Madras High Court
M/S. The New India Assurance ... vs Sivakumar on 1 March, 2021
C.M.A.No.352 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.03.2021
CORAM:
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.352 of 2017
and CMP.No.2548 of 2017
M/s. The New India Assurance Company Limited,
Shevapet, Salem.
.. Appellant
Vs.
1.Sivakumar
2.A.Panneerselvam .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Section 30 of the
Workmen's Compensation Act, 1923, Praying to set aside the revised final
award dated 17.06.2016 passed by the Learned Commissioner of Labour,
Salem in W.C.No.82 of 2013.
For Appellant : Mr.Michael Visuvasam
For Respondents : M/s.C.Munusamy for R1
No Appearance for R2
1/7
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C.M.A.No.352 of 2017
JUDGMENT
The appellant herein is the second opposite party in W.C.No.82
of 2013, filed by the petitioner viz., Sivakumar, against compensation for the
injury sustained by him, due to the accident happened on 03.10.2012 at about
11.30 p.m., as a driver employed under the second respondent herein. The
lorry bearing registration No.TN-47AC-1838, returning from Tuticorin to
Salem, which was going in front of his vehicle, suddenly he applied the brake
without any signal, thereby, front portion of his lorry was damaged. The
alternate driver viz., Ramesh died on the spot itself, this respondent
sustained grievous injuries and taken treatment to Government Hospital and
then shifted to private hospital, inspite of treatment he was not fully
recovered, so he claimed compensation for the injuries. The insurance
company also contested the case.
2. On the side of the victim, the documents Exs.P1 to P16 were
marked, the victim along with Doctor examined as Pws.1 and 2 and there is
no evidence on the side of the respondent and considering all these evidence,
the Commissioner of Labour initially awarded Rs.4,41,455/- along with
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C.M.A.No.352 of 2017
medical expenses of Rs.5,15,161/- awarded. Subsequently, suo motu, he
reviewed his own order by enhancing the loss of earning capacity by
including the injury said to be sustained by the victim in his upper jaw and
considering the damages of the teeth and enhanced the rate of disability and
re-fixed at 25% disability, based upon the certificate Ex.P17 and enhanced the
compensation to Rs.7,18,231/-. Aggrieved by the subsequent enhancement
alone the insurance company has preferred this appeal.
3. Point for consideration:
"Whether the Commissioner of Labour can suo motu
review his own order.?
4. The learned counsel appearing for the appellant submits that
considering the entire evidence, the Commissioner of Labour fixed loss of
earning capacity at 50% and compensation was awarded accordingly along
with medical expenses, which comes totally to Rs.5,15,161/-. Subsequently,
he added another 25% by suo motu review his order by including the
disability caused to the victim with regard to the injury sustained in his upper
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C.M.A.No.352 of 2017
jaw as dental disability.
5. The learned counsel for the appellant further submit that as a
driver, the loss of earning capacity of the victim, cannot be affected by
alleged dental injury, besides, it is also not connected with his avocation, i.e.,
driving of the vehicle.
6. The learned counsel for the respondent submits that in the
said accident the victim sustained multiple injuries. Thereby, the
Commissioner of Labour considered the face injury and enhanced loss of
earning capacity. So, he prays to dismiss the appeal.
7. It is admitted fact that the victim is driver by profession. The
accident was not disputed by this appellant. To prove the injuries, the Doctor
was examined as PW.2, as per his evidence, the victim sustained fractures
and even after the treatment was not able to work. Thereby, he could not do
any work. So, the loss of earning capacity is fixed at 50%. Based upon that
along with medical expenses, the Commissioner of Labour awarded on
21.03.2016. Subsequently, Suo motu, the case was reviewed by the
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C.M.A.No.352 of 2017
Commissioner of Labour on 17.06.2016, stating that the injury sustained in
the upper jaw of the victim was taken into consideration, which was
mistakenly left out, while passing the earlier order and enhanced
compensation to Rs.6,44,525/-. But as per Rule 32(2), the Commissioner
of Labour is not permitted to suo motu his review order, which reads as
follows:
32 (2) The Commissioner, at the time of signing and
dating his judgment, shall pronounce his decision, and thereafter
no addition or alteration shall be made to the judgment other
than the correction of clerical or arithmetical mistake arising
from any accidental slip or omission
Therefore, the subsequent enhancement at 25% made by the
Commissioner of Labour adding one more disability i.e., Dental injury as
alteration in the judgement is unwarranted one. Hence, that portion alone is
set aside as it is not permitted under Rule 32(2) of Act and the earlier order
passed by the Deputy Commissioner of Labour, Salem, dated 21.03.2016
awarding of Rs.5,16,000/- is confirmed. Accordingly, subsequent order dated
17.06.2016 is set aside.
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C.M.A.No.352 of 2017
8. Hence, this Civil Miscellaneous Appeal is allowed and the
order dated 21.03.2016 passed in E.C.No.82 of 2013 by the Deputy
Commissioner of Labour, Salem, is confirmed. The learned counsel for the
appellant submits that the entire award amount awarded by the Deputy
Commissioner of Labour, Salem has already been deposited and hence if the
said amount had not been withdrawn by the claimant, the same may be
permitted to be withdrawn by the appellant. Consequently, connected
miscellaneous petition is closed. No cost.
01.03.2021
ub
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.352 of 2017
T.V.THAMILSELVI,J.
ub
C.M.A.No.352 of 2017
01.03.2021
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