National Insurance Company Ltd. vs K. Srisailam And Another
2022 Latest Caselaw 5828 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                    C.M.A.No.471 of 2008

JUDGMENT:

The National Insurance Company Limited has filed

this Civil Miscellaneous Appeal, assailing the order dated

28.11.2007 in W.C.No.1 of 2005 on the file of the

Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-IV at Hyderabad (hereinafter

referred to as 'the Tribunal').

2. This application in W.C.No.1 of 2005 was filed

by the applicant under Workmen's Compensation Act,

1923 (for short 'the Act') alleging that he met with an

accident as cleaner on the lorry bearing No.AP28T-J-6459

belonging to opposite party No.1 insured with National

Insurance Company Limited/opposite Party No.2. The

Tribunal has allowed the said application and awarded an

amount of Rs.1,39,126/- holding that the opposite party

Nos.1 & 2 were jointly and severally liable for payment of

the said compensation amount to the applicant.

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3. Feeling aggrieved by the said orders, the

opposite party No.2-National Insurance Company Limited

has filed this C.M.A. on the following grounds:

a) That no additional premium was paid covering the risk of the victim.

b) That the Tribunal erred in not looking into Ex.B.1, which shows that additional premium, is not paid for covering the risk of the cleaner.

c) That the Tribunal grossly erred in taking the loss of earning capacity of victim as 50% when the evidence of Doctor does not state the loss of earning capacity and assess the disability only at 30%; and

d) That the Tribunal has not followed the settled principles of law.

4. Notice served on the respondents. Heard

learned counsel on both sides. The submissions made on

either side have received due consideration of this Court.

AVR,J CMA No.471 of 2008

5. In the light of rival contentions and the material

available on record, the following points would arise for

consideration is

i) Whether the Tribunal is justified in assessing the loss of earning capacity at 50%, though the Doctor has certified 30% of disability?

ii) Whether the interest granted at 12% is on higher side? and

iii) Whether the order impugned is sustainable?

Point Nos. (i) to (iii):

6. The applicant/respondent No.1 herein has filed

W.C.No.1 of 2005 under the Act claiming compensation

alleging that he sustained injuries while working as cleaner

on the lorry bearing No.AP28-T-6459 belonging to opposite

party No.1, who has filed counter before the Tribunal

admitting the employment, ownership, wages, age and

subsistence of the insurance policy, whereas opposite party

No.2/appellant herein-insurance company has filed a

detailed counter denying the entire claim of the applicant

stating that opposite party No.1 has not informed about

AVR,J CMA No.471 of 2008

the accident to the insurance company and driver of the

crime vehicle was not having valid driving licence at the

time of accident and the insurance company has no

liability.

7. During enquiry, on behalf of the applicant, he

himself got examined as AW.1. In his evidence, Exs.A.1 to

A.10 documents are marked. In the cross-examination on

behalf of the insurance company, the applicant has

accepted that in MLC it is mentioned as bleeding injuries.

He denied the suggestion that premium is not paid to cover

the risk of the cleaner and he has further explained that

due to his financial position, he could not immediately

admit in the hospital and he has taken treatment privately.

AW.2, who is the Doctor-G. Subhash Rao, has issued

Ex.A.5-disability certificate stating that he thoroughly

examined the medical record, X-ray and other documents

and on his clinical, radiological and physical examination.

He stated that the applicant was operated to his right leg

and screws were also fixed in his right leg and he was

advised to go another operation for removal of the screws

AVR,J CMA No.471 of 2008

and stated that the applicant cannot stand for long time

and he cannot walk or run as he was doing prior to the

accident. Accordingly, certified that as per Kessler's scale

only, he has assessed 30% permanent partial disability.

8. The trial Court while relying on the oral

evidence of AWs.1 & 2 and Exs.A.1 to A.5 held that the

applicant is able to establish that he was working as

cleaner over the lorry bearing No. AP28-T-6459 and met

with an accident and he has taken treatment initially at

ADRM Hospital, Ramanthpur and that he suffered 30%

permanent and partial disability. However, the percentage

of loss of earning capacity was assessed by the Tribunal at

50% considering the fact that he was working as cleaner in

view of the disability suffered as explained by AW.2-doctor.

The applicant cannot work as cleaner with the same

efficiency as he was working before the accident and

accordingly assessed the loss of earning capacity at 50%.

9. With reference to the claim of the learned

counsel for the appellant that the cleaner in not covered by

the insurance policy and no separate premium is paid, it

AVR,J CMA No.471 of 2008

may be stated that having raised several contentions in the

counter, the appellant/insurance company did not choose

to examine any of its authorized officer in support of their

claim and no witness is examined on behalf of the

insurance company. Nothing worth mentioning is elicited

in the cross-examination of AWs.1 & 2 in support of the

claim of insurance company/opposite party No.2. This by

itself is sufficient to draw an adverse inference against the

appellant/opposite party No.2-insurance company under

Section 114 (g) of the Evidence Act, holding that the

defence set up by them in their counter is not correct. To

arrive at a conclusion, I am supported by the principles

laid by the Hon'ble Supreme Court in Vidhyadhar Vs.

Manikrao and another1.

10. The Tribunal while relying on the principles laid

in the Oriental Insurance Company Limited Vs. Thukaram

Adappa and others2 and in New India Assurance Co. Ltd.,

v. Satpal Singh Muchal3 has rightly held that the statutory

AIR 1999 SC 1441

2007 ACJ 1497

2000 ACJ 1 SC

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employees of the insured such as driver, conductor, ticket

collector and who are carried in the goods carriage are

covered to the extent of liability under the Act.

11. Similarly, I do not find any merit in the

contention of the insurance company that the interest

awarded is on higher side. In fact, in view of the settled

principles of law, the claimant/applicant is entitled for 12%

interest from the date of accident, since no cross-appeal or

objection is raised, this Court is not disturbing the findings

recorded by the Tribunal on this aspect. Accordingly, I do

not find any merit in the appeal and it deserves to be

dismissed.

12. In the result, the Civil Miscellaneous Appeal is

dismissed, confirming the order dated 28.11.2007 in

W.C.No.1 of 2005 before the Commissioner for Workmen's

Compensation and Assistant Commissioner of Labour-IV,

Hyderabad in its entirety. The applicant is entitled for

withdrawal of the compensation amount of Rs.1,39,126/-

deposited before the Tribunal together with interest

accrued thereon, as per the order dated 28.11.2007 in

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W.C.No.1 of 2005. However, in the circumstances of the

case, there shall be no order as to costs.

Miscellaneous Applications, if any pending in this

appeal, shall stand closed.

_________________________________ A. VENKATESHWARA REDDY, J.

Date: 15.11.2022 Isn