Rathod Vasanth Rao vs Daljeeth Singh
2021 Latest Caselaw 4085 Tel

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


            CIVIL MISCELLANEOUS APPEAL NOS.
                        609, 886 AND 887 OF 2005


                        COMMON JUDGMENT


      All these three Appeals arise out of an accident which has

occurred on 19.01.2002.


2.    Brief facts leading to these Appeals are that on 19.01.2002 at

around 6.00 AM, the driver and cleaner of the lorry bearing No. AP

09 5437 were travelling from Hyderabad to Raipur and when they

reached Balkonda, the driver tried to control the lorry to avert causing

accident to goats on the road and in that process, the driver lost

control over the lorry and the lorry fell in a road side ditch. The driver

of the lorry died on the spot, while the cleaner sustained fractures and

injuries to his left hand, right knee, back and injuries over the left leg

thigh and left leg ankle, injury to left eye, head injury, injury over

right foot and multiple injuries all over the body. P.S. Balkonda issued

FIR No.8 of 2002 under Sections 304-A and 337 of IPC.


3.    The dependents of the driver filed W.C.No.1 of 2003 under

Section 22 of the Workmen's Compensation Act before the

Commissioner      for    Workmen's     Compensation      and    Assistant

Commissioner of Labour, Nizamabad, claiming a compensation of

Rs.3,00,000/- for the death of the driver Palepu Shanker Anna @
                                                       CMA Nos.609, 886 and 887 of 2005
                                      2


Poshetty. It was claimed that the deceased was earning a sum of

Rs.6,000/- per month and was aged 25 years at the time of the death.

The claim was against Opposite Party No.1, i.e., owner of the vehicle,

and Opposite Party No.2, i.e., the insurer of the vehicle. The

Commissioner for Workmen's Compensation and the Assistant

Commissioner of Labour treated the wages earned by the workman as

Rs.3,175/- per month as per the Minimum Wages Act and awarded a

compensation of Rs.3,44,344/-. Against this award of compensation,

the insurance company is in Appeal before this Court in

C.M.A.No.887 of 2005.


4.    The cleaner of the vehicle also filed a claim petition before the

Commissioner     for    Workmen's         Compensation        and      Assistant

Commissioner of Labour, Nizamabad, which was registered as

W.C.No.3 of 2003. The cleaner claimed a compensation of

Rs.2,00,000/- from Opposite Parties No.1 and 2 claiming that he was

being paid a monthly salary of Rs.5,000/- and that he was 22 years of

age at the time of the accident. The Commissioner considered the

monthly wages of the cleaner at Rs.1,871/- as per the Minimum

Wages Act and the loss of earning capacity at 40% and granted a

compensation    of     Rs.99,439/-.       Against   this    award        of      the

Commissioner, the insurance company is in Appeal before this Court

in C.M.A.No.886 of 2005.
                                                  CMA Nos.609, 886 and 887 of 2005
                                   3


5.    Seeking higher compensation, the cleaner of the vehicle is in

appeal before this Court in C.M.A.No.609 of 2005.


6.    In C.M.A.No.887 of 2005, the only ground of the insurance

company is that the deceased driver was not holding a valid and

subsisting driving licence as on the date of the accident and that the

driving licence Ex.A6 was found to be not genuine and that it was not

issued by Nirmal Unit of RTO Office, Adilabad District. Therefore,

according to the insurance company, the 5th respondent, i.e., the owner

of the vehicle, has violated the terms and conditions of the policy and

therefore, the insurance company is not liable to pay any

compensation to the respondents.

7. Learned counsel for the appellant/insurance company, Sri N.

Mohan Krishna, has drawn the attention of this Court to the specific

objection raised by the insurance company before the Commissioner,

i.e., at page 3 of the award, wherein the Commissioner has clearly

mentioned that the insurance company has verified the driving licence

at Nirmal Unit of RTO Office, Adilabad District and had come to

know that the licence furnished by the petitioners was not issued from

them and therefore it is not genuine. Therefore, according to him, the

Commissioner has not properly appreciated the evidence produced by

the insurance company before awarding the compensation to the

deceased driver as well as the claim of the cleaner of the vehicle CMA Nos.609, 886 and 887 of 2005

involved in the accident. Therefore, according to him, the insurance

company should be absolved of the liability.

8. Learned counsel for the respondents/claimants, Sri K.

Mahender Reddy, submitted that the driving licence of the driver was

produced before the Commissioner and the insurance company had

only produced a letter stating that the RTO, Nirmal has not issued the

licence. But according to him, the insurance company has not

produced RTO, Nirmal for examination and therefore there was no

opportunity to the claimants to cross-examine the said witness. He

submitted that Ex.B2 being the attested copy of the certificate issued

by the Unit Office, RTO, Nirmal denying issuance of the driving

licence was objected to by the claimants therein. Therefore, the

insurance company was put to strict proof of the same and by failing

to produce the RTO for examination, the insurance company has

failed to discharge the burden of proof. Therefore, according to him,

the award granted by the Commissioner in favour of the dependents of

the cleaner and also the deceased driver should not be interfered with.

9. Having regard to the rival contentions, this Court finds that the

initial burden of proving that the driver had a valid licence was

discharged by the claimants before the Commissioner, Workmen

Compensation by producing the driving licence. It is the case of the

insurance company that the driving licence produced by the claimants

was not genuine and that it was not issued by RTO, Nirmal Unit.

