The New India Assurance Company ... vs A.Anjaiah Anr
2021 Latest Caselaw 982 Tel

      THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM

                          C.M.A.No. 1136 of 2006

JUDGMENT:

This is an Insurance Company Appeal aggrieved by the order

dated 23.11.2006 in W.C. No. 191 of 2005 on the file of the

Commissioner for Workmen's Compensation and Asst.

Commissioner of Labour-I, Hyderabad.

The applicant, who was the driver employed by the 2nd

respondent owner on the auto rickshaw bearing Registration No.

AP 13V 4047, sustained fracture of right leg patella, head injury

besides other multiple injuries in an accident, on 16.10.2005,

during the course of employment. The applicant claiming monthly

wages at Rs.4,000/-, filed the claim for Rs.4 lacs towards

compensation against the insurance company and the owner

jointly and severally. The Commissioner, after full -fledged trial,

held that the applicant sustained injuries during the course of

employment and based on the medical evidence, assessed the

physical disability at 15% which is permanent and partial and

accordingly, held that the applicant suffered 40% loss of earning

capacity. The total compensation of Rs.1,52,808/- was awarded to

the applicant with interest at 12% per annum thereon from the

date of filing the Application.

Learned counsel for the appellant submits that the applicant

had failed to establish the employer-employee relationship.

Further, as against the 15% disability found by the Commissioner,

the Authority had taken 40% as loss of earning capacity and the

same being unreasonable, the order under Appeal is liable to be

interfered with.

The Appeal is resisted by the learned counsel for the

respondent applicant.

Having regard to the submissions made, at the outset, it may

be noted that there is no dispute with respect to the involvement of

the subject vehicle in the accident on 16.10.2005. There is also no

dispute that the applicant was driving the vehicle and he had the

driving licence. As the vehicle is an auto, if the applicant was not

the driver of the vehicle owned by the 2nd respondent - insurer of

the vehicle, there would be no occasion for him to drive the vehicle.

Though it is sought to be contended by the learned counsel that it

is the normal practice that the vehicle owners do hire the vehicles

to the drivers, in the absence of any evidence to the said effect, the

inevitable conclusion, in the facts of the present case, would leave

no manner of doubt that the clamant was the driver of the subject

auto. In that view of the matter, the contention of the learned

counsel that the applicant was not the driver of the vehicle is

liable to be rejected.

So far as loss of earning capacity which has been taken at

40% is concerned, the same not being in excessive and there being

no dispute that the Commissioner has discretion to make such

assessment, the same does not warrant any interference. It may

also be noted that the Division Bench of this Court in Chairman,

Employees' State Insurance Corporation, Hyderabad v.

Swaminath Singh1 had held that the disability is different from

loss of earning capacity. In coming to the said conclusion, the

Division Bench had relied on a large number of decided cases. The

ratio of the said judgment equally applies to the case on hand. In

2007(4) LLN 225

those circumstances, there is no merit in the Appeal and the same

is accordingly, dismissed. No costs.

Miscellaneous petitions, if any pending, shall stand closed.

____________________________ CHALLA KODANDA RAM, J 25th March 2021

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