Madras High Court
A.Yogeswaran vs I.P.Dhatchinamurthy on 4 February, 2021
C.M.A.No.1048 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 04.02.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.1048 of 2013
A.Yogeswaran .. Appellant
Vs.
1.I.P.Dhatchinamurthy
2.The National Insurance Company Ltd.,
Mettur Main Road,
Bhavani. .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Section 30 of the
Workmen Compensation Act, against the Judgment and award of the
Commissioner for Workmen Compensation, Salem in W.C.No.390 of 2005,
dated 26.01.2013.
For Appellant : M/s.J.Prithvi
for Mr.S.Kaithamalai Kumaran
For Respondents
For R1 : Ex-parte
For R2 : M/s.N.B.Surekha
JUDGMENT
Page No.1
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
The appellant herein is the injured, who filed W.C.No.190 of
2005 against the respondents claiming compensation for the injuries sustained
by him due to the accident happened on 07.04.2004 while he was travelling in
the lorry bearing Reg.No.TN-33-U-3369 as a cleaner, belonging to the 1st
respondent and insured with the 2nd respondent. He submits that at the time of
accident, in FIR his name is wrongly mentioned as 'Yogeshwara Rao' instead
of 'Yogeshwaran'.
2. Before the Commissioner for Workmen Compensation,
Salem, the second respondent contested the case and the first respondent
remained ex-parte.
3. After full enquiry, the Commissioner for Workmen
Compensation, Salem, dismissed the appellant's claim concluding that the
appellant / insured has not proved that he was travelled in the lorry at the time
of the accident. Aggrieved by the order, the appellant preferred this Civil
Miscellaneous appeal.
(i) Whether the Commissioner for Workmen
Page No.2
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
Compensation, Salem failed to appreciate the oral and
documentary evidence adduced on the side of the appellant
and erroneously conclude that he is not entitled to claim
compensation for the reason that one 'Yogeshwara Rao' was
travelled in the lorry at the time of accident and not this
appellant/Petitioner 'Yogeshwaran' ?
4. The learned counsel for the second respondent contested
that on the date of the accident, the appellant / injured has not travelled in
that lorry nor the driver Duraisamy driven the lorry belongs to the 1st
respondent. Further in the FIR, cleaner name is mentioned as Yogeshwara
Rao and not Yogeshwaran. So, based upon the documents filed by the
appellant / petitioner therein, the Commissioner for Workmen Compensation,
Salem, rightly concluded that the appellant has not travelled in that lorry, so
he prayed to dismiss this appeal.
5. By way of reply, the learned counsel for the appellant
submitted that at the time of the accident, the appellant sustained grievous
injuries and immediately the driver gave the complaint before the Kustagi
Police Station, within one hour. At that time, the driver erroneously mentioned
Page No.3
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
the name of appellant/petitioner as 'Yogeshwara Rao' instead of
'Yogeshwaran'. But, subsequently, the appellant/injured took treatment in the
Ganga Hospital, Coimbatore, and in the wound certificate issued by that
hospital, his name is correctly mentioned as Yogeshwaran for that he relied on
Ex.P.1- FIR and Ex.P.2-wound certificate.
6. On a perusal of the record, it is revealed that on the side of the
appellant / petitioner Ex.P.1 to Ex.P.7 were marked, the appellant/petitioner
was examined as P.W.1 and the Doctor was examined as P.W.2. No oral
evidence adduced on the side of the 2nd respondent / insurance company. As
per the F.I.R./Ex.P.1, immediately on the date of the accident itself i.e.
07.04.2004 at 12.30 a.m., a report was taken from Duraisamy said to be the
driver of the lorry who was admitted in the Govt. hospital, Kustagi. As per his
statement, at 11.30 a.m.,, another truck which came in high speed, hit the
lorry driven by him and caused the accident. The averments comes as follows.
