Telangana High Court
Reliance General Insurance ... vs D. Rajaiah Raju Raji Reddy Another on 10 February, 2021
Bench: Challa Kodanda Ram
THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM
C.M.A.No. 374 OF 2012
J U D G M E N T:
This Appeal is directed against the Order dated 16.12.2011
in W.C.No. 108 of 2010 wherein the Commissioner for Workmen's
Compensation and Assistant Commissioner of Labour-II,
Hyderabad awarded total compensation of 5,29,311/- to the
respondent - applicant with interest @ 7.5% per annum from the
date of application till the date of order and further interest at 12%
from the date of expiry of the period of one month from the date of
order passed till the date of realisation.
The appellant is the Insurance Company. The facts are not
in dispute. Loss of earning capacity which as determined as 100%
is only disputed.
Learned counsel for the appellant Sri A. Ramakrishna Reddy
contends that in view of the evidence of A.W.2, who assessed the
physical disability at 45% and the fact that the applicant had
renewed his driving licence thereafter and carrying on the vocation
as driver, granting of loss of earning capacity at 100% is
unsustainable.
This contention is vehemently opposed by the learned
counsel for the respondent - applicant Sri A. Madhava Reddy. He
refers to the order of this Court in C.M.A.No. 141 of 2015 as well
as the judgment of the Division Bench in New India Assurance
Co. Ltd. v. Abdul Khadar Jilani1 and contends that taking /
renewal of licence subsequently is no proof with respect to the
employability or employment of a particular individual. He would
2007(4) ALT 607 (DB)
further assert that at any rate, the same being not forming part of
the orders of the Competent Authority, it cannot be taken into
account and he prays therefore, for dismissal of the Appeal.
Having regard to the respective submissions, the fact
remains that the applicant was the driver as per the evidence of
A.W.2, who was the Orthopaedic Surgeon in King Koti
Government Hospital, King Koti, Hyderabad and as per the record
given by Sri Sanjeevani Hospital, Dilsukhnagar, he sustained
"grossly comminuted fracture distal ends of both bones right leg,
which was not united, infected non-union with stiffness of ankle
50% of movements reduced, with half of shortening, resulting in
painful limp and deformity". He had also deposed before the
Competent Authority that the applicant would have problems in
sitting, squatting and walking.
Though the evidence discloses that the applicant would not
be able to drive heavy goods vehicle, it cannot be said that he
would not be employable as the driver at all. In that view of the
matter, determination of loss of earning capacity at 100% appears
to be on higher side.
Considering the fact that the age of the applicant is only 34
years at the time of accident and also considering the nature of
injuries and the fact that he continued to renew the driving licence
since 1996 which indicates that he is still capable of being engaged
as a driver, loss of earning capacity is restricted to 70%. When the
compensation determined at Rs.4,83,984/- is restricted to 70%, it
comes to Rs.3,38,788/-. Further, it may be noted that the
Authority had granted interest at 7.5% from the date of Application
till the date of order and further interest at 12% per annum from
the date of expiry of period of one month from the date of the order
passed by the Commissioner till the date of realisation. In terms of
the judgment of the Supreme Court in Oriental Insurance
Company v. Siby George2, the applicant is entitled to interest at
12% per annum one month from the date of accident i.e.
21.12.2009 to 23.12.2012 the date on which the amount was
admittedly deposited.
The Appeal is accordingly, allowed in part. It is made clear
that the amount already paid to the applicant shall be given credit
to in the process of settlement of the amount. No costs.
Miscellaneous Petitions, if any stand closed.
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CHALLA KODANDA RAM, J
10th February 2021
ksld
(2012) 12 SCC 540
