The National Insurancce Company ... vs Sri C.Ramudu 4 Ors
2022 Latest Caselaw 7912 AP

          THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS

        CIVIL MISCELLANEOUS APPEAL No.485 of 2010


JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order

of the Commissioner for Workmen's Compensation and Deputy

Commissioner of Labour, Anantapur (hereinafter called as the

'Commissioner') in W.C.Case No.15 of 2003 dated 30.11.2009.

2. The insurer of the Tractor-Trailor bearing No.AP 02 U 2975

and 2976 belonging to the 2nd respondent herein is the appellant.

The 1st respondent herein is the injured/applicant.

3. According to the respondent No.1/applicant, in the

application before the Commissioner for Workmen's Compensation

at Anantapur, he was a workman employed by a contractor. On

05.04.2001, the applicant went to coolie work along with other

coolies in the above tractor-trailor for loading and unloading of

20 mm metal. At about 10.00 a.m., near Murali Stone Crush Unit,

due to the rash and negligent driving of driver, the tractor-trailor

was turned turtle to its right side. Due to the said accident, the

applicant was sustained grievous injuries i.e., (1).An abrasion of

½" X ½" over nose bleeding present, (2).An abrasion of 1" x 1"

over right cheek, bleeding present; and (3).Pain and tenderness

over left thigh and public region and pelvis with both hips fracture

of right interior public ramus present. The Doctor opined that the

injuries 1 and 2 are simple and injury No.3 is grievous in nature.

He spent Rs.20,000/- for treatment and he became permanently

disabled. On his complaint, a case was also registered against the

driver of the said vehicle. Contending that the applicant sustained

the injuries during and in the course of employment, compensation

of Rs.1,00,000/- was claimed by him against the respondent No.1

and the appellant herein.

4. Pending the proceedings before the Commissioner, since

respondent No.1 herein died, his legal representatives were

brought on record as respondent Nos.3 to 5 therein.

5. Counter was filed by the respondent Nos.3 to 5 denying the

averments made in the application stating that the accident was

occurred only due to rash and negligent driving of the driver; the

petitioner was employed by the contractor and the said contractor

was not added as a party to this case and hence, they are not

liable to pay the compensation; and that the claim made by the

petitioner is excessive, arbitrary. On the date of accident, the

vehicle was insured with the 2nd respondent/appellant and the

insurance policy was in force. Hence, the 2nd respondent being the

insurer of the tractor-trailor, is liable to pay compensation and

prayed to dismiss the application.

6. The appellant herein filed its counter that most of the

averments mentioned in the application were denied and mainly

contending that the application is silent about the vehicle involved

in the accident, owner of the vehicle and its insurer and without

vehicular particulars of the alleged vehicle, it cannot locate the

origin of the policy and has to file a detailed counter and

requested to reject the application.

7. The applicant filed a memo before the authority stating that

by mistake he had not mentioned crime vehicle and permit him to

amend the petition and prayed to add the vehicle number as AP 02

U 2975 and 2976. The said application was allowed.

8. In pursuance of allowing of the said amendment petition,

the appellant herein filed an additional counter stating that the

vehicle is not at all insured and there is no contractual liability

between respondent No.1 and the appellant to indemnify the

liability. Hence, the respondent company is not liable to pay any

compensation. The driver of the vehicle did not possess any valid

driving license.

9. The Commissioner settled the following issues for enquiry

basing on the material:

1.Whether the applicant was a workman as per the provisions of the W.C.Act, 1923 and he met with the accident arising out of and in the course of his employment resulting into disability and loss of earning capacity ?

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

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

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

5.What is the amount of compensation payable to the injured applicant ?

6.Who are liable to pay compensation ?

10. In the course of enquiry, the 1st applicant was examined

himself as A.W.1 and one Dr.A.Athamaram, Assistant Professor,

Government Hospital, Anantapur was examined as A.W.2. In

support of the claim seven (7) documents marked as Exs.A.1 to

A.7. On behalf of the appellant/insurer, one K.N.Chandra Mouli,

Senior Assistant, examined as R.W.1 and memo filed the insurance

copy to produce driving license, R.C., F.C, permit and policy of

insurance issued on applicants is marked as Ex.B.1.

