Madras High Court
A.Subramani vs Thiru A.Pandurangam on 25 January, 2021
C.M.A.No.1447 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25-01-2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
CMA No.1447 of 2016
A.Subramani .. Appellant
vs.
1.Thiru A.Pandurangam
2.The New India Assurance Co. Ltd.,
Motor Third Party Claims Cell,
No.45, Moore Street,
Chennai-600 001. .. Respondents
PRAYER : Civil Miscellaneous Appeal is preferred under Section 30 of the
Workmen Compensation Act, against the Award dated 01.08.2008 made in
WC No.484 of 2006 on the file of the Deputy Commissioner of Labour-I,
Chennai.
For Appellant : Mr.V.Venkatesan
For Respondent-2 : Mr.J.Michael Visuvasam
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C.M.A.No.1447 of 2016
JUDGMENT
The Award dated 01.08.2008 passed by the Deputy Commissioner
of Labour-I, Chennai in WC No.484 of 2006, is under challenge in the
present Civil Miscellaneous Appeal.
2. The substantial question of law mainly raised in the present
Civil Miscellaneous Appeal is that when the employer-employee
relationship was proved, the liability was fixed on the employer instead of
fixing the liability on the second respondent-Insurance Company.
3. The claimant preferred the present Civil Miscellaneous Appeal
questioning the fixation of liability on the employer instead of fixing the
liability on the second respondent-Insurance Company as per the policy.
4. The appellant states that he was employed by the first opposite
party Mr.Pandurangam as Coolie in a goods vehicle bearing Registration
No.TN.20-AZ-5558 on a monthly salary of Rs.4,000/- and Rs.20 per day as
batta.
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C.M.A.No.1447 of 2016
5. On 07.06.2006, the lorry met with an accident and the claimant
sustained multiple injuries. He was admitted in KMC Hospital at Chennai
and subsequently, taken treatment. A case was registered in Crime
No.248/P2/2006.
6. The claim petition was filed by the appellant, seeking
compensation.
7. The Deputy Commissioner of Labour adjudicated the issues
with reference to the documents and evidences produced by the respective
parties.
8. The findings of the Deputy Commissioner of Labour clearly
states that the accident was admitted by the parties and the Insurance
Company was also in force on the day of occurrence.
9. This apart, it was established that the employer-employee
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C.M.A.No.1447 of 2016
relationship between the claimant and the first respondent was in force.
10. In view of the fact that the parties had agreed that the
employer-employee relationship existed on the day of accident and the
Insurance Company Policy was also in force, there is no reason to shift the
liability on the employer and in fact, the liability is to be fixed on the second
respondent-Insurance Company as per the policy.
11. Learned counsel appearing on behalf of the second
respondent-Insurance Company, however, contended that based on the
Disability Certificate Ex.A-6, the nature of disability was fourth and fifth
two toes of the right foot got fractured. Therefore, as per the Schedule in the
Statute, the disability percentage is to be fixed as 5% towards loss of
income. Even in case of amputation, both the toes, the loss of earning
capacity is to be fixed as 5%. Contrarily, in the present case, it is only a
fracture and subsequently got cured.
12. This being the factum, fixing 35% towards loss of earning
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C.M.A.No.1447 of 2016
capacity is excessive and in fact 5% is to be fixed towards earning capacity.
13. Learned counsel appearing on behalf of the second
respondent-Insurance Company is unable to deny the liability in view of the
fact that the policy was in force and further the employer-employee
relationship was also established by way of admission. Under these
circumstances, the disability percentage for calculating the loss of earning
capacity is reduced from 35% to 5% and accordingly, the total
compensation is modified as Rs.24,704/-.
14. Thus, the liability is now fixed on the second respondent-
Insurance Company. The second respondent-Insurance Company is directed
to deposit the modified compensation amount of Rs.24,704/- along with
interest at the rate of 12% per annum from the date of accident till the date
of deposit. The second respondent-Insurance Company is directed to deposit
the entire modified compensation amount along with the accrued interest,
within a period of twelve weeks from the date of receipt of a copy of this
judgment and on such deposit, being made, the appellant-claimant is
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C.M.A.No.1447 of 2016
permitted to withdraw the entire Award amount by filing an appropriate
application and payments are to be made through RTGS.
15. In this view of the matter, the Award dated 01.08.2008 passed
in W.C. No.484 of 2006 by the Deputy Commissioner of Labour-I, Chennai,
stands modified and consequently, Civil Miscellaneous Appeal No.1447 of
2016 stands allowed in part. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is also dismissed.
16. The claimant is permitted to withdraw the entire Award
amount with accrued interest by filing an appropriate application and
payments are to be made through RTGS.
25-01-2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Svn
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C.M.A.No.1447 of 2016
To
The Deputy Commissioner of Labour-I,
Chennai.
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C.M.A.No.1447 of 2016
S.M.SUBRAMANIAM, J.
Svn
C.M.A.No.1447 of 2016
25-01-2021
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