Madras High Court
Cholamandalam M.S.General Insurance ... vs S.Justinraj on 3 January, 2024
C.M.A.(MD).No.296 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 04.12.2023
PRONOUNCED ON : 03.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.296 of 2017
and
C.M.P.(MD)No.3509 of 2017
Cholamandalam M.S.General Insurance Co. Ltd.,
Nagercoil,
Kanyakumari District. ... Appellant
Vs.
1.S.Justinraj
2.F.Michaelraj ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 30 of the
Workmen's Compensation Act, to set aside the award dated 30.04.2015
made in W.C.No.1 of 2011 on the file of the Commissioner of Workmen
Compensation (Deputy Commissioner of Labour), Tirunelveli.
For Appellant : Mr.S.Srinivasa Raghavan
For 2nd Respondent : Mr.S.C.Herold Singh
For 1st Respondent : No Appearance
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.296 of 2017
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the second
respondent Insurance Company challenging the award passed by the
Commissioner of Workmen's Compensation, (Deputy Commissioner of
Labour), at Tirunelveli in W.C.No.1 of 2011 on 30.04.2015.
2.The applicant workman who was employed by the first
respondent sustained injuries in an accident which occurred on
03.01.2010 in the course of his employment. The applicant was working
as a driver under the first respondent. The injured was earning a salary of
Rs.7,000/- per month and Rs.30/- as daily batta. He was employed with
the first respondent since 2008. On 03.01.2010 at about 03.00 p.m., he
was driving a Tempo bearing registration No.TN-59-T-3706 belonging to
the first respondent from Vellicode to Senamvilai for the purpose of
unloading marble. After unloading marble, when he was returning back
to Vellicode while the Tempo reached Senamvilai Government School at
about 04.30 p.m., due to mechanical problem, the Tempo turtled into the
road. Though the injured precautiously jumped out from the Tempo, the
Tempo door dashed against the chest of the applicant. As the result of
https://www.mhc.tn.gov.in/judis
which, he sustained injuries on his both knee, right thigh, shoulder, chest
and all over the body. Following which, he was rushed to C.S.I.Neyyor
hospital for treatment by one Christopher and Sunil who saw the
occurrence. The petitioner was admitted there on 03.01.2010 and
discharged after treatment on 28.01.2010 and thereafter he was taking
treatment as out patient. He had incurred more than Rs.2,00,000/- as
medical expenses. In the course of treatment, a surgery was also done in
his shoulder. As a result of which, he was not able to do his normal
avocation and he lost his job and income. Hence, he filed a claim petition
under Workmen's Compensation Act seeking compensation of Rs.
8,00,000/-.
3.The appellant/second opposite party had filed a counter and
categorically stated that all the allegations made by the claimant/injured
has to be proved by him and especially the factum that he was employed
under the first opposite party and he was drawing salary of Rs.7,000/- per
month and batta of Rs.20/- per day. Marking the accident as non fatal
accident, the Deputy Commissioner of Labour, Tirunelveli proceeded
with W.C.No.1 of 2011.
https://www.mhc.tn.gov.in/judis
4.The first respondent was called absent and set exparte and two
witnesses were examined on the side of the claimant as P.W.1 including
the claimant and the Doctor who treated the petitioner as P.W.2 and six
documents Ex.P1 to Ex.P6 were marked. Neither oral evidence was
adduced nor any documents were marked on the side of the second
respondent/ second opposite party. On the basis of the evidence adduced
and documents produced before the Deputy Commissioner of Labour at
Tirunelveli, the learned Commissioner was pleased to observe that
though P.W.2 I.e., the Doctor who treated P.W.1 has issued partial
permanent disability as 75%, recording the fact that no operation was
conducted on the injured and treatment for the blood clot and other
injuries in the chest of the injured, resulted from the running of tyre of
Tempo across the chest of the injured has been duly treated and
specifically observing that even a X ray was not filed on behalf of the
injured, the learned Commissioner concluded that the partial permanent
disability could be only 65% and on that basis, the learned Commissioner
has passed the following award:-
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Head Compensation awarded
(I)Age of the petitioner at the 27 years
time of accident:
(ii)Relevant Factor: 213.57
(iii)Monthly Income of the Rs.4,000/-
injured:
(iv)Permanent disability: 65%
(v)Compensation Calculation : Rs.4,000x60%x213.57x65%
Total compensation awarded: Rs.3,33,169/- with interest @
12% from the date of the claim
until the realization and costs.
5.Challenging the same, the second respondent Insurance
Company has filed this Civil Miscellaneous Appeal on the ground that
the fixation of disability and loss of earning capacity at 65% by the
Commissioner despite absence of any fracture is unacceptable and
challenged the quantum of the award.
6.Heard the learned counsel appearing for the appellant
Mr.S.Srinivasa Raghavan and the learned counsel appearing for the
second respondent Mr.S.C.Herold Singh and perusal the materials
available on records.
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7.Though the injured claimed compensation of Rs.8,00,000/- on
the basis of fact that he was drawing a salary of Rs.7,000/- per month and
daily batta of Rs.30/-, the learned Commissioner has meticulously taken
note of the fact that the claimant failed to prove the same by oral or
documentary evidence. Thereafter, taking into consideration the cost of
living at the time of accident and taking into consideration, the maximum
salary in terms of the Workmen's Compensation Act on the date of
accident, I.e., 03.01.2010 as Rs.4,000/-, 60% of the same has been taken
by the learned Commissioner for calculating the monthly salary of the
injured. That apart, though the Doctor who treated the injured deposed
his evidence as P.W.2 and has marked several documents with regard to
the treatment given to the injured and has also marked the disability
certificate as Ex.P5, thereby, certifying partial permanent disability as
75%, considering the nature of treatment and the nature of injury
sustained by the injured, the learned Commissioner had rightly fixed the
partial permanent disability at 65% and arrived at a just award
compensating the claim of the injured. As a result of which, this Court is
not inclined to interfere in the order passed by the learned Commissioner.
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8.Accordingly, the Civil Miscellaneous Appeal stands dismissed.
There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
03.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
To
1.The Deputy Commissioner of Labour,
Tiruchirappalli.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
L.VICTORIA GOWRI, J.
Mrn
03.01.2024
https://www.mhc.tn.gov.in/judis
