Madras High Court
M/S.Bajaj Allianz General ... vs K.Alagesan on 9 December, 2021
CMA No.719 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.M.A.No.719 of 2020
and
C.M.P.No.4391 of 2020
M/s.Bajaj Allianz General Insurance Company Ltd.,
'Prince Towers', IV Floor, No.25/26, College Road,
Nungambakkam, Chennai – 600 006.
... Appellant
Vs
1.K.Alagesan
2.G.Kesavan ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 30 of the
Employees Compensation Act, 1923, praying to set aside the final award
dated 30th August, 2017, passed in E.C.No.334 of 2006, by the learned
Commissioner for Employees Compensation, (Deputy Commissioner of
Labour – I), at Chennai and to dismiss the claim petition.
1/12
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CMA No.719 of 2020
For Appellant : Mr.J.Michael Visuvasam
For Respondents : Mrs.M.Salim Fathima for R1
R2 – No appearance
*********
JUDGMENT
The Insurance Company challenges the award of a sum of
Rs.2,16,821/- towards loss of earning capacity to the 1st respondent who laid
a claim before the Commissioner for Employees Compensation in
W.C.No.334 of 2006.
2. According to the claimant, while he was travelling as a cleaner,
in the mini load auto bearing Reg.No.TN-04-S-3070, owned and driven by
the 2nd respondent, due to the rash and negligent driving of the 2 nd
respondent, the vehicle capsized and the 1st respondent suffered very
grievous injuries. He was taken to Rajiv Gandhi Government General
Hospital, Chennai, where he was treated as inpatient between 18.03.2006
and 11.04.2006. Contending that the injuries had resulted in loss of earning
capacity, the 1st respondent sought for compensation.
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CMA No.719 of 2020
3. The claim was resisted by the Insurance Company contending
that the claimant was not an employee of the 2nd respondent herein and that
he was a gratuitous passenger. Realizing that he will not be favoured with
an award before the Motor Accidents Claims Tribunal, the claimant had
chosen to approach the Commissioner for Employees Compensation,
claiming to have been employed as a cleaner in the vehicle. It was also
contended that the loss of earning capacity is exaggerated and thus, the
compensation claimed is on the higher side.
4. At trial, the claimant examined himself as PW1 and
Dr.J.R.R.Thiyagarajan was examined as PW2. Ex.P1 to Ex.P10 were
marked. While one Anandhan and one Suresh were examined as RW1 and
RW2. Kesavan, the owner of the vehicle was examined as RW3.
5. The Tribunal upon consideration of the evidence, dis-believed
the evidence of RW3, who deposed that the injured was not employed under
him and held that the Insurance Company would be liable to pay the
compensation. The evidence of RW3 was disbelieved on the ground that
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CMA No.719 of 2020
RW3 had not sent a reply to the notice sent by the claimant, RW3 had in
Ex.R3 admitted that he had taken the claimant to the hospital and taken care
of the medical expenses and had paid an ex-gratia of Rs.5,000/-.
6. The contents of the FIR which describes the claimant/ 1st
respondent as the employee of RW3 was also relied upon by the Tribunal to
buttress its conclusion that the evidence of RW3 to the effect that the
claimant was not his employee is incorrect. The fact that the said letter
emanated on 15.03.2007 after the filing of the original petition was also
taken note of by the Tribunal.
7. On the quantum, the Tribunal concluded that the percentage of
disability or loss of earning capacity caused by this injuries would be 45%.
Taking the age of the petitioner into account, the Tribunal adopted the age
factor at 224 and took the monthly income at Rs.3,585/-. Applying the
formula, the Tribunal awarded a compensation of Rs.2,16,821/-.
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CMA No.719 of 2020
8. Mr.J.Michael Visuvasam, learned counsel appearing for the
Insurance Company would vehemently contend that the Tribunal was not
right in taking the disability at 45%. He would point out that the Doctor,
who was examined had not treated the claimant. He would also rely upon
the discharge summary, to show that though there were two fractures in the
left leg both of them were treated and considering the age of the injured/
claimant the possibility of permanent disability, which would have impact
on the earning capacity, is less. He would also point out that the discharge
summary itself shows that Skin grafting was also done, therefore there is no
possibility of there being any disfigurement. Taking me through the
discharge summary Mr.J.Michael Visuvasam would submit that considering
the nature of the injuries, surgeries done and the age of the 1st respondent at
the time of the accident, the Commissioner was not right in fixing 45% as
disability. He would add that the Tribunal was not justified in dis-believing
the evidence of RW3, the owner of the vehicle. Mere payment of medical
expenses and some amount as exgratia would not confer the status of
employee on the injured.
