Telangana High Court

The United India Insurance Company ... vs K. Kishan And Another on 13 December, 2023

      THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

          CIVIL MISCELLANEOUS APPEAL No.637 of 2013
                            AND
            CROSS-OBJECTIONS SR.NO.15743 of 2015


COMMON JUDGMENT:

1. Aggrieved by the order dated 25.06.2013 passed in W.C.No.17 of

2011 on the file of the Commissioner for Employees' Compensation

and Deputy Commissioner of Labour, Nizamabad (hereinafter be

referred as 'the Commissioner'), the present appeal is filed by the

opposite party No.2 seeking to allow the Appeal by setting aside the

order passed by the Commissioner. Also aggrieved by the said order

of Commissioner, the claimant filed the Cross Objections petition

seeking the Court to modify the order rendered by the Commissioner

by awarding just compensation with interest @12% P.A. from the date

of accident to till the date of realization.

2. For the sake of convenience, the parties hereinafter be referred

as they were arrayed before the Commissioner.

3. The facts of the case in brief are that the applicant filed a claim

application claiming compensation of Rs.10,00,000/- on account of

injuries sustained by him in the accident that occurred on

23.12.2010. As per the applicant, he was employed by the opposite

party No.1 as driver on Car bearing No.AP 25K 345. On 23.12.2010

at about 11.00AM, while he was discharging his duty as driver on the

said car and coming from Pothangal to Nizamabad and reached

MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015

Gannaram Village shivar near stone cutting machine, a lorry came in

an opposite direction in a rash and negligent manner. Immediately he

applied sudden brakes to avert the accident due to which the

applicant lost control over the car and gave dash to road side culvert.

As a result, the applicant sustained fracture of his right thigh, both

bones of left ankle, right side ribs and injuries to forehead and other

party of his body. Immediately, he was shifted to Amrutha Laxmi

Hospital, Nizamabad, from there, he was shifted to NIMS Hospital,

Hyderabad and thereafter took treatment in private hospitals. Due to

the said injuries, the applicant became permanently disabled and was

removed from his employment. Based on the complaint, P.S.,

Dichpally, registered a case in Crime No.124 of 2011 under Section

338 IPC. It is further contended by the applicant that he was aged 41

years as on the date of accident and was getting wages of Rs.8,000/-

per month. As the accident occurred during the course and out of

employment by opposite party No.1, opposite party No.1 and opposite

party No.2-Insurance Company both are jointly liable to pay

compensation.

4. Opposite party No.1 filed its written statement stating that the

applicant was being paid an amount of Rs.7,000/- per month and

that he was aged more than 45 years and that he met with an

accident while discharging his duties and that the vehicle was insured

with opposite party No.2 and the said insurance policy was in force at

MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015

the time of accident and that the compensation claimed is excessive

and exorbitant and prayed to dismiss the application against them.

5. Opposite party No.2 filed its written statement denying the age,

wages, residence of the applicant, employer-employee relationship,

manner of accident, injuries sustained by the applicant and also

denied that the applicant is having a valid driving license. The

opposite party No.2 also filed additional written statement contending

that the applicant by colluding with opposite party No.1, filed the

claim petition for wrongful gain and that the applicant is having 50%

share in Thirumala Rice Mill and that the applicant was not a driver

and the accident did not occur during the course of his employment

and that the claim is not maintainable and hence prayed to dismiss

the claim application.

6. Before the Commissioner, the applicant was examined as AW1

and got examined AW2, who is an Orthopedic Surgeon and got

marked Exs.A1 to A12.

7. On behalf of opposite party No.2, RW1 to RW5 were examined

and Exs.B1 to B7 are marked.

8. After considering the evidence and documents filed, the learned

Commissioner awarded compensation of Rs.3,95,617/-. Aggrieved by

the same, the present appeal is preferred by opposite party No.2-

Insurance Company and X-objections were filed by the applicant.

MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015

9. Heard the submission of the learned Standing Counsel for

appellants as well as learned counsel for the Respondents.

