Andhra Pradesh High Court - Amravati
United India Insurance Ocmpany Limited vs Shaik Riyaz Basha Nad Another on 1 March, 2024
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
FRIDAY ,THE FIRST DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL MISCELLANEOUS APPEAL NO: 650 OF 2012
Between:
UNITED INDIA INSURANCE OCMPANY ...APPELLANT(S)
LIMITED
AND
SHAIK RIYAZ BASHA NAD ANOTHER AND
OTHERS ...RESPONDENT(S)
Counsel for the Appellant(s):SRI. NARESH BYRAPANENI
Counsel for the Respondents: V R REDDY KOVVURI
The Court made the following:
2
HON'BLE SRI JUSTICE NYAPATHY VIJAY
C.M.A.No. 650 of 2012
JUDGMENT:
The present appeal is filed under section 30 of
Employees Compensation Act, questioning the order in
W.C.No.99 of 2008 passed by the Commissioner for
Workmen's compensation and Assistant Commissioner of
Labour, Kadapa dated 10.07.2009. The parties are
referred to as per their nomenclature before the
Commissioner.
2. The facts leading to this appeal are as under:
The claimant was working as driver in vehicle bearing
No.KA-07-4637 with opposite party No.1 and opposite
party No.2 was the insurer of the vehicle vide policy
No.050904/31/05/04530 which was valid from
02.02.2006 to 01.02.2007. on 25.06.2006, when the
claimant was on his way to Hak Ki Piki colony near
Galjagur village had hit another lorry bearing No.KA-05-
AE-1139 in the process of avoiding an accident. The
applicant got his legs fractured in the accident and the
applicant was shifted to area hospital Madanapalle and
thereafter joined SVRR general Hospital, Tirupati, where he
was operated. The wound certificate shows segmental
fracture of both bones of right leg and fracture shaft of left
femur and hence, compensation of Rs.3,00,000/- was
sought. It was also pleaded that the applicant is 23 years
old at the time of accident and was having valid driving
licence.
3. The opposite party No.1. i.e. owner of the vehicle
remained ex parte and the insurance company filed
counter denying the employment, disability and other
aspects.
4. The Commissioner framed following issues:
1. Whether the applicant was a Workman as per the
Provisions of the Workmen's Compensation 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 applicant at the time of accident?
3. What were the wages paid to the applicant at the time of
the accident ?
4. What is the loss of earning capacity suffered and
permanent disability percentage faced by the injured applicant ?
5. What is the Quantum of Compensation payable to the
applicant ?
6. Who are liable to pay the Compensation to the Applicant?
5. The claimant examined himself as A.W.1 and Doctor
J.Nagesh as A.W.2. The claimant marked Exs.A.1 to A.7
on his behalf and no documents were marked by opposite
party No.2. The Commissioner after taking into
consideration the evidence of A.W.2 and the undisputed
facts, granted compensation of Rs.5,27,880/- considering
the age and wages of the deceased. Hence, the appeal.
6. Having heard the counsel for the appellant, the
following questions of law would arise for consideration:
(i) Whether the order of the Commissioner is correct in
assessing the loss of earning capacity as 100% when the
medical evidence shows the disability as 50%?
(ii) Whether the order of the Commissioner is correct in
assessing excess loss of earning capacity for non-schedule
injuries than what is stated in Part-II of Schedule-I of WC Act
for amputations?
(iii) Whether the order of the Commissioner is correct in
adopting wages as per G.O.Ms.No.81, meant for private
Transport, instead of G.O.Ms.No.30, when the offending vehicle
was a Public Motor Transport Vehicle?
7. Questions of law 1 and 2: The evidence of the
Doctor-A.W.2 was that the claimant in the accident had
fractured his legs and there was mal union of right tibia
and fibula leading to shortening of leg 1 ½ inch and that
there is mal union of left femur. The Wound Certificate
issued by the area hospital shows segmental fracture of
both bones on right leg and fracture of shaft of left femur.
The Commissioner also noted that the claimant was finding
it difficult to walk, squat, sit in crossed leg position and in
climbing stairs and therefore assessed the loss at the rate
of 100%.
8. The Hon'ble Supreme Court in a similar case of
driver having physical disability of 37%, the functional
disability was assessed at 100% in Chanappa Nagappa
Muchalgoda Vs New India Assurance1 considering the
nature of job. The para 10 thereof is extracted below for
ready reference:
" 10.It is the admitted position that
the appellant can no longer pursue
his vocation as a driver of heavy
2020 (1) SCC 796
vehicles. The medical evidence on
record has corroborated to stand for
a long period of time, even fold his
legs. As a consequence, the
appellant got permanently
incapacitated to pursue his vocation
as driver."
9. Similar view was also taken by the Hon'ble Supreme
Court in the case of loading and unloading worker, whose
physical disability was assessed at 40% in Indra Bai v.
Oriental Insurance Company Ltd. and another 2. The
nature of injury in this case as per the medical opinion
disables the claimant from discharging duties as driver. As
regards the schedule I of the Act, the injury to claimant i.e
shortening of leg and malunion is not specified in part II
thereof. In such cases, the compensation payable is with
reference to loss of earning capacity as assessed by a
qualified doctor as per Section 4 (1) (c ) (ii) of the Act. The
AW.2 is a qualified doctor who assessed the loss of earning
capacity @ 100% and that opinion cannot be disregarded
in the absence of any counter opinion of a medical
2023 Livelaw (SC) 543
practitioner. Therefore, this Court does not find any merit
in these questions of law and hence, rejected.
10. Question of law No.3: The vehicle in which the
claimant was traveling is a private vehicle owned by
opposite party No.1. The vehicle with which the claimant's
vehicle collided is a private lorry. Both are vehicles being
private vehicles, the wages as per G.O.Ms.No.81 adopted
by the Commissioner therefore cannot be faulted.
Therefore, this Court does not find any merit in this
question of law and hence is rejected.
11. The appeal fails and is therefore dismissed. The
order of the Commissioner is confirmed. The interest as
per the statute shall be paid to the claimant. The claimant
is entitled to the costs throughout. As a sequel, the
miscellaneous petitions if any shall stand dismissed.
____________________
NYAPATHY VIJAY,J
Date: 01.03.2024
KLP
