Madras High Court
M/S.The New India Assurance vs Thiru.P.Elangovan on 8 February, 2021
C.M.A.No.2007 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.2007 of 2017
and
C.M.P.No.10820 of 2017
M/s.The New India Assurance
Company Ltd.,
'Motor Third' Party Claims Hub',
No.45, Moore Street,
Chennai – 600 001
..Appellant
Vs.
1.Thiru.P.Elangovan
2.M/s.T.S.M.Cargo Movers,
No.25/1, Dr.Ambedkar Nagar,
100 feet Road,
Kolathur,
Chennai – 600 009
..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 30 of the
Employees Compensation Act, against the Final Award dated 20th
September, 2016, (received on 16.03.2017), passed by the
Commissioner for Employees Compensation (Deputy Commissioner of
Labour-II, Chennai), in E.C.No.331 of 2013.
For Appellant : Mr.J.Michael Visuvasam
For Respondents : Mr.K.Varadhakamaraj
[For R1]
1/6
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C.M.A.No.2007 of 2017
Mr.G.David
[For R2]
JUDGMENT
The Award dated 20.09.2016 passed in E.C.No.331 of 2013 is
under challenge in the present Civil Miscellaneous Appeal.
2. M/s. The New India Assurance Company Limited is the
appellant and the Substantial Question of law raised is that whether the
Learned Deputy Commissioner of Labour was correct in determining the
loss of earning capacity of the I Respondent at 75%, when the medical
practitioner examined as Aw2 has not assessed the functional
disablement and the resultant loss of earning capacity in terms of
Section.4 (1)(c)(ii) of the WC Act; whether the Learned Deputy
Commissioner was right in determining the loss of earning capacity at
75%, when the PW2 – Doctor had failed to follow Explanation II to
Section.4(1)(c)(ii) of the Employees Compensation Act, 1923.
3. The learned counsel appearing on behalf of the appellant mainly
contended that the respondent/claimant suffered two accidents. The First
Accident occurred and in respect of the first accident, the appellant/New
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C.M.A.No.2007 of 2017
India Assurance Company is liable to pay compensation. Thereafter, the
second accident occurred within a short span of time and therefore, the
loss of earning capacity of 75% is no way connected with the accident
occurred in a vehicle, which was insured with the appellant/New India
Assurance Company. In other words, the learned counsel for the
appellant is of an opinion that as far as the first accident is concerned,
the claimant sustained injuries, which is not so serious. During the
second accident, he sustained further injuries, which became grievous
and therefore, the fixation of 75% towards loss of earning capacity by
taking into consideration the second accident is improper and therefore,
the appellant/Insurance company is constrained to move the present
appeal. When the respondent/claimant met with two accidents and the
overall loss of earning capacity is 75%, the Insurance company is not
liable to pay the entire percentage of earning capacity as the appellant
company is liable to pay compensation in respect of the first accident
and they are not liable to pay compensation with reference to the second
accident suffered by the claimant.
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C.M.A.No.2007 of 2017
4. The learned counsel for the appellant is of an opinion that 50%
of the loss of earning capacity may be appropriate, this Court is of an
opinion that 50% of loss of earning capacity is just and reasonable.
Thus, the same is to be accepted.
5. In this view of this matter, the award dated 20.09.2016 passed
in E.C.No.331 of 2013 is to be modified and 75% of loss of earning
capacity fixed by the Deputy Commissioner of Labour is modified as
50% and accordingly, the first respondent/claimant is entitled for 50%
towards the loss of earning capacity. Thus, the respondent/claimant is
entitled for a total compensation of Rs.2,65,646/-(Rupees Two Lakhs
Sixty Five Thousand Six Hundred and Forty Six only) along with the
interest at the rate of 12% per annum on expiry of 30 days from the date
of accident.
6. Thus, the Award dated 20.09.2016 passed in E.C.No.331 of
2013 is modified and the Civil Miscellaneous Appeal No.2007 of 2017
stands allowed in part. The respondent/claimant is permitted to withdraw
the balance amount along with the interest at the rate of 12% from the
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C.M.A.No.2007 of 2017
date of expiry of 30 days from the date of accident and the balance
deposit, if any, is to be returned to the appellant/New India Assurance
company and the respective parties are bound to file appropriate
application and the payments are to be made through RTGS. No costs.
Consequently, connected miscellaneous petition is closed.
08.02.2021
kak
Index: Yes/No
Internet:Yes/No
To
The Commissioner for Employees Compensation,
(Deputy Commissioner of Labour-II)
Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2007 of 2017
S.M.SUBRAMANIAM, J.
kak
C.M.A.No.2007 of 2017
08.02.2021
https://www.mhc.tn.gov.in/judis/
