Telangana High Court
The United India Insurance Co Ltd vs Md.Gouse Anr on 15 February, 2022
Bench: P.Sree Sudha
HON'BLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEAL No.115 of 2010
ORDER
1. This appeal is filed by the United India Insurance Company
Limited against the orders of the Commissioner for Workmen's
Compensation and Assistant Commissioner of Labour, Nizamabad, in
W.C.No.232 of 2004 dated 12.05.2005.
2. Learned counsel for the appellant would contend that as per
the evidence of R.W.1, the applicant was treated as outpatient in
Sangareddy Government Hospital and no X-Rays were taken for the
injuries while issuing the injury certificate regarding fractures and
the learned Commissioner believed the disability certificate issued by
P.W.2 and also the loss of earning capacity as assessed by him at the
rate of 65%. He would further contend that as per the evidence on
record, he absented to duty only for 20 days, and therefore, the
amount of compensation granted is excessive.
3. Heard the arguments of both the counsel.
4. Perusal of the order under appeal would show that the
applicant was working as a Cleaner under lorry bearing No.AP 15 U
1821, which belongs to the second respondent herein who is the
owner of the offending vehicle. The applicant met with an accident on
23.05.2004. He along with five other labourers received multiple
grievous injuries. In a counter filed by the owner of the lorry, he
stated that he was paying Rs.4,000/- per month to the applicant as
he was working for three months prior to the accident.
5. The Civil Assistant Surgeon of Gandhi Hospital is examined as
P.W.2. He deposed that the applicant sustained malunited fracture of
right leg both bones, fracture of left knee painful movements and
fracture of left forearm both bones with stiffness, and therefore, he
assessed 65% permanent partial disability and the loss of earning
capacity also at 65%. He verified old records of P.W.1 and issued
Ex.A.11 disability certificate. He also deposed that prior to issuance
of disability certificate he had subjected P.W.1 for clinical and
physical examination and various exercises and fresh X-Rays. He
also deposed that the injuries mentioned in Ex.A.2 are corresponding
with injuries mentioned in Ex.A.11. He concluded that P.W.1 cannot
do hard work and cannot sit and stand for long time.
6. The owner of the vehicle was examined as R.W.1. He deposed
that the accident occurred during the course of employment and he
was paying a salary of Rs.4,000/- per month. He issued Ex. A.10
salary certificate to affirm the same. He also stated that after the
accident, the applicant has not been attending duty. He further
deposed that he paid necessary premium for the driver, cleaner and
five labourers.
7. As far as income of the applicant, the Commissioner arrived at
an amount of Rs.1,800/- per month in order to meet the ends of
justice as he was not convinced by the evidence of income claimed,
which was observed to be an exaggeration. The Commissioner arrived
at the said amount by considering the wage normally paid to a
labourer in this area. This Court finds no reason to interfere with the
finding of the Commissioner with regard to the income of the cleaner.
8. Learned counsel for the appellant admitted regarding fractures
in the injury certificate but contended that no X-Rays were taken.
But the doctor who deposed before the Commissioner clearly stated
that he also verified fresh X-Rays apart from physical and clinical
examination before issuing the disability certificate. That apart, he
would also contend that as per the letter issued by the owner of the
vehicle, the cleaner is still working with him and that he absented to
the duty only for 20 days and thus he disputed the loss of earning
capacity as excessive.
9. Perused the letter recorded by the investigator of the insurance
company on 08.10.2004. It was also confronted to the R.W.1 during
re-examination recorded on 01.04.2005. He admitted the statement
recorded under Ex. B.6 but stated that as the labourers, cleaner and
driver are unable to discharge their duties, he removed them from
service. Now it is for the appellant herein to establish that they are
still working and there is no loss of earning capacity, but they could
not do so.
10. Therefore, considering the nature of the injuries sustained by
the cleaner of the vehicle and the medical evidence on record and the
nature of his job, this Court finds that it reasonable to take the loss
of earning capacity at 65%.
11. However, the applicant is entitled for interest at the rate of 12%
per annum from the date of accident till the date of realisation as per
the law laid down by the Hon'ble Supreme Court in the case of
SABERABIBI YAKUBBHAI SHAIKH V/s NATIONAL INSURANCE
COMPANY1.
12. Therefore, the Insurance Company is directed to deposit the
amount of Rs.1,52,271/- after deducting the amount already
deposited, with interest at the rate of 12% from the date of accident
till the date of realisation and they are directed to deposit the same
within one month from the date of this order. On such deposit, the
applicant is entitled to withdraw the entire amount along with
interest.
13. Accordingly, the appeal is dismissed. There shall be no order as
to costs. Pending miscellaneous petitions, if any, shall also stand
dismissed in the light of this final judgment.
____________________
P.SREE SUDHA, J.
15th FEBRUARY, 2022.
PGS
2014 (2) SCC 198