11. On the material, the Commissioner held that the applicant

was injured workman, who employed in tractor-trailor for loading

and unloading by respondent No.1 as paid coolie and sustained

grievous injuries and disability at 35% during the course of and out

of his employment on 05.04.2001 and as the policy was in force,

at the time of accident, directed the appellant and respondent

Nos.2 to 5 herein to deposit the compensation amount of

Rs.2,41,673/- by way of demand draft drawn on any scheduled

bank in favour of Joint Commissioner for Workmen's Compensation

and Joint Commissioner of Labour, Kurnool drawn on State Bank of

India, Kurnool, within thirty (30) days from the date of receipt of

the said order and their liability is joint and several and further

ordered that if the opposite parties fails to deposit the

compensation amount within the stipulated time, they shall be

liable to pay penalty under Section 4(A)3 of the Act.

12. It is against the said order, this Civil Miscellaneous Appeal is

preferred by the insurer.

13. Heard Smt.A.Jayanthi, learned counsel for the appellant and

Sri M.Karibasaiah., learned counsel for the respondent No.1.

14. Now, the following points arise for determination:

1. Whether the accident occurred, during and in the course of employment of 1st respondent, while on duty ?

2. Whether the loss of earning capacity arrived at 100% by the Commissioner is just and proper and if compensation awarded is justified ?

3. To what relief ?

15. POINT No.1:

Nature of the accident states that on 05.04.2021, the

applicant went to coolie work along with other coolies in the

above tractor-trailor for loading and unloading of 20 mm metal. At

about 10.00 a.m., near Murali Stone Crush Unit, due to the rash

and negligent driving of driver, the tractor-trailor was turned

turtle to its right side. Due to the said accident, the applicant was

sustained grievous injuries.

16. In-order to prove the said facts, the applicant himself

examined as A.W.1, who stated that on 05.04.2001 at about 10.00

A.M., near Murali Stone Crusher Unit at Peravali Village, he

sustained injuries in the accident, which was occurred as tractor-

trailer bearing No.AP 02 -U 2975 and 2976 suddenly reversed and

turtled, due to which, he sustained grievous injuries, and he went

to tractor as Hamali along with others.

17. Ex.A.1 F.I.R. copy and Ex.A.3 charge sheet copy show that

the injured was sustained bleeding injuries on 05.04.2001 in the

accident, while he was attending the duty as Hamali on a tractor,

which was driven by the 4th respondent before the Commissioner.

Ex.A.2 Wound Certificate shows that the injured sustained two

simple injuries and one grievous injury.

18. The appellant did not specifically deny the accident and

nature of the injuries sustained by the applicant, during and in the

course of employment, either in the counter or evidence of R.W.1.

No material is placed by the appellant to disbelieve the evidence

of applicant (A.W.1) and documents submitted by him about the

nature of the accident and injuries sustained by him during and in

the course of his employment. Therefore, there are no grounds to

interfere with the findings of the Commissioner in this regard, as

the evidence and material categorically show that the applicant

met with an accident and sustained injuries during and in the

course of his employment. Thus, this appoint is answered in favour

of the respondent No.1 herein and against the appellant.

19. POINT No:2:

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

Dr.A.Athamaram, who is working as Assistant Professor in Ortho

and as member of Medical Board and he examined the applicant

and issued Ex.A.5 Physically Handicapped Certificate on

02.09.2004 and certified that due to fracture of right hemo pelvis,

the applicant sustained disability and due to said disability, he

cannot walk for long time, or sit for long time.

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

of earning capacity as required in terms of Section 4(1)(c)(ii) of

the Workmen's Compensation Act, which is as follows:

(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I.-- Where more injuries than one are caused by the same accident, the amount of compensation payable under

this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Explanation II.-- In assessing the loss of earning capacity for the purposes of sub- clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;.