10. The main contention of the learned counsel for the appellant-

Insurance company is that there is no documentary evidence to show

that the applicant was the driver of the said car; the applicant was a

sleeping partner of a Rice mill and that Aw2-Orthopedic surgeon

examined the applicant clinically and had not given any treatment

and that no Doctor, who had given treatment to the applicant in NIMS

hospital, was examined to support his contention and that AW2 is not

competent to issue disability certificate to the applicant and that no

doctor of private hospital who had given treatment to the applicant

initially, was examined and hence prayed to set-aside the order

passed by the learned Commissioner.

11. Per contra, the learned counsel appearing for respondent No.1

in his cross-objections petition stated that the learned Commissioner

had not fixed 100% disability and had not awarded interest @ 12% per

annum from the date of accident to till the date of realization and

prayed to award just compensation with interest @ 12%n per annum.

12. Now the points that emerge for consideration are:-

(i) Whether the opposite party nos.1 & 2 are liable to pay the said compensation?

(ii) Whether the applicant is eligible for 100% disability

(ii) Whether the applicant can be awarded interest @ 12% P.A,.

from the date of accident to till date of realization?

MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015

Points (i) & (ii):-

13. It is pertinent to note that as per Ex.B2-Certified copy extract of

driving license register and Ex.A10- copy of driving license, the

applicant is having valid driving license. Exs.A2 to A7 shows that the

applicant was admitted in the hospital and underwent surgery and

Ex.A11 shows the discharge summary of the applicant. The evidence

of AW2, who is an orthopedic surgeon, stated that he subjected the

applicant to clinical and physical examination and assessed the loss

of disability @ 65% and loss of earning capacity as 65% which

evidence is unrebutted by the opposite party No.2-Insurance

company. As per the evidence of AW2 and upon perusal of Exs.A4 to

A11 and Ex.A11-Disability certificate, this Court finds that the

applicant has suffered physical disability during the course of his

employment and that the Commissioner has rightly considered the

percentage of disability of the applicant for which the interference of

this Court is not necessary.

14. It is also pertinent to note that RW1, who is an employee of

opposite party No.2, admitted in his evidence that Ex.B7 does not

show that the applicant had purchased the car in question and that

the opposite party No.1 is the owner of the said car vide Exs.A8 & A9.

RW4, who is opposite party No.1, deposed in her evidence the

applicant was driving the car at the time of accident and that she had

not sold the car to the applicant. RW5, who is the Inspector of

MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015

Income Tax Department, deposed in his evidence that Ex.B7-copy of

Income Tax returns does not show that the applicant is working

partner or sleeping partner in the Rice mill.

15. Having gone through the entire evidence which is available on

record and the documents marked, this Court does not feel to

interfere with the findings given by the Commissioner. Therefore, the

learned Commissioner, after considering all the aspects, awarded

reasonable compensation. Hence, both the opposite party's 1 & 2 are

liable to pay the compensation awarded by the Commissioner.

Therefore, point Nos.1 & 2 are answered accordingly.

Point No.iii

16. In the decision of the Hon'ble Supreme Court in P. Meenaraj v.

P. Adigurusamy 1, the Hon'ble Apex Court held as follows:

"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident.

In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."

1 Civil Appeal No 209 of 2022, decided on 6 January 2022

MGP,J CMA.637 of 2013 along with cross objections SR.15743 of 2015

17. In view of the principle laid down in the above said case, it is

evident that the applicant is entitled for interest at 12% per annum on

the compensation amount from the date of accident till date of

deposit. Hence, this Court is inclined to award interest at 12% per

annum on the compensation amount from the date of accident till the

date of deposit.

18. In the result, C.M.A.No.637 of 2013 filed by the appellant-

Insurance Company is dismissed and the Cross-Objections petition

filed by the applicant vide SR.No.15743 of 2015 is allowed as per the

judgment of the Hon'ble Apex Court (referred supra). There shall be