Eluru and Assistant Commissioner of Labour,
Eluru. While, he was working as a Driver of tanker lorry bearing
no.AP 13 B 9939 under the employment of the opposite party
no.1, he used to receive an amount of Rs.4,000/- as wages and
Rs.50/- as batta per day.
4. The accident occurred due to the blast of the left side of the
rear wheel of the tanker lorry, the said lorry turned turtle, due to
which the applicant sustained injuries all over the body and
suffered permanent disability. On the complaint lodged, the
Station House Officer, Denduluru Police Station registered the
complaint in Crime No.34 of 2005 under Sections. 337, 338, 279
of I.P.C.
5. The opposite party no.2, who is the insurer filed counter
affidavit and denied the averments made in the claim petition in
toto. It is stated that the injured is not a workman employed
under the opposite party no.1.
6. After considering the evidence adduced by both the parties
and the law, the Commissioner has awarded an amount of
Rs.3,86,496/- (Rupees three lakhs eighty six thousand four ninty
six only) towards compensation.
7. Aggrieved by the said Order dated 07.12.2007, the present
Civil Miscellaneous Appeal is filed by the National Insurance
Company Limited on the ground that the Doctor has issued the
disability certificate as 30%, whereas, the Commissioner has
taken the disability as 100%, which Order is contrary to the
Doctor certificate. Hence, the appellant prayed to set aside the
Order, dated 07.12.2007 and restrict the disability to 30% and
prayed to modify the same.
7. For the said proposition, learned counsel for the respondent
relied 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 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".
8. The Doctor AW4 in his evidence, categorically held that the
disability is permanent. He could not work as a Driver as prior to
the accident. As per the Radiologist report, the claimant suffered
permanent disability on his left shoulder and is unable to move
from bed and he could not clear his nature calls without
anybody's help. As per the said report, his left hand collar bone
fractured resulting in stitches to the right mandible. Hence, the
Doctor assessed the disability as 30%. Basing on the said report,
the Commissioner for Workmen's Compensation has awarded
2006 ACJ 2089
compensation taking the disability as 100% as he unable to earn
as a Driver as prior to the accident. The disability has to be taken
on the impact of such permanent disability on his earning
capacity and not the certificate issued by the Doctor. Hence, by
the observation of the present Order dated 07.12.2007, the
Commissioner has categorically found that the injured is not able
to perform his duties in future as he performed prior to the
accident.
9. On the conspectus of the aforesaid Judgment, the
contention raised by the learned counsel for the appellant cannot
be considered as a substantial question of law.
10. Hence, I found no reasons to interfere with the Order dated
07.12.2007 passed by the Commissioner for Workmen's
Compensation, Eluru and Assistant Commissioner of Labour,
Eluru.
11. Accordingly, the Civil Miscellaneous Appeal is dismissed. No
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.1180 of 2009
Date: 30-06-2022
EPS