21. As per Ex.A.2 wound certificate the applicant sustained the

two simple injuries and one grievous injury i.e., (1).An abrasion of

½" X ½" over nose bleeding present, (2).An abrasion of 1" x 1"

over right cheek, bleeding present; and (3).Pain and tenderness

over left thigh and public region and pelvis with both hips fracture

of right interior public ramus present.

22. The contention of the appellant is that the disability for this

purpose should be assessed only at 35% basing on the testimony of

A.W.2 and Ex.A.5 Disability Certificate, in the circumstances, the

assessment made by the commissioner is not proper. As against the

same, the claimant/applicant contends that, the Commissioner

had taken into consideration all the parameters applicable in this

case as per Section 19 of the Act and contended that the appellant

did not choose to let in any evidence contra to this 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.

23. In this context, it is relevant to take note of the case of

Mohan Soni v. Ram Avtar Tomar1, wherein at paragraph No.8, the

Hon'ble Supreme Court held as follows:

8. The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K.Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K.

Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289, in which a carpenter who suffered an

1 2012(2) SCC 267

amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.

24. Further in the case of United India Insurance Company

Limited v. Boregowda2, wherein at paragraph No.6, the Hon'ble

Supreme Court held as follows:

6.The definition of 'total disablement' reveals that it is such disablement, whether of a temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries amounts to one hundred per cent or more. The proviso deals with the injuries as specified in Part I of Schedule I in the case of which injuries are to be deemed to result in permanent total disablement by legal fiction. In other cases Section 2(1) of the Workmen's Compensation Act provides that whether the injury or injuries incapacitated a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. The Commissioner has got jurisdiction to adjudge and determine. The Commissioner no doubt has adjudicated it keeping in view the effect of injuries and opining that the injured was not capable of performing the driver's job and the injuries have rendered the injured totally incapacitated from performing the job of driver. No evidence led by the owner or by the insurance company to prove or show that the claimant was at the time of accident capable of performing any other job or was doing any other business. Looking to the fact that the claimant was incapacitated because of injuries on the left hip joints resulting in shortening the leg by half an inch and injury of the left hand wrist incapacitated the respondent-

petitioner from performing the job of driver. It can well be said that

2 1998 SCC online Kar 748

the driver was subject to the total disablement for the work which he was capable of performing at the time of the accident. It cannot be said that the skilled men, who have been performing the skilled special trained job of driver on being disabled to do that on account of injuries caused may opt to do the jobs of sweeper or cobbler, because what has to be looked into is what was the job at the time of accident resulting in disablement he was capable of doing and to do which he was employed. Applying the above test in my view the present has been a case of total permanent disablement. I find support from the observations made by this court in the case of K.P. Hanumantha Gowda v. Devaraju 1996 ACJ 102 (Karnataka). It will be appropriate to quote the following observation of the said decision:

The total disablement should be assessed vis-a-vis the work, the worker was carrying. If the worker is disabled to perform all the work he was engaged to perform, it amounts to total disablement. It is to be noted that the compensation is claimed under the Workmen's Compensation Act, 1923, by the worker as defined under the Act. That worker, due to the injury sustained by him, loses the capacity to do that work, which capacity earned him the status of a worker under the employer. If so, the disablement that he suffers should be understood vis-avis the work he carried on or for which he was employed. If by the accident, he becomes totally disabled to carry on that work, as far as he is concerned, it is a total disablement. A driver employed is employed to drive. He is not to work as a sweeper or a manual labourer. If due to the accident, a driver becomes incapable of performing his duties as a driver, there is total disablement as far as he is concerned. He will cease to be a driver under the employer and consequently a worker under that employer. The fact that he can do some other work elsewhere is no ground to state that he is not totally disabled. His disablement should be assessed with reference to the work he was employed to perform at the time of accident. His capacity to do some other type of work, did not earn him the status of worker under the particular employer. If by the accident the worker loses his employment under his employer, thereby ceases to be a worker as defined under the Act, under that particular employer which employment brought him under the purview of the Act and the relationship of employer- worker is brought to an end, then that amounts to 'total disablement' as contemplated under the Act. To

