P.Raja Lingam, Nizamabad. vs Smt. Sabnab Parveen And Another
2021 Latest Caselaw 2936 Tel

         THE HON'BLE Dr. JUSTICE G. RADHA RANI

      CIVIL MISCELLANEOUS APPEAL No.1429 of 2004

JUDGMENT:

This appeal is filed by the appellant-claimant aggrieved by the

orders of the Commissioner for Workmen's Compensation and

Assistant Commissioner of Labour, Nizamabad (for short

'Commissioner') in W.C. No.186 of 2003 in awarding compensation

of Rs.85,572/- only as against his claim of Rs.4,00,000/- with interest

at 24% per annum for the personal injuries sustained by him during

the course of his employment under the Opposite Party No.1 -

respondent No.1.

2. The parties are hereinafter referred to as they were arrayed

in the WC case.

3. The case of the appellant was that he was working as a

cleaner on Lorry bearing No.AHT 9828 under the control of the

Opposite Party No.1 and was drawing a salary of Rs.4,000/- per

month. On 18.04.2002 at about 11.30 a.m. while he was travelling in

the lorry during the course of his employment and when reached

Madhapur village, the lorry was driven by its driver in a rash and

negligent manner with high speed and the driver lost control over the

lorry and hit a cyclist from behind and the lorry turned turtle due to

which the appellant sustained fracture injuries to both bones of his left

leg and lacerated wound to head and multiple and grievous injuries on 2 Dr.GRR,J CMA No.1429 of 2004

various parts of the body. Hence, he filed WC case claiming

compensation of Rs.4,00,000/-.

4. The Opposite Party No.1 filed counter admitting the

employment, salary and the accident. She stated that the vehicle was

insured with the Opposite Party No.2 and was having valid Insurance

Policy and hence, the Opposite Party No.2 alone was liable to pay

compensation. The Opposite Party No.2 also filed counter denying

the allegations.

5. The appellant examined himself as PW.1 and also examined

the Doctor, who issued the disability certificate, as PW.2 and got

marked Exs.A1 to A6. The Opposite Party No.1 was examined as

RW1. No evidence was adduced by the Opposite Party No.2.

6. On considering the evidence on record, the Commissioner

had awarded compensation of Rs.85,572/- holding the Opposite

Parties No.1 and 2 jointly and severally liable to pay the same, within

(30) days from the date of the order.

7. Not satisfied with the same, the appellant preferred the

present appeal seeking enhancement of compensation contending that

the Commissioner acted contrary to law and evidence on record and

reduced the wages from Rs.4,000/- per month to Rs.1,800/- per

month. He further contended that the Commissioner acted contrary to

Section 4-A of the Workmen's Compensation Act (for short 'the Act') 3 Dr.GRR,J CMA No.1429 of 2004

and failed to award interest at 12% per annum from the date of

accident till realization.

8. Heard the learned counsel for the appellant and the learned

counsel for the respondent No.2-Insurance company.

9. Learned counsel for the appellant contended that the

Commissioner considered the wages as Rs.1,800/- per month though

the Opposite Party No.1 admitted the salary of the applicant as

Rs.4,000/- per month and also had not awarded interest at 12% per

annum contrary to Section 4-A of the Act.

10. Learned counsel for the respondent No.2 contended that

the doctor was black listed for giving exaggerated percentage of

disability in several cases, the Commissioner considered the wages as

Rs.1,800/- per month which were reasonable for the cleaner at the

relevant time of the accident in the year 2002, and requested to

dismiss the appeal.

11. Perused the record.

12. The record would disclose that the applicant, who was

examined as PW.1, stated in his evidence that he was paid a monthly

salary of Rs.4,000/- by the Opposite Party No.1. The Opposite Party

No.1 was examined as RW.1. She also stated in her evidence that she

used to pay an amount of Rs.4,000/- per month as salary to the

applicant. Nothing was elicited in their cross examination to 4 Dr.GRR,J CMA No.1429 of 2004

disbelieve the said evidence. No rebuttal evidence was adduced by

the Opposite Party No.2. However, the Commissioner considered the

wages claimed by the applicant at the rate of Rs.4,000/- per month as

exaggeration, reduced it to Rs.1,800/- per month. The Commissioner

reducing the wages to Rs.1,800/- per month, ignoring the evidence on

record, is considered not proper, when there is no contra evidence

adduced by the Opposite Party No.2. As such, this Court is of the

considered view that it is a fit case to allow the appeal as the

compensation calculated by the Commissioner is erroneous. The loss

of earning capacity is to be recalculated as follows:

Rs.4,000/- per month x 60/100 x 226.38 x 35/100 =

Rs.1,90,159.2/- rounded up to Rs.1,90,160/-.

13. Accordingly, the appeal is allowed awarding Rs.1,90,160/-

with interest at 12% per annum after one month from the date of the

accident till the date of deposit and the Opposite Parties No.1 and 2

are directed to deposit the balance amount of Rs.1,04,588/-

(Rs.1,90,160/- minus Rs.85,572/-) within one month from the date of

receipt of a copy of this judgment. No order as to costs.

Miscellaneous Petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J Date:22.10.2021

KTL