Madras High Court
K.Manthiramoorthy vs A.Narayanan on 22 February, 2021
C.M.A.No.2611 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.02.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.2611 of 2011
K.Manthiramoorthy .. Appellant
Vs.
1.A.Narayanan
2.United Insurance Company Ltd.,
No.21, Raja Annamalai road,
Purasawakam,
Chennai-600 084. .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Section 30 of the
Workmen Compensation Act, against the order dated 27.10.2010 passed in
W.C.No.282 of 2009 by the Deputy Commissioner of Labour-II,
(Commissioner for Workmen's Compensation-II), Chennai.
For Appellant : Mr.U.M.Ravichandiran
For Respondents
For R2 : Mr.M.J.Vijayaraghavan
for S.K.Krishnamurthy
For R1 : No appearance
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C.M.A.No.2611 of 2011
JUDGMENT
The appellant herein is the petitioner in W.C.No.252 of 2009
claiming compensation for the injuries sustained by him due to the accident
happened on 11.02.2008, while he was served as a driver under the 1 st
respondent in the tempo-traveller in Reg.No.TN-04-R-8844, due to the
accident he sustained “Fracture of Right Femur, Fracture of Both Bone in
Right leg severe Head injuries and other Multiple injuries all over the body”.
Even after a long treatment he has not completely recovered and he was not
able to do the driving work as he done before. Hence, the he claimed
compensation from the 1st respondent and the Insurance Company to whom
the vehicle was insured.
2. Both the respondents contested the case.
3. After full trial, the labour Commissioner awarded compensation
by fixing the loss of earning capacity as 65 %. Aggrieved that order the
appellant preferred this appeal submitting that the labour commissioner has
no locus standi to reduce the disability and failed to fix the loss of earning
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C.M.A.No.2611 of 2011
capacity as 100% without appreciating the medical evidence adduced on his
side. He prayed to fix the loss of earning capacity as 100 % and to enhance
compensation.
4. The learned counsel for the respondents submitted the
objections.
Point for consideration:
(i) whether the labour commissioner was error in holding that
the loss of earning capacity is only 65% to the appellant without considering
the medical evidence adduced on his side.
5. On perusal of the records, it is seen that, on the side of the
appellant, he was examined as R.W.1 and to prove his loss of earning
capacity, the Doctor was examined as P.W.2 and the documents Exs.P.1 to
Exs.P.11 were marked, and there is no evidence on the side of the
respondents, before the Labour Commissioner.
6. It is an admitted fact that the petitioner was employed as driver
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C.M.A.No.2611 of 2011
under the 1st respondent and the accident also admitted, besides the vehicle
was insured with the 2nd respondent. The Labour Commissioner rightly held
that, the 2nd respondent is liable to pay the compensation. While fixing the
compensation based upon the medical evidence, he fixed the loss of earning
capacity as 65%. But the learned counsel for the appellant submitted that the
appellant sustained grievous injuries more particularly, in his hip, right femur
and two fractures in the right leg. Inspite of the treatment, the length of the
right leg was reduced to 2.5 inches and even after the treatment, the leg was
infected, again surgery was conducted, so he was not able to do the work as
he done before and the Doctor - P.W.2 certified that partial and permanent
disability is totally 70 %. Further, he submitted that the labour commissioner
ought to have fixed 100% of loss of earning capacity because he was not able
to do the driving work as he done before and he was not availed for any
alternative allegation. So he prays to fix the loss of earning capacity as 100%.
7. The learned counsel for the respondents submitted that there was
no documentary evidence that he was not able to do the driving work and he
can go for another work because he suffered with partial disability.
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8. On perusal of the evidence of P.W.2 due to the injuries sustained
by the appellant even after the surgery, the right leg is reduced to 2.5 inches
and unable to ride freely. As well as, he would not able to walk without
support. So he clearly proves that the appellant has not done the driving work
as he did before. The labour commissioner ought to have fixed the loss of
earning capacity 100 % along with disability of 75% as certified by the
Doctor. But the Labour Commissioner reduced to 65% without any reason
nor considered the loss of earning capacity. Therefore, loss of earning
capacity is fixed 100% and disability is fixed 75% by enhancement.
9. Considering the facts of the case, this Court accordingly fixes
the loss of earning capacity as 75%. However, as regard to the finding under
other heads of compensation, this Court does not warrant any interference.
The Compensation enhance as follows:
60 x 100 x 213.57 x 4000 = 5,12,568/-
100 100
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10. Accordingly, the award is modified. Further, the Labour
Commissioner awarded interest only if the 2nd respondent default in deposit
of the award but as rightly pointed out by the appellant's counsel the appellant
is entitled the interest for the award 30 days from the date of accident till the
date of realization, as per Section 4-(A)(2) of the Workmen Compensation
Act, the employer is bound to make provisional payment based on the extent
of liability, and he accepts the same as per Section 4-(A)(1) of Act,
compensation under Section 4 shall be paid as soon as it falls due. A
combined reading of said provision makes it clear that an employer is bound
to make even provisional payment also as soon as it falls due. The words as
soon as means, immediately after the accident, in which the workmen
sustains injuries or dies. However in the ratio laid down in 2010(2) TN MAC
80 DB consonance with the ratio laid down by the Larger Bench of Hon'ble
Supreme Court of India reported in Pratap Narain Singh Deo v.Srinivas
Sabata and another, 1976 (1) SCC 289 and Kerala State Electricity Board
v. Valsala,K., 2000 ACJ 5 (SC) held interest on compensation payable after
30 days from the date of accident.
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C.M.A.No.2611 of 2011
11. As discussed above, it is very clear that the claimant is also
entitled to the interest on the amount of compensation after 30 days from the
date of accident. Therefore, the appeal is partially allowed with the
modification that the 2nd respondent is directed to pay the award amount a
sum of Rs.5,12,568/- with interest at the rate of 12 % p.a., after 30 days from
the date of the accident till the date of realization for the award amount to the
appellant, within a period of four weeks from the date of receipt of a copy of
the judgment. No Costs.
19.02.2021
rri
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.2611 of 2011
T.V.THAMILSELVI,J.
rri
C.M.A.No.2611 of 2011
19.02.2021
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