Syed Ismail vs Syed Rasool Anr
2021 Latest Caselaw 4373 Tel

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI

CIVIL MISCELLANEOUS APPEAL NOS.

2134 OF 2004, 2141 OF 2004 AND 1152 OF 2008

COMMON JUDGMENT

All these three Appeals are filed by the respective individuals

seeking higher compensation for the injuries sustained by them in the

accident that occurred on 19.02.1998 involving the vehicle bearing

No.APT 9919.

2. Brief facts leading to these Appeals are that on 19.02.1998

while the driver and cleaner of the lorry bearing No. APT 9919 along

with other labourers were travelling from Nizamabad to Varni for

loading paddy, at Mallaram Shivar, the vehicle met with an accident.

All persons in the lorry sustained injuries, while the opposite car

driver died. The labourer by name Balaiah received grievous injuries

of fracture on neck, shoulder, elbow, head injuries, chest injuries and

injuries on other parts of the body. The other labourer by name Syed

Ismail received abrasion on shoulder, swelling on left femur, head

injuries, chest injuries and injuries on other parts of the body, while

the cleaner by name Syed Habeeb Khan received fracture of clavicle,

abrasion on shoulder, chest injuries, head injuries and injuries on other

parts of the body. All the injured were immediately shifted to

Nizamabad Orthopaedic hospital for treatment and later to Hyderabad CMA Nos.2134 of 2004, 2141 of 2004 & 1152 of 2008

for further treatment. P.S. Nazamabad Rural issued FIR No.25 of

1998 under Section 304A of IPC.

3. The labourer Balaiah filed W.C.No.37 of 2000 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.2,00,000/-. He claimed

that he was being paid wages of Rs.2,300/- per month besides a batta

of Rs.50/- per day. 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. Opposite Party No.1 remained ex parte while Opposite Party

No.2 insurance company denied that the accident has occurred and

that there was any employer and employee relationship between the

owner of the vehicle and the applicant. The Commissioner for

Workmen's Compensation, however held that there was no evidence

produced by Opposite Party No.2 that Opposite Party No.1 was not

the owner of the vehicle or that he has not employed the applicant as a

labourer. Further, on the basis of the evidence given by the doctor, he

has taken the disability percentage of the applicant at 50% and his loss

of earning capacity at 50% and granted a compensation of

Rs.1,12,309/-. Seeking higher compensation, C.M.A.No.2134 of 2004

is filed by the said labourer.

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

Commissioner for Workmen's Compensation and Assistant CMA Nos.2134 of 2004, 2141 of 2004 & 1152 of 2008

Commissioner of Labour, Nizamabad, which was registered as

W.C.No.32 of 2000. The cleaner claimed a compensation of

Rs.2,00,000/- from Opposite Party Nos.1 and 2 claiming that he was

being paid a monthly salary of Rs.2,500/- and that he was 19 years of

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

monthly wages of the cleaner at Rs.1,800/- and the disability

percentage at 40% and loss of earning capacity at 40% and granted a

compensation of Rs.97,295/-. Against this award of the

Commissioner, he is in appeal before this Court in C.M.A.No.2141 of

2004 seeking higher compensation.

5. Another labourer Syed Rasool filed W.C.No.35 of 2000 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.2,00,000/-. He claimed that he was being paid wages of Rs.2,300/-

per month besides a batta of Rs.50/- per day. 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. Opposite Party No.1 remained ex

parte and Opposite Party No.2 insurance company denied that the

accident has occurred and there was any employer and employee

relationship between the owner of the vehicle and the applicant. The

Commissioner for Workmen's Compensation however held that there

was no evidence produced by Opposite Party No.2 that Opposite Party

No.1 was not the owner of the vehicle or that he has not employed the CMA Nos.2134 of 2004, 2141 of 2004 & 1152 of 2008

applicant as a labourer. Further, on the basis of the evidence given by

the doctor, he has taken the disability of the applicant at 60% and his

loss of earning capacity at 60% and granted a compensation of

Rs.1,41,569/-. Seeking higher compensation, the said labourer filed

C.M.A.No.2134 of 2004.

