The Oriental Insurance Company ... vs Mr. Hardeep Singh Anr
2022 Latest Caselaw 1070 Tel

     HON'BLE SMT JUSTICE P.SREE SUDHA

              C.M.A.Nos.654 & 681 of 2007
COMMON JUDGMENT:

     Since the issue involved in both the appeals is one

and the same and they are being heard together and

disposed of by way of this common judgment.

2.   For the sake of convenience, the parties herein will

be referred to as arrayed before the Court below.

3.   C.M.A.No.654 of 2007 is filed by the Oriental

Insurance Company Limited aggrieved by the order

dated 20-06-2007 passed in W.C.No.146 of 2006 by the

Commissioner     for   Workmen's      Compensation     &

Assistant Commissioner of Labour-I, Hyderabad.

4.   C.M.A.No.681 of 2007 is filed by the claimant

stating that he was employed by the 1st respondent as a

cleaner-cum-Driver on lorry bearing No.KA 01 D 2599

and while so, on 25.07.2006, he was proceeding from

Nagpur to Hyderabad, at about 6.00 a.m., and when he

reached near the outskirts of Argul Village on N.H.No.7,

another lorry bearing No.KL 11E 7182 came in opposite

direction in a rash and negligent manner and dashed

against his lorry, due to which, he sustained grievous

injuries on his right leg and hand. Thereafter, he was

shifted to Gandhi Hospital, Secunderabad and he

underwent surgery on 18.08.2006. The 1st respondent,

who is the owner of the lorry, was aware of the accident

and the lorry was insured with the 2nd respondent-

Insurance Company and hence, both the 1st and 2nd

respondents are liable to pay the compensation

@ Rs.5,00,000/-.

5. Despite of service of notice, the 1st respondent-

owner of the vehicle had not appeared and did not

choose to file counter and hence, he was made set

ex parte. The 2nd respondent-Insurance Company filed

counter denying the allegations made by the applicant,

contended that the 1st respondent in collusion with the

applicant, has not intimated about the occurrence of the

accident and has not issued any notice and there is no

liable on its part to pay the compensation. It is further

contended that the amount of compensation claimed by

the applicant is excessive and exorbitant.

6. Basing on the above pleadings, the Assistant

Commissioner of Labour, Hyderabad, framed the

following issues.

1. Whether the applicant Mr.Hardeep Singh met with an incident on 25.07.2006 during the course and out of and in the course of his employment as cleaner-cum- 2nd driver on the lorry bearing No.KA 01D 2599 in the employment of the 1st opp.party and sustained injuries in the accident?

2. If yes, what is the percentage of disability and consequent loss of earning capacity suffered by the applicant?

3. Who are liable to pay compensation? And

4. What is the amount of compensation entitled by the applicant?

7. During enquiry, the claimant himself was examined

as AW.1 and on his behalf, AW2 was examined, and

Exs.A1 to A13 were marked. No witnesses were

examined on behalf of the respondents, but Ex.B1 was

marked on their behalf.

8. After considering the oral and documentary

evidence, the Assistant Commissioner of Labour,

Hyderabad, awarded a sum of Rs.1,72,864/- towards

compensation along with stamp fee of Rs.346/- and

advocate fee of Rs.500/-, totaling to Rs.1,73,710/- and

directed the respondents to deposit the said amount in

any Nationalized Bank within a period of 30 days, failing

which the applicant is entitled for interest @ 12% p.a. on

the amount of compensation from the date of the

accident. Disallowing the claim of the applicant to the

extent of 40% towards earning capacity, the claimant

filed this appeal. Aggrieved by the said order, the

Insurance Company filed C.M.A.No.654 of 2007,

contending that the Commissioner has not in correct in

taking the loss of earning capacity as 60% when the

disability suffered by the injured was only 40%.

9. Heard the submissions of the learned counsel on

either side and perused the material available on record.

10. Learned counsel appearing for the Insurance

Company contended that though the applicant sustained

only 40% disability, the Commissioner has taken the loss

of earning capacity of the applicant as 60% and it may be

reduced to 40% and in support of his contention, he

placed reliance on the decision of the Apex Court in

Oriental Insurance Company Limited and Mohd.Nasir and

another1.

11. On the other hand, learned counsel appearing for

the applicant contended that though the applicant has

suffered 100% loss of earning capacity, the

Commissioner has disallowed the claim of 40% earning

capacity. Learned counsel further contended that the

applicant was employed as cleaner-cum-driver with the

2nd respondent and he has valid driving licence. Learned

counsel further contended that the Doctor, who was

examined as AW2, in his examination categorically

deposed that the injuries suffered by the applicant are

grievous in nature and due to non-union of fracture, the

applicant cannot sit on the floor and cannot perform the

duties of cleaner and assessed the disability sustained by

the applicant as 40% and also stated that the applicant

(2009) 6 SCC 280

suffered 100% loss of earning capacity as cleaner.

Learned counsel further contended that as per the

Minimum Wages Act, the Commissioner has taken the

salary of the applicant Rs.2,607/- and it needs no

interference by this Court.

12. There is no dispute that the accident that occurred

on 25.07.2006 and the applicant has sustained grievous

injuries. The applicant in his evidence stated that he was

working as Cleaner on the lorry bearing No.KA 01D

2599 and the police records also clearly indicate that the

applicant was second driver and at the time of accident,

Hardayal Singh was driving the said lorry. Since the

applicant has not produced any driving licence, his nature

of job was considered as Cleaner and the Commissioner

has awarded a sum of Rs.2,607/- as salary. The Doctor,

who was examined as AW2, stated that the applicant has

suffered 40% disability, which is partial and permanent

and there is no possibility of reduction in the disability in

future and the applicant suffered 100% loss of earning

capacity. By considering the said evidence of the doctor

and the nature of the duties of the applicant, the

Commissioner assessed that the applicant has suffered

60% loss of earning capacity. The Commissioner has

considered all the aspects in right perspective and

awarded a sum of Rs.1,72,864/- towards compensation,

which needs no interference by this Court.

13. In the result, CMA No.654 of 2007 filed by the

Insurance Company and CMA No.681 of 2007 filed by

the claimant are dismissed confirming the order dated

20-06-2007 passed by the Commissioner for workmen's

Compensation and Assistant Commissioner of Labour-I,

Hyderabad. No costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________ JUSTICE P.SREE SUDHA

08.03.2022.

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