Andhra Pradesh High Court - Amravati
The United India Insurance Company ... vs Aviti Kanaka Rao Anr 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: 1194 OF 2009
Between:
THE UNITED INDIA INSURANCE COMPANY ...APPELLANT(S)
LIMITED
AND
AVITI KANAKA RAO ANR AND OTHERS ...RESPONDENT(S)
Counsel for the Appellant(s):SRI. NARESH BYRAPANENI
Counsel for the Respondents: ELURU SESHA MAHESH BABU
The Court made the following:
2
HON'BLE SRI JUSTICE NYAPATHY VIJAY
C.M.A.No. 1194 of 2009
JUDGMENT:
The present appeal is filed under section 30 of the
Employees Compensation Act, questioning the order in
W.C.No.42 of 2007 passed by the Commissioner for
Workmen's compensation and Assistant Commissioner of
Labour, Nellore dated 12.12.2007. 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 of DCM Van
bearing No. AP 37 W6444 under opposite party No.1 on a
monthly salary of Rs.3,500/- + batta of Rs.1,000 per
month. While on duty, on 18.12.2006, the vehicle met
with an accident near Amar Kantha, outskirts of Chityala
village and in the said accident, the claimant received
multiple injuries. The claimant was immediately shifted to
Osmania General Hospital, Hyderabad and later shifted to
a private hospital for treatment. It is the plea of the
claimant that due to the accident, the claimant was unable
to drive the vehicle and s no compensation has been paid
either by the opposite party No.1 or the insurer i.e.
opposite party No.2, the claim for an amount of
Rs.3,00,000/- was filed.
3. As notices to opposite party No.1 could not be served
in the normal mode, a paper publication was issued in
'Prajasakthi' telugu daily news paper on 08.07.2007 and as
opposite party No.1 did not respond for enquiry, the
opposite party No.1 was set ex parte. The opposite party
No.2 i.e. the insurance company on their standardized
format filed their counter denying the accident,
employment, age, wages and every plea of the claim.
4. The Commissioner framed following issues for
consideration:
1. Whether the applicant is a workman, the accident
occurred while on duty, during the course of employment or
not?
2. What are the wage and Age particulars to determine the
quantum of compensation and quantum of compensation
payable and whether all the Opposite parties are liable to pay
compensation or not?
5. The claimant examined himself as A.W.1 and Dr.
M.V.G.Tilak was examined as A.W.2. The Exs.A.1 to A.5
were marked and the insurance company marked Ex.B.1
insurance policy. The Commissioner after taking into
consideration the evidence of A.W.2 awarded compensation
of Rs.3,61,057/- vide orders dated 12.12.2007. Hence, the
present appeal is field.
6. Having heard the learned counsel for the appellant,
the following questions of law would arise for
consideration:
(a) Whether the Commissioner was correct in taking the
loss earning capacity as 100% when the Doctor assessed
the disability at 30%?.
(b) Whether the renewal of driving licence on 27.01.2007
(Ex.A.5) of the claimant is indicative of absence of
disability?
(c) Whether the claimant had valid driving lience at the
time of accident on 18.12.2006?
7. Substantial Questions (b) & (c) Answer: As both the
issues are interlinked, this Court deems it fit to answer
both the issues simultaneously. The renewal of driving
licence on 27.01.2007 is only a paper procedure and would
not require the driver to again go through the physical test
and therefore, the renewal of driving licence has no
relevance for indicating the disability of the claimant. As
regards the validity of driving licence, though a general
plea was raised at para 12 of the counter affidavit filed by
the insurance company that the claimant was not having
any driving licence at the time of accident, but no question
was posed to the claimant on that aspect in the cross-
examination. Apart from that, the Ex.A.5 is the driving
licnece of the claimant which does not show that the
claimant was not having any valid licence on the date of
accident. Therefore, there are no merits in the substantial
questions (b) and (c). Hence, the plea of insurance
company on these questions of law are rejected.
8. Substantial question of law (a) Answer: The Ex.A.2 is
a certificate issued by the Chairman Medical Board, Eluru
in March, 2007 assessing the disability of the claimant at
the rate of 30%. The A.W.2 i.e. Dr. M.V.G.Tilak in his
chief-examination had stated that due to the disability, the
claimant cannot climb in and climb down from the cabin of
lorry and cannot operate the foot pedal as before due to his
disability. It was also stated that this disability can be
corrected by total knee replacement which would cost upto
1.5 to 2.00 lakhs. In the cross-examination, there were no
contradictions. The Commissioner relied on New India
Assurance Co. Limited v. K.Apparao1 in taking disability
at 100% even though the physical disability was assessed
at 50%.
9. 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 Assurance2 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
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."
1995 (1) ALT 499
2020 (1) SCC 796
10. 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 3. The
nature of injury in this disables the claimant from
discharging duties as driver. As regards the ability of the
claimant to do any other job, no question was posed to the
claimant on that aspect. Therefore, this Court does not
find any merit in this question of law and hence, 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
2023 Livelaw (SC) 543
