Madras High Court
I.Srinivasan vs K.Kamalanathan on 29 January, 2021
C.M.A.No.1409 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1409 of 2018
I.Srinivasan
... Appellant
Vs.
1.K.Kamalanathan
2.United India Insurance Co Ltd.,
Sanmuga Complex, 1-15-24, 1st Floor,
New Idappadi Road, Sankari 637 301.
..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 30 of the
Employees Compensation Act, 1923, to set aside the order made in
W.C.No.592 of 2009 on the file of the Workmen's Compensation
Commissioner cum Deputy Commissioner of Labour, Salem Dated
12.03.2013 and for enhancement of compensation.
For Appellant : Mr.C.Kulanthaivel
For Respondents : Ms.I.Malar for R2
R1 - Exparte
1/6
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1409 of 2018
JUDGMENT
The order dated 12.03.2013 passed in W.C.No.592 of 2009, is
under challenge in the present civil miscellaneous appeal.
2. The claimant is the appellant and the appeal is filed on two
grounds, mainly on the ground that the percentage of disability assessed
by the doctor as 37%, had not been taken into consideration for
assessing the loss of income.
3. The learned counsel for the appellant contended that when the
doctor assessed the disability as 37%, the appellant sustained fracture in
his leg and he was working as a driver, the loss of the income is to be
enhanced. Secondly, it is contended that the interest of 12% granted
from the date of expiry of 30 days from the date of the award is
erroneous. As per the provisions of the Employees Compensation Act,
1923, the interest is to be granted with effect from the date of the
accident.
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C.M.A.No.1409 of 2018
4. The learned counsel for the second respondent objected the
contention by stating that the assessment of disability was given by a
private doctor which cannot be relied upon for the purpose of grant of
loss of income. The appellant was not assessed by the competent
Government Medical Board and therefore, the certificate of private
doctor is rightly not taken into consideration by the Deputy
Commissioner of Labour. Under these circumstances, the Deputy
Commissioner of Labour fixed 5% loss of income as per Part 2 Schedule
1 of the Act. Therefore, there is no infirmity in the award and the
compensation granted is in accordance with the provisions of the Act.
Therefore, the appeal is to be dismissed.
5. The accident occurred on 06.10.2009 at 3.40 a.m., when the
appellant was on duty in the lorry. He was driving the Taurus lorry near
V-Chatram Tole Gate, Nellure District, Andhra Pradesh. The said lorry
was collided with one front going lorry and caused the accident. The
appellant sustained bone fracture and multiple injuries.
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C.M.A.No.1409 of 2018
6. The Deputy Commissioner of Labour adjudicated the issues
and awarded compensation of Rs.26,216/-. This Court is of the opinion
that in the absence of any evidence which is acceptable, this Court in the
present appeal cannot modify the loss of income assessed by the Deputy
Commissioner of Labour. The reliance placed on behalf of the appellant
on the private doctor's assessment certificate of disability stating 37%,
the same cannot be trusted upon, in view of the fact that the medical
certificate was issued by the private doctor. The appellant was not
examined by the competent Government Medical Board. Therefore, in
the present appeal, this Court cannot consider the medical certificate of
the private doctor for the purpose of enhancing the percentage of loss of
income.
7. The Deputy Commissioner of Labour has adopted 5% loss of
income as contemplated under the Schedule of the Act and it cannot be
interfered with unless it is perverse. As far as grant of interest is
concerned, as per Section 4(A) of the Act, the interest is to be calculated
from the date of expiry of 30 days from the date of accident. 30 days
time is granted for the employer to pay the compensation. Thus, the due
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C.M.A.No.1409 of 2018
falls on 31st day from the date of accident. The appellant is entitled for
the interest with effect from the 31st day from the date of accident.
Accordingly, 12% statutory interest is to be granted to the appellant
along with the awarded amount. In all other aspects, the award stands
confirmed.
8. Accordingly, the award dated 12.03.2013 in W.C.No.592 of
2009, stands modified with reference to the grant of interest alone and in
all other aspects, the award stands confirmed. Accordingly,
C.M.A.No.1409 of 2018 stands allowed in part. The respondent
Insurance Company is directed to disburse the modified interest amount
with accrued interest within a period of 12 weeks from the date of
receipt of a copy of this order. On such deposit, the appellant is
permitted to withdraw the entire amount by filing appropriate
application. The payments are to be made through RTGS. No costs.
29.01.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
gsk
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1409 of 2018
S.M.SUBRAMANIAM, J.
gsk
To
The Workmen's Compensation Commissioner cum
Deputy Commissioner of Labour, Salem.
C.M.A.No.1409 of 2018
29.01.2021
https://www.mhc.tn.gov.in/judis/