CMA Nos.609, 886 and 887 of 2005

Therefore, the burden now shifts to the insurance company to prove

that the certificate was not genuine. Except producing the certificate

issued by the RTO, Nirmla Unit, to the effect that the licence was not

issued by them, the insurance company has not produced the said

RTO either for examination or for cross-examination. Therefore, this

Court does not find any reason to rely upon such rebuttable certificate

to interfere with the award of the Commissioner for Workmen's

Compensation in so far as the compensation paid to the driver is

concerned. C.M.A.No.887 of 2005 is accordingly dismissed.

10. As regards C.M.A.No.886 of 2005, the grievance of the

insurance company is that the driving licence produced by the

dependents of the driver was not genuine and therefore, there has been

violation of the terms and conditions of the policy and even the

cleaner of the vehicle is not entitled to any compensation.

11. It has been held in C.M.A.No.887 of 2005 that the insurance

company has failed to prove that the driving licence was not valid.

Therefore, the grounds raised in this Appeal on this count also are not

sustainable. Accordingly, C.M.A.No.886 of 2005 is dismissed.

12. As regards the claim of the cleaner for higher compensation in

C.M.A.No.609 of 2005, learned counsel for the appellant, Sri

Mahender Reddy, submitted that the appellant has claimed to be

receiving Rs.5,000/- per month as salary and that Opposite Party No.1

had also confirmed the said payment. As far as the disability CMA Nos.609, 886 and 887 of 2005

certificate is concerned, the doctor had issued disability certificate

with 54% permanent partial disability and loss of earning capacity at

60%. According to the learned counsel for the appellant, the loss of

earning capacity should have been treated as 100%. In support of his

contention, he placed reliance upon the following judgments:

1. United India Insurance Co. Ltd., rep. by its Branch Manager, Station Road, Parbhani, Maharastra State Vs. Kammari Ramachender and another1

2. Lingampalli Rajam (died) by LRs Vs. Colliery Manager, Morgan's Pit Singareni Collieries Co., Ltd.2

3. Pasupuleti Ramarao Vs. Pothinaboina Durgarao and another3

4. Ballari Rajendra Vs. G. Gurumurthy and others4

5. Rayapati Venkateswar Rao Vs. Mantai Sambasiva Rao and another5

6. New India Assurance Company Ltd., Secunderabad Vs. K. Yadaiah and another6

7. Mohd. Ameeruddin and another Vs. United India Insurance Company Limited and another7

8. Charan Singh Vs. G. Vittal Reddy and another8

13. He also prayed for payment of interest @ 12% per annum from

the date of the accident till the date of payment and in support of his

C.M.A.No.151 of 2004 dt.12.09.2014 of the High Court for the State of Telangana and the State of Andhra Pradesh.

2000 (1) ALD 554

2000 (2) ALD 752

2001 (1) ALD 423

2001 (1) ALD 435

2005 (3) ALD 509

(2011) 1 SCC 304

2003 (4) ALD 183 (DB) CMA Nos.609, 886 and 887 of 2005

contention, he placed reliance upon a decision of the Hon'ble

Supreme Court in the case of Saberabibi Yakubbhai Shaikh and

others Vs. National Insurance Company Limited and others9.

14. Having regard to the rival contentions, this Court finds that the

claim of the cleaner that he was receiving Rs.5,000/- per month was

not denied by Opposite Party No.1 and in such circumstances, the

Commissioner ought not to have considered the monthly wages of the

cleaner at Rs.1,871/- under the Minimum Wages Act. The Minimum

Wages Act is only for determining the minimum wages payable to a

worker and does not represent the maximum wages receivable by any

such worker. Wherever higher amount is accepted as being paid by

the owner, the same should have been considered by the

Commissioner unless it is exorbitantly high as compared to the wages

payable in the open market. The accident had taken place in the year

2002 and Rs.5,000/- per month in the year 2002 does not seem to be

exorbitantly high. Therefore, the wages should have been adopted at

Rs.4,000/- as prescribed under Explanation II to Section 4 of the

Workmen's Compensation Act.

15. As regards percentage of disability, though the learned counsel

for the appellant is seeking 100% disability, this Court is of the

opinion that the doctor has assessed the disability at 54% and loss of

earning capacity at 60%, whereas the Commissioner has allowed loss

(2014) 2 SCC 298 CMA Nos.609, 886 and 887 of 2005

of earning capacity @ 40%. Therefore, the Commissioner should have

accepted or allowed the loss of earning capacity at 60%. The 2nd

respondent-insurance company is directed to pay the compensation by

adopting the wages at Rs.4,000/- per month and the loss of earning

capacity at 60% with interest @ 8% per annum from the date of

accident to the date of payment. C.M.A.No.609 of 2005 is partly

allowed accordingly.

16. In the result,--

(a) C.M.A.No.609 of 2005 is partly allowed;

(b) C.M.A.No.886 of 2005 is dismissed;

(c) C.M.A.No.887 of 2005 is dismissed.

(d) No order as to costs.

17. Pending miscellaneous petitions, if any, in these Appeals shall

also stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 02.12.2021 Svv