Telangana High Court
Cholamandalam Ms. General Insurance ... vs Sri Kattimani M.S.Mallikarjun , Raju ... on 18 December, 2023
HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
CIVL MISCELLANEOUS APPEAL No.214 OF 2013
JUDGMENT:
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1. Aggrieved by the quantum of compensation awarded in
W.C.No.60 of 2011, dated 28.12.2012, on the file of the Court of
Commissioner for Employees Compensation and Assistant
Commissioner of Labour-I, Hyderabad (hereinafter be referred
as the Commissioner), the present appeal is filed by the opposite
party No.2-Insurance Company to set-aside the order of the
learned Commissioner.
2. The brief facts of the case are that the applicant was
employed by opposite party No.1 as Cleaner on his Tanker
bearing No.GJ 15X 8377 and has received injuries in an
accident that occurred on 20.03.2011 during the course and out
of employment and opposite party No.2 is the insurer of the said
tanker. On 20.03.2011, while the applicant was on duty as
Cleaner on the said tanker along with the driver of the tanker
and while they were proceeding on the tanker from Ballari to
Chattisgarh and when the tanker crossed Makthal Town, it was
stopped in front of Kachwer Sivar and the applicant was
standing in front of the said tanker. At that time, one Auto,
which was driven by its driver in a rash and negligent manner
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at a high speed, dashed the applicant, due to which he
sustained fracture of left leg besides multiple injuries all over
the body. Immediately, he was shifted to Osmania General
Hospital, Hyderabad. He further contended that he was aged 29
years and was getting Rs.5,000/- per month as salary and
Rs.50/ as batta and as the accident occurred during the course
and out of employment, he claimed compensation of
Rs.6,00,000/-. Based on the complaint, the P.S.Makthal
registered a case in Crime No.42 of 2011 under Section 337 of
IPC.
3. Opposite party No.1 remained exparte. Opposite party
No.2 denied averments of the claim application, age, wage,
employment of the applicant, manner of accident and also
stated that the compensation claimed is excess and exorbitant
and that the driver is not having valid driving license and hence
the Insurance Company is not liable to pay the said
compensation.
4. The applicant was examined as AW1 before the
Commissioner and also got examined AW2 & AW3 and marked
Exs.A1 to A13 on their behalf.
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5. On behalf of the opposite party No.2, none were
examined. However, Ex.B1-Insurance policy was marked with
the consent of learned counsel for applicant.
6. The Commissioner, after considering the entire evidence
and documents filed by both sides, has awarded compensation
of Rs.4,67,727/- with interest @12%.
7. Aggrieved by the same, the appellant-Insurance Company
filed the present appeal.
8. Heard both sides.
9. The main contention of the learned counsel for the
appellant-Insurance Company is that the Commissioner,
without considering the fact that AW3-Orthopaedic Surgeon,
who has not treated the applicant, has awarded lump sum
amount and also assessed the disability as 50% and loss of
earning capacity as 80% and the Commissioner has taken the
loss of earning capacity as 70%. Therefore, prayed to allow the
appeal by setting aside the order of the learned Commissioner.
10. Per contra, learned counsel for the respondent contended
that the learned Commissioner, after considering the entire
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evidence, has awarded just and reasonable compensation for
which the interference of this Court is unwarranted.
11. Now the points that emerge for determination are,
(i) Whether the applicant is entitled to receive the
compensation awarded by the learned Commissioner?
(ii)Whether the Insurance Company is liable to pay the said
compensation?
POINTS:-
12. This Court has perused the entire evidence and
documents filed by the applicant as well as Insurance Company.
The applicant as AW1 has reiterated the contents of the claim
application, deposed about the manner of accident and also
injuries sustained by him. In order to prove the same, got
examined AW2, who is working as an Accountant in Mahesh
Hospital, Himayathnagar and AW3, who is an orthopaedic
surgeon. In his evidence, AW3 has categorically stated that on
09.08.2011, the applicant has approached him and he has
examined him clinically and gone through the medical record
and also x-ray and submitted that the applicant sustained
Grade-II both bones segmental and fracture of left femur for
which K-nailing was done with SSG. He also noticed that the
applicant developed severe stiffness of left knee due to which the
applicant cannot sit and squat and cannot do heavy work and
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as a cleaner, he cannot work. He stated that he estimated the
percentage of disability as 50% as per the Kessler's guidelines
and loss of earning capacity as 80% and issued Ex.A6-Disability
certificate.
13. It is pertinent to state that there is no dispute regarding
the accident and injuries sustained by the applicant in the
accident and the case was registered under Ex.A1-FIR and the
injured applicant has taken treatment as per Ex.A2-copy of
MLC issued by Govt.Hospital, Ex.A3- Case sheet of Osmania
General Hospital, Ex.A5-Discharge Summary & Ex.A4-charge
sheet discloses that the police, after investigation, laid charge
sheet against the driver of the crime vehicle and Ex.A6-
Disability Certificate issued by AW3 assessing the disability @
50% and earning capacity @ 80% and Ex.A8-RC of the vehicle
discloses that opposite party No.1 is the owner.
14. Admittedly, the applicant was working as cleaner of the
tanker. Therefore the learned Commissioner, after considering
the age and income of the applicant, fixed minimum rates of
wages as per G.O.Ms.No.83, dated 04.12.2006 and has awarded
reasonable compensation and in fact, the disability is assessed
at 50% and earning capacity at 80% by the Doctor/AW3.
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However, the Tribunal has taken only 70% as loss of earning
capacity. Hence, the contention of the learned Standing
Counsel for Insurance Company that the Commissioner has
awarded lumpsum amount is unsustainable.
15. Under these circumstances, this Court is of the
considered opinion that the learned Commissioner has rightly
discussed all the aspects and awarded compensation for which
this Court do not find any reason to interfere with the same.
Hence, the appeal is devoid of merits and is liable to be
dismissed.
16. In the result, the Appeal is dismissed without costs.
17. Miscellaneous petitions pending, if any, shall stand
closed.
_____________________________
JUSTICE M.G.PRIYADARSINI
Dt.18.12.2023
ysk
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HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
CIVL MISCELLANEOUS APPEAL No.214 OF 2013
Dt.18.12.2023
ysk
