The New India Assurance Company ... vs Shri Mohd Khathal Hussain Anr
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        THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM


           CIVIL MISCELLANEOUS APPEAL No.342 of 2014


JUDGMENT:

This is an appeal filed by the New India Insurance Company (for

short, the Insurance Company) against the order dated 24.03.2006

passed by the Commissioner, Workmen's Compensation, W.C.No.57 of

2003 NF.

Brief facts of the case are that the one Mohd. Khathal Hussain

(hereinafter referred to as the 'claimant') filed an application before the

Commissioner, Workmen's Compensation stating that he is working as a

labourer on the tractor-trailer bearing No.AP-22T-9399/9400 of one

Satyanarayana Goud (respondent No.2 herein); that on 06.04.2002 he

loaded groundnut bags in the said vehicle and was proceeding to

Mahabubnagar from Peddachinthakunta; that at about 10:30 AM when

the vehicle reached the limits of Bandarpally village, the driver had

driven the vehicle at a high speed thereby lost control of the vehicle and

the vehicle turned turtle and the claimant fell down and received injuries

to his right leg besides other injuries. Alleging that the accident occurred

due to the rash and negligent driving of the driver of the vehicle, the

claimant filed an application in W.C.No.57 of 2003 NF, claiming a

compensation of Rs.2,00,000/- for the disability and the consequential

loss of earning capacity he suffered due to the accident.

Counter affidavits were filed by the respondents resisting the claim

of the claimant. On behalf of the claimant, AWs.1 and 2 were examined,

and Ex.A1 to A6 were marked. No oral or documentary evidence was

adduced on behalf of the respondent No.1-owner and respondent No.2-

insurance company. The Commissioner, after considering the evidence

and material available on record, awarded a compensation of Rs.97,981/-

cma_342_2014 2 CKR, J

to the claimant, including stamp fee of Rs.196/- and advocate fee of

Rs.500/-, holding the respondent No.1-owner and respondent No.2-

insurance company jointly and severally liable to pay the compensation.

Aggrieved by the same, the insurance company filed this appeal.

Learned counsel for the appellant contends that the Commissioner,

without there being any material evidence, erred in considering the loss

of earning capacity as 40% when AW.2-Doctor certified that the claimant

suffered 20% physical disability, and further the compensation awarded

is exorbitant.

Learned counsel for the claimant submits that the order of the

Commissioner does not call for any interference and the appeal is liable

to be dismissed.

It is the evidence of the claimant/AW.1 that the accident occurred

due to the rash and negligent driving of the driver of tractor-trailer, and

that he suffered injuries to right leg, right knee, left knee and foot, and

after the accident he has taken treatment at District Hospital,

Mahabubnagar, and later at a private hospital and spent Rs.20,000/-

towards medical expenditure. He further deposed that he was employed

as coolie (labourer) on the tractor-trailer of respondent No.1 and that he

used to earn Rs.3,000/- per month, and due to the injuries and pain he is

unable to do any work and therefore he is entitled to a compensation of

Rs.2,00,000/-.

Ex.A1 is the copy of FIR. Ex.A2 is the wound certificate. Ex.A3 is

the certified copy of Charge Sheet filed by the Chinnachintha kunta police

after investigation. The claimant was shown as LW.5 in the charge sheet

and it is recorded that the claimant was a labourer and he sustained

injuries in the accident occurred on 06.04.2002.

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AW.2-Dr.A. Anand, who is the Civil Surgen, Orthopedic, in District

Hospital, Mahabubnagar, deposed in his evidence that he examined the

claimant on 24.03.2002 and found that the claimant suffered deformity

of right leg, with shortening of right leg with limping, and that he issued

Ex.A4-Disability Certificate assessing the disability at 20% and opined

that it would be difficult for the claimant to lift weights on account of the

disability.

Ex.A5 is the copy of insurance policy showing the insurance

coverage period from 22.01.2002 to 21.01.2003. Therefore, by the date

of accident on 06.04.2002, the insurance policy was valid and subsisting.

Ex.A6 is the Registration Certificate of the tractor-trailer.

Though the insurance company has filed counter affidavit disputing

the occurrence of accident, the age and income of the claimant, the

injuries, and also the insurance policy, no material evidence is placed on

record to substantiate the same. On the contrary, the Ex.A1-FIR, Ex.A2-

wound certificate and Ex.A3-charge sheet would go to show that the

accident occurred on 06.04.2002 in which the claimant suffered injuries,

and Ex.A5 insurance policy is valid and subsisting as on the date of

accident.

Coming to the aspect of assessment of disability and loss of

earning capacity of the claimant, the Commissioner has framed an issue

with regard to the percentage of disability and the consequential loss of

earning capacity on account of the disability. While determining the said

issue, in paragraph 21 of the impugned order, the Commissioner has

recorded a finding that AW.2 is a competent and qualified medical officer

and an Orthopedic Surgeon at District Hospital, Mahabubnagar, and that

AW.2 issued Ex.A4-Disability Certificate after examining the injuries

suffered by the claimant, and after arriving at an opinion that it would be

difficult for the claimant to lift weights owing to the injuries, AW.2 cma_342_2014 4 CKR, J

assessed the physical disability at 20%. The Commissioner has further

observed that there is no reason to disbelieve the evidence of AW.2-

Doctor, and that the claimant being a labourer on the tractor-trailer and

the strenuous nature of work of the claimant and further keeping in view

the deformity of lower limb suffered by the claimant, the Commissioner

has assessed the loss of earning capacity as 40%.

Coming to the quantum of compensation, it is the specific

admission of the respondent No.1-owner of the tractor-trailer that the

claimant was employed as labourer on his tractor-trailer and that the

claimant was being paid wages at the rate of Rs.3,000/- per month.

Though in the cross examination a suggestion was put by the insurance

company that the claimant was not paid more than Rs.15/- per day, the

same was denied by the claimant. Though the monthly wages of

Rs.3,000/- was disputed by the insurance company, no material was

placed in support of its contention that the claimant was not earning

Rs.3,000/- per month.

In paragraph 24 of the impugned order, the Commissioner,

considering the minimum rates of wages as fixed by the Government of

A.P. in Public Motor Transport Schedule Employment in G.O.Ms.No.30,

LET & Factories (Lab.II) Department, dated 27.7.2000, and the V.D.A.

notified by the Commissioner of Labour from time to time, had

considered the monthly wage of the claimant, for the purpose of

calculation of compensation, as Rs.2,057/-. Taking into consideration the

monthly wages as Rs.2,057/- and the loss of earning capacity at 40%,

the Commissioner has calculated the compensation as Rs.97,285/-, and

by awarding stamp fee of Rs.196/- and advocate fee of Rs.500/-, arrived

at a total compensation of Rs.97,981/-, with interest at 9% per annum

from the date of filing application.

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Having considered the respective submissions, and having perused

the record, this Court is of the view that the Commissioner has

appreciated the facts and evidence in proper perspective, and there are

no valid grounds to interfere with the order under appeal.

Accordingly, the appeal is dismissed. No costs. Miscellaneous

petitions, if any pending, shall also stand dismissed.

____________________ CHALLA KODANDA RAM, J 24th February, 2021

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THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM

CIVIL MISCELLANEOUS APPEAL No.342 of 2014

24th February, 2021

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