6. Learned counsel for the appellants in these appeals, Sri K.M.

Mahender Reddy, argued that the fact that the labourers were engaged

by the owner of the vehicle was not disproved by the insurance

company and the fact that each labourer was earning Rs.2,300/- per

month and the cleaner was earning Rs.2,500/- per month should have

been considered by the Labour Court. He also submitted that with the

nature of the injuries caused to the appellants, the disability of the

appellants should be considered at 100% and the loss of earning

capacity also at 100%. In support of these contentions, he placed

reliance upon various judgments, which are as follows:

(1) New India Assurance Company Ltd., Secunderabad Vs. K. Yadaiah and another1.

(2) Rayapati Venkateswar Rao Vs. Mantai Sambasiva Rao and another2.

(3) Sabera Bibi Yakubbhai Shaikh and others Vs. National Insurance Company Limited and others3.

(4) Mohd. Ameeruddin and another Vs. United India Insurance Company Limited and another4.

(5) G. Anjaneyulu Vs. Alla Seshi Reddy and another5.

2005 (3) ALD 506

2001 (1) ALD 435

(2014) 2 SCC 298

(2011) 1 SCC 304 CMA Nos.2134 of 2004, 2141 of 2004 & 1152 of 2008

(6) Pasupuleti Ramarao Vs. Pothinaboina Durgarao and another6.

(7) Lingampalli Rajam (died) by LRs. Vs. Colliery Manager, Morgan's Pit Singareni Collieries Co., Ltd7.

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

(9) Ballari Rajendra Vs. G. Rumumurthy and others9.

(10) Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma and others10.

7. Learned counsel for the respondent insurance company, Sri K.

Ashok Rama Rao, however submitted that the Labour Court has been

reasonable enough to grant compensation to the applicants and

therefore, there was no need for any further interference or

enhancement of the compensation.

8. Having regard to the facts and the material on record, this Court

finds that the issues that arise for consideration in the appeals are

about the quantum of wages and also the percentage of disability. The

labourers have claimed that they were drawing a salary of Rs.2,300/-

per month each, while the cleaner has claimed that he was drawing a

salary of Rs.2,500/- per month and even though there was a ceiling of

Rs.2,000/- per month under the Minimum Wages Act, the

Commissioner has taken it at Rs.1,800/- per month. Since the cap was

Rs.2,000/- per month, this Court is of the opinion that the

2001 (4) ALT 245

2000 (2) ALD 752

2000 (1) ALD 554

2003 (4) ALD 183 (DB)

2001 (1) ALD 423

2001 (1) ALT 495 (D.B.) CMA Nos.2134 of 2004, 2141 of 2004 & 1152 of 2008

Commissioner should have awarded Rs.2,000/- towards monthly

wages of the appellants and awarded compensation accordingly.

9. As regards percentage of disability, this Court finds that the

doctor has given evidence as P.W.2 to the effect that the appellant in

C.M.A.No.2134 of 2004 has got 50% partial permanent and

functional disability and 50% as loss of earning capacity; that the

appellant in C.M.A.No.2141 of 2004 has got 40% partial permanent

disability and his loss of earning capacity was at 40%; and that the

appellant in C.M.A.No.1152 of 2008 has got 60% partial permanent

and functional disability and his loss of earning capacity was

quantified at 60%. Since the disability percentage is given as per the

evidence of the doctor, this Court does not find any reason to interfere

with the same.

10. As regards the judgments relied upon by the learned counsel for

the appellants, they are with regard to disability percentage awarded

in case of injury which does not form part of the Schedules of the

Workmen's Compensation Act. The Findings of the Courts in those

judgments are also to the effect that the percentage of disability is

dependent upon the certification made by the doctor. Therefore, this

Court does not see any reason to interfere with the award of the

Commissioner in so far as the disability percentage of the appellants is

concerned.

CMA Nos.2134 of 2004, 2141 of 2004 & 1152 of 2008

11. Accordingly, C.M.A.Nos.2134 of 2004, 2141 of 2004 and 1152

of 2008 are partly allowed. No order as to costs.

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

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 16.12.2021 Svv