Madras High Court
D.Babu vs Susila David on 6 August, 2024
C.M.A.(MD)No.1622 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06.08.2024
CORAM:
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD)No.1622 of 2010
D.Babu .. Applicant/Appellant
Vs.
1. Susila David
2. The Divisional Manager
Royal Sundaran Alliance Insurance Co Ltd.,
46,Whites Road,
Chennai ..Respondents/Respondents
Prayer : This Civil Miscellaneous Appeal filed under Section 30 of
the Workmen's Compensation Act, 1923 to allow the appeal and
enhance the award passed in W.C. No.414 of 2002 dated 28.04.2004
on the file of the Commissioner for Workmen's Compensation,
Madurai
For Appellant : Mr.C.Godwin
For R2 : Mr.S.Srinivasa Raghavan
JUDGMENT
The appellant has preferred the instant appeal seeking
enhancement of compensation in the award passed in W.C. No.414 of
2002 dated 28.04.2004 on the file of the Commissioner for
Workmen's Compensation, Madurai.
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2. The appellant has filed a claim petition under the
Workmen's Compensation Act, stating that on 07.09.2002, while he
was driving the vehicle belonging to the first respondent herein,
under whom he was employed as a car driver, collided with the
oncoming car, which was driven in a rash and negligent manner;
that as a result of collusion, the appellant sustained multiple
grievous injuries, namely, dislocation of the right hip, intra- scapular
fracture of the neck of the right femur, deep cut injury over the right
thigh, cut injury over the head and other injuries; and that he had
taken treatment as inpatient in the hospital from 08.09.2002 to
20.09.2002 and continued his treatment as outpatient.
3. The first respondent though was represented by the Counsel
did not file any counter.
4. The second respondent filed counter stating that he was not
employed under the first respondent and that the averment that he
was earning Rs. 4500/- per month was false and that he did not have
any valid licence.
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5. The appellant examined himself as P.W.1 and the Doctor as
P.W.2. He marked exhibits Ex.A1 to A4 and his medical case sheet as
Ex.C.1.
6. The Commissioner under the Workmen's Compensation Act
held that the appellant was employed under the first respondent as
driver and that he had sustained injuries in the accident that arose
during the course of his employment. The Tribunal also fixed wages
at Rs.3,082/- and assessed the loss of earning capacity as 65% based
on the report of the Doctor.
7. The learned counsel appearing for the appellant would
submit that the Commissioner ought to have fixed loss of earning
capacity at 70% instead of 65%; that the Doctor has certified that
the appellant suffered partial permanent disability at 70% and that
the appellant is entitled for medical expenses for continuos
treatment taken by him.
8. The learned counsel appearing for the second
respondent/Insurance company submitted that the accident took
place in the year 2002; and that only by the amendment made in the
year 2009 enabled the employee to claim actual reimbursement for
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medical expenses and hence the appellant would not be entitled for
reimbursement for medical expenses.
9. This Court has carefully considered the rival submissions.
The appeal raises the following substantial questions of law :
“i) Whether the Court below is right
in holding that the appellant has sustained
65% disability only since the Doctor has
issued the disability certificate at 70%?
ii) Whether the Court below is right in
ignoring the fact that the appellant has to
undergo his replacement surgery for every
five years while deciding the disability and
awarding compensation?
iii) Whether the award of the Court
below is just and reasonable in having
regard to the functional disability sustained
by the appellant?”
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10. As regards the second substantial question of law, it is seen
that before The Workmen's Compensation (Amendment) Act 2009,
the employee was not entitled for any reimbursement of the medical
expenditure. The claim of the appellant is in respect of accident that
took place in the year 2002. As per law applicable on the date of
accident, the appellant is not entitled for any reimbursement of the
expenditure incurred for his medical treatment. Therefore, the
Tribunal was right in not awarding any compensation under the
head of reimbursement for medical expenses.
11. As regards the first substantial question of law, it is
admitted that the Doctor had assessed the disability at 70%. P.W.2
had assessed the disability at 70% as partial permanent disability
and he has issued certificate Ex.A.14. The evidence of the doctor
suggests that the employee suffered 70% functional disability. Under
such circumstances, the Commissioner had not given any reasons to
assess the loss of earning capacity at 65%. In the absence of any
valid reasons to reduce the assessment made by Doctor, this Court is
of the view that the findings of the Commissioner fixing loss of
earning capacity as 65% is erroneous. Hence,this Court is of the
view that the loss of earning capacity can be fixed at 70%. The
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appellant has not made out any case for enhancement of
compensation amount under any other head. Hence, the
compensation payable to the appellant has to be worked out as
under:
S.No Description Amount Amount Award
awarded by awarded by confirmed
the Tribunal this Court or
enhanced
or granted
1 Wages Rs.3,082/- Rs.3,082/- confirmed
2 Age and Factor 36 years -
194.64
3 Loss of earning 65% 70% Enhanced
capacity
4 Compensation Rs.2,33,953/- Rs.2,51,949/- Enhanced
Payable Rounded to
Rs.2,52,000/-
12. Thus, the appellant is entitled to the enhanced
compensation together with accrued interest. The second
respondent shall deposit the enhanced compensation amount within
a period of four weeks from the date of a receipt of copy of this
judgment. On such deposit, the appellant is entitled to withdraw the
same by filling appropriate application.
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13. In the result, the Civil Miscellaneous Appeal stands partly
allowed. No costs.
06.08.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
aav
To:
1. The Commissioner for Workmen's Compensation, Madurai
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN,J.
aav
06.08.2024
https://www.mhc.tn.gov.in/judis
