Telangana High Court
United India Insurance Company ... vs Syed Yousuf Anr on 8 November, 2021
Bench: P.Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
CIVIL MISCELLANEOUS APPEAL NO.958 OF 2005
JUDGMENT
This Civil Miscellaneous Appeal has been filed by Opposite
Party No.2-insurance company challenging the Award of the
Commissioner for Workmen's Compensation and Assistant
Commissioner of Labour-I, Hyderabad in W.C. No.202 of 2004
dt.13.06.2005.
2. The brief facts leading to filing of this Appeal are that there was
a road accident which occurred on 20.09.2004 in which the
applicant/1st respondent sustained injuries as he was working as a
driver on the lorry bearing No.APT 5491. The applicant was in the
employment of Opposite Party No.1 in W.C.No.202 of 2004 for about
five months and he was on duty on the day of the accident when the
lorry was proceeding from L.B.Nagar towards Nagole cross roads.
The lorry was stopped on the left side of the road at Nagole cross
roads at about 3.30 PM. When the applicant was proceeding towards a
hotel to have a cup of tea, an unknown Hero Honda Splendor motor
cycle hit him and sped away. The applicant sustained bleeding injuries
and both bones of his left leg were fractured and he was immediately
shifted to Osmania General Hospital for treatment and became
permanently disabled and lost his total earning capacity. The applicant
filed a dispute before the Commissioner for Workmen's
Compensation seeking compensation from Opposite Parties No.1 and
2 and claimed a compensation of Rs.3,00,000/- against both the
Opposite Parties. The Commissioner for Workmen's Compensation
has awarded a compensation of Rs.1,82,741/- towards loss of wages
and the compensation towards disability at the rate of 50%.
3. Against this Award of the Commissioner, Opposite No.2 in
W.C.No.202 of 2004 is in Appeal before this Court by raising the
following substantial questions of law:
(a) Whether the Commissioner is correct in mulcting the
liability on the appellant when the applicant did not receive
the injuries out of his employment?
(b) Whether the Commissioner is correct in entertaining the
application when there is no nexus between the insured
vehicle and the accident?
(c) Whether the Commissioner is correct in considering the loss
of earning capacity at 50% when the injury sustained is not a
scheduled one?
4. Learned counsel for the appellant, Smt. P.Vijaya Lakshmi,
submitted that the accident did not occur while the applicant was in
the vehicle and therefore there is no nexus between the insured
vehicle and the accident. Further, the accident had occurred when the
applicant was on the road proceeding to the other side of the road to
have a cup of tea and therefore he did not receive injuries out of his
employment. Further, she submitted that the disability of the applicant
was fixed at 30% by the doctors, whereas the Commissioner has
considered the disability at 50% and has granted compensation
accordingly. Therefore, according to her, the award of compensation
has to be set aside.
5. Learned counsel for the 1st respondent, Sri K. Sreedhar,
submitted that the applicant being the driver of the vehicle received
grievous injuries on his leg, due to which he lost his earning capacity
as a driver and therefore, the Commissioner has rightly awarded the
compensation by considering the loss of earning capacity at 50%.
Therefore, according to him, there was no need to interfere with the
award of the Commissioner.
6. Having regard to the rival contentions, this Court finds that the
applicant was in the employment of the lorry owner, Opposite Party
No.1, as driver of the lorry; that the applicant had parked the vehicle
on the side of the road and was crossing the road to have a cup of tea.
Therefore, it cannot be said that the applicant was not under the
employment of the lorry owner at the time of the accident. The
accident is also not denied and the only dispute is with regard to
disability of the lorry driver/applicant.
7. This Court finds that the doctor, who examined the applicant,
had himself assessed the physical disability of the applicant at 30% on
Kessler's Guidelines and had certified that the applicant will not be
able to sit or squat and will not be able to walk for long distances and
had stated that he has suffered around 50% loss of earning capacity. It
was only after considering the evidence of the doctor that the
Commissioner held that the applicant has suffered 50% loss of earning
capacity. Therefore, this Court does not see any reason to interfere
with the order of the Commissioner.
8. The Civil Miscellaneous Appeal is accordingly dismissed. No
order as to costs.
9. Pending miscellaneous petitions, if any, in this CMA shall also
stand dismissed.
___________________________
JUSTICE P. MADHAVI DEVI
Date: .11.2021
Svv