“ ,J Fwpj;J kDjhuh; jug;gpy; jhf;fy;
bra;ag;gl;Ls;s Kjy; jfty; mwpf;ifapid (krh/M/1)
ghprPyid bra;ifapy.; 07/04/2004?e; njjpa tpgj;J
Page No.4
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
md;W Kjy; vjphpkDjhuUf;F brhe;jkhd TN-33?U-3369
vd;w yhhpapid Xl;or;brd;w Xl;Leh; jpU/Jiurhkp Kjy;
jfty; mwpf;ifapd; complainant vd;gJk; FIR Content- y;
“In this accident the driver A.Duraisamay with his cleaner
Yogeshwara Rao and the driver of opposite truck Nagareddy
with his cleaner got injury” vd;W bjhptpj;Js;shbud;gJk;
mwpa tUfpwJ/
7. Immediately, after the accident, F.I.R. was lodged and the driver
name was mentioned as A.Duraisamy and the cleaner name was mentioned as
Yogeshwara Rao. But, after that accident within two days the appellant/
petitioner took further treatment in Ganga Hospital, Coimbatore. In Ex.P.2 -
wound certificate, the following particulars are given:
“Name: Mr.Yogeswaran,A.R., Age.27 years, Sex.Male
Admitted on 10.04.2004, Discharged on 23.04.2004
History and Presenting complaints:
27 years old gentleman alleged to have been involved in a RTA
(lorry vs lorry) on 07.04.2004 at about 11.30 a.m.
Initially treated at KIMS Karnataka and later came here
for further management.”
Page No.5
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
8. So, the petitioner is able to establish that he sustained injuries in
the accident happened on 07.04.2004 and also took first aid treatment at
Karnataka hospital. It is also proved that in the F.I.R., cleaner name is
mentioned as Yogeshwara Rao. But, admittedly at the time of the accident, the
said lorry was driven by the Duraisamy driver along with a cleaner. This
petitioner Yogeshwaran accompanied him and by the typographical error, the
name of the petitioner/cleaner was mentioned as 'Yogeshwara Rao' instead of
'Yogeshwaran'. But Ex.P.2- wound certificate, clearly proves that for the
injuries sustained by this petitioner on 07.04.2004, he took first aid in
Karnataka hospital and then continuously took treatment in private hospital at
Coimbatore. In the wound certificate the petitioner's name is mentioned as
Yogeshwaran. Therefore, this petitioner /cleaner alone travelled in the lorry at
the time of accident. But, the Commissioner for labour failed to appreciate this
fact and erroneously concluded that one Yogeshwara Rao travelled in the
vehicle and not this appellant. Hence, the findings given by the Workmen
Compensation cum Deputy Commissioner of Labour, Salem, is set aside.
Page No.6
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
9. At the time of accident, the appellant was aged about 27 years
and as per the medical certificate issued by the Doctor, the appellant sustained
grievous injuries and he took treatment for 14 days in the private hospital. As
per his contention he was a driver and earned Rs.5,000/- . There is no proof
for the salary. The appellant not raised objection with regard to the nature of
injury sustained by him due to the said accident.
10. The respondent has not adduced any oral evidence before the
Workmen Compensation cum Deputy Commissioner of Labour, Salem but he
contended that the appellant has not travelled in that lorry and to support their
contention, there is no material evidence on their side. So, the objection raised
by the insurance company is unsustainable one. But the appellant proved his
claim and admittedly, the vehicle belongs to the 1 st respondent and insured
with the 2nd respondent, at the time of accident.
11. After recovery, the appellant is doing his work with difficulty,
and as per the wound certificate, he was 27 years at the time of accident. He
Page No.7
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
sustained six fractures in his both legs and took treatment near about 2 weeks
in Ganga hospital, Coimbatore, but he is not sustained permanent disability.
Considering that 25% of partial disability is fixed. No income proof. He was
a cleaner at the time of accident. Hence notional income of Rs.3,000/- per
month is fixed and total sum of Rs.1,60,177/- is awarded to the
appellant/injured as compensation as computed below.
25/100 x 213.57 x 3000 = Rs.1,60,177.50
(AS PER FORMULA 25% HAS TO BE TAKEN IN CASE OF TEMPORARY
DISABILITY)
12. In the result, this Civil Miscellaneous Appeal is Allowed. The
second respondent-Insurance Company is directed to deposit the award
amount of Rs.1,60,177/- as awarded by this Court, together with interest at
the rate of 7.5 % per annum from the date of petition till the date of
realisation, within a period of four weeks from the date of receipt of a copy of
the judgment. No Costs.
04.02.2021
rri
Index : Yes/No
Speaking Order: Yes/No
Page No.8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1048 of 2013
T.V.THAMILSELVI,J.
rri
C.M.A.No.1048 of 2013
04.02.2021
Page No.9
https://www.mhc.tn.gov.in/judis/