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CMA No.719 of 2020
9. Contending contra Mrs.Salim Fathima, learned counsel
appearing for the 1st respondent/claimant would submit that the reasons
assigned by the Commissioner for Employees Compensation for dis-
believing the evidence of RW3 are sound and as such, the findings does not
call for any interference. She would also point out that Ex.R3 letter has
been obtained after filing of the claim petition and therefore the evidenciary
value of the same is very meager. The learned counsel would also further
contend that the conduct of the 2nd respondent in not replying to the notice
and admitting that he had spent for the medical expenses and he has also
made ex-gratia payment would show that the injured was actually employed
with him. On the quantum, the learned counsel would submit that the
Doctor has fixed the disability at 50%, when it is taken at 45%, therefore the
award actually does not call for any interference.
10. I have considered the rival submission. On the question of
liability, I do not think I can concur with the contentions of Mr.J.Michael
Visuvasam. No doubt, the Insurance Company was able to create a doubt in
the mind of the Commissioner or the mind of the Court regarding the
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CMA No.719 of 2020
capacity under which the injure had travelled in the vehicle on the fateful
day. But, the same cannot be a ground to completely absolve the Insurance
Company from liability.
11. The accident had occurred between 1.00 a.m. and 2.00 a.m. in
the morning. A person as a gratuitous passenger, in a goods vehicle, at such
odd hours itself is improbable, unless, the person is connected with the
business or the purpose for which the trip is undertaken. It is also seen from
the records that the owner of the vehicle had taken both the injured persons
to the hospital and he had also stated that he has taken care of the medical
expenses of both the injured persons and paid certain amount as ex gratia to
both the persons. While he admitted the employment of one, denies the
employment of the other.
12. The fact that 2nd respondent has not replied to the notice sent
by the 1st respondent claiming compensation raises very serious doubts
about the reliability of his deposition made before the Commissioner. When
there is no direct evidence available, the Court has to go by preponderance
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CMA No.719 of 2020
of probabilities. If we are to go by preponderance of probabilities in the
case on hand, the scale definitely tilts in favour of the 1 st respondent/ injured
employee. I therefore do not see any reason to interfere with the findings of
the Commissioner on the question of liability.
13. On the quantum, I find some force in the contention of the
counsel for the Insurance Company. No doubt, there were two fractures of
the bones in leg viz., fibula and tibia. It is seen from the discharge summary
that the necessary treatment or necessary surgeries required to set right the
fractures have been done. The age of the injured was also only 20 years at
the time of the accident. Therefore, the healing process would be much
faster and there is possibility of complete healing also.
14. Though Dr.J.R.R.Thiyagarajan has spoken about the
functional disability to the effect that he is unable to stretch his legs or fold
his legs, I am unable to agree with the said evidence. Looking at the
discharge summary, the fractures were in the fibula and tibia, which had
nothing to do with the knee. Therefore the claim of the Doctor that he
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CMA No.719 of 2020
cannot fold his legs beyond 80 degrees or stretch his legs cannot be
accepted. The Doctor also accepts that there is no shortening of limb due to
the accident. These factors put together would show that the Doctor has
attempted to enhance the percentage of disability, in order to enhance the
quantum of compensation. I am therefore of the opinion that the percentage
of disability or the percentage of loss of earning capacity has to be reduced.
15. Considering the nature of the injuries that are reflected by the
discharge summary, I am of the opinion that the permanent disability can be
fixed at 30%. If the loss of earning capacity is fixed at 30%, the
compensation payable would be as follows:-
---- x 3585 x 224 x ----- = 1,44,547.20/=
16. The appeal is therefore allowed in part. The compensation
payable is fixed at Rs.1,44,547.20/- and the same is rounded off to
Rs.1,44,500/-. The interest awarded by the Commissioner is confirmed. No
costs. Consequently, connected miscellaneous petition is closed. It is stated
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CMA No.719 of 2020
that the Insurance Company has deposited the entire amount with interest.
The amount remaining after disbursement of the compensation fixed herein,
shall be paid over to the Insurance Company.
09.12.2021
Index: No
Speaking order
dsa
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CMA No.719 of 2020
To
The Commissioner for Employees Compensation,
Deputy Commissioner of Labour – I, Chennai.
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CMA No.719 of 2020
R.SUBRAMANIAN, J.
dsa
CMA No.719 of 2020
09.12.2021
https://www.mhc.tn.gov.in/judis