repeat, his capacity to do some other work either under the same employer or another employer or independently is of no consequence. It has to be remembered that a skilled worker, if by an accident is disabled to do the particular skilled work, may not be in a position to be employed as an unskilled worker in the same industry for a variety of reasons. He may be over-age or there may be opposition from other unskilled workers since the new employee may mar their employment prospects. Hence, with the employee being disabled to carry on the work for which he was originally employed, it will be a virtual exit from the establishment. It may be contradiction in terms, if we are still to hold that there is no 'total disablement' for the employee.

25. Even in the case of Oriental Insurance Company Limited,

Virudunagar v. Mohan3, in this division bench judgment, at

paragraph No.10, the High Court of Madras, held as follows:

10. ..........Though the Doctor has assessed the disability to the extent of 48%, as rightly observed by the Authority, it is not for the Doctor to assess the earning capacity. In this regard it is useful to refer the decision rendered by us in C.M.A. Nos. 1237 to 1240 of 1994 and 1598 of 1998 on 25th April, 2003, wherein we have held that the Doctor - Expert can assess the disability, it is for the Authority concerned to assess the lost of earning capacity on the basis of the materials, namely, medical certificate, disability certificate, evidence of Doctor, evidence of the injured applicant, avocation and the nature of work to be done in future. In such a circumstance, we are unable to accept the only argument of the learned Counsel for the appellant, namely that the Authority has committed an error in assessing the loss of earning capacity. ..............

26. This court closely perused the legal proposition. In view of

the above legal proposition and Section 19 of the Workmen's

3 2003 SCC Online Madras 328

Compensation Act, the commissioner is competent to determine

the nature or extent of disability, which is caused loss of earning

capacity.

27. Since it is the core principle of compensation to be awarded

(irrespective of the enactment covering the same), is of a just

compensation, neither be lesser nor even be as a bonanza, once

there is nothing shows the formula provided by the definition of

the Act is violated to grant compensation above what is claimed,

perse no way illegal nor even unjust from the core principle.

28. In the case on hand, the applicant worked as Hamali and

due to the disability caused in the accident i.e., fracture of hemi

pelvis, he cannot walk for a long time, sit for long time and unable

to attend the said work, besides his regular works. The

commissioner physically observed the applicant and noticed the

disability of the applicant and also noticed that he cannot walk

and sit for a long time, unable to attending attend his Hamali

work, which he did earlier. Thereby, the quantum must be liberal,

not niggardly since law value life and limb free country in generous

scales.

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

consideration the right indicators applying appropriate factor, to

the age of the injured. Minimum wages as applicable on the date

of the accident was considered for loading and un-loading coolies.

Therefore, the basis on which the Commissioner assessed and

evaluated the compensation is appropriate.

30. Since policy of insurance under Ex.B.1 was in force by the

date of the accident, that covered the risk of the nature and kind,

seen in this case, the appellant stood indemnified for the

compensation so awarded. Thus, this point is answered in favour of

the 1st respondent/applicant and against the appellant.

31. POINT No.3:

In view of the findings on point Nos.1 and 2, this civil

miscellaneous appeal is liable to be dismissed.

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

confirming the order of the Commissioner for Workmen's

Compensation and Deputy Commissioner of Labour, Anantapur in

W.C.No.15 of 2003 dated 30.11.2009. The balance amount, if any,

in deposit payable to the 1st respondent (applicant) shall be

released by the Commissioner without insisting for any security.

There shall be no order as to costs.

33. Interim orders granted earlier if any, stand vacated.

34. Miscellaneous petitions pending if any, stand closed.

___________________ VUTUKURU SRINIVAS, J Date:18.10.2022 Krs/Pab

THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS

CIVIL MISCELLANEOUS APPEAL No.485 of 2010

DATE: 18.10.2022

Krs/Pab