M/S. National Insurance Company vs Md. Ghouse Moinoddin And Another
2023 Latest Caselaw 3711 Tel

      THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

            CIVIL MISCELLANEOUS APPEAL No.96 of 2011

JUDGMENT:

1. The present civil miscellaneous appeal has been directed against

order dated 01.01.2011 in W.C.No.89 of 2009 on the file of the

Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-I, Hyderabad. The said claim petition was

filed by respondent No.1 herein seeking compensation for injuries

sustained by him in an accident and the same was partly allowed

granting an amount of Rs.4,01,752/- towards compensation including

interest. Aggrieved by the same, the present civil miscellaneous

appeal is filed at the instance of the insurance company i.e., opposite

party No.2 before the Commissioner.

2. The appellant herein is opposite party No.2, respondent No.1

herein is applicant and respondent No.2 herein is opposite party No.1

before the Commissioner. For the sake of convenience, the parties are

hereinafter referred to as they were arrayed before the Commissioner.

3. The brief facts of the case of the applicant are that he was

working as driver for auto bearing No. AP 23 U 0592 under opposite

party No.1 and he was being paid an amount of Rs.4,000/- per month

towards wages and Rs.100/- per day towards batta. On 02.02.2009,

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at about 10:30 AM, he was proceeding in the said auto from

Masjidpally to Medchal and when the auto reached Athwelli, one car

bearing No. AP 28 AX 5062 driven in rash and negligent manner

dashed the auto. Due to the said accident, he sustained fracture of

head of third metatarsal and dislocation of fourth metatarsal

phalangeal joint along with other multiple injuries all over the body

and he was shifted to hospital for treatment. In this regard, crime

No.46 of 2009 was registered in Medchal Police Station. It is his case

that during the course and out of his employment he sustained

injuries in the said accident. He was 25 years old at the time of the

accident. The auto owned by opposite party No.1 was insured with

opposite party No.2 vide insurance policy bearing

No.55013/31/08/6300000554 valid from 25.07.2008 to 24.07.2009.

Hence, he filed the present claim petition seeking compensation of

Rs.5,00,000/- with interest from both the opposite parties.

4. In spite of service of notice, opposite party No.1 remained ex

parte. Opposite party No.2 filed his counter and contended that there

was no employee and employer relationship between the applicant and

opposite party No.1. They denied the occurrence of accident, injuries

sustained, wages paid to the applicant and the registration of crime

before Medchal Police Station. It is their further case that the

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applicant was not holding valid driving license at the time of the

accident. Accordingly, prayed to dismiss the claim petition.

5. In support of his case, the applicant got examined A.Ws.1 and 2

and got marked Exs.A-1 to A-7. Opposite parties did not adduce any

oral evidence, but opposite party No.2 got marked Exs.B-1 and B-2, in

support of its case.

6. After considering the pleadings and evidence on record, the

Commissioner held that the applicant has successfully proved his

case. Hence, the claim petition was partly allowed holding that both

the opposite parties were jointly and severally liable and granted an

amount of Rs.4,01,752/- towards compensation along with interest

payable to the applicant.

7. Heard, the learned counsel for the appellant/opposite party

No.2. None appeared and there is no representation for the

respondents herein.

8. Learned counsel for the appellant/opposite party No.2 i.e.,

the insurance company has contended that though, A.W.2 i.e.,

orthopedic surgeon after examining the applicant medically has

assessed physical disability at 50%, which is partial and

MGP,J CMA_96_2011

permanent disability and loss of earning capacity at 80%, the

Commissioner has taken the loss of earning capacity at 70%. The

said earning disability of 70% is on higher side. Therefore, she

prayed to allow the appeal by setting aside the impugned order.

9. Now, the point for determination is as follows:

"Whether the findings of the Commissioner determining the loss of earning disability of the applicant suffers from any irregularity?"

Point:-

10. This Court has perused the evidence of A.W.2 i.e., orthopedic

surgeon. He stated that he had conducted clinical and radiological

examination of the applicant on 05.04.2010. Further, he verified the

previous medical records of the applicant pertaining to Mediciti

Hospital, Shameerpet. He found that the applicant suffered with

fracture of third metatarsal, dislocation of fourth metatarsal phalangeal

joint; and dislocation of right knee and other multiple injuries all over

the body. He stated that the applicant developed unstable knee with

pain and because of the said problem, the applicant will not be able to

sit, squat and walk for long distances. The applicant will also not be

able to perform his duties as an auto driver. Hence, A.W.2 estimated

physical disability at 50%, which is partial and permanent disability

MGP,J CMA_96_2011

and loss of the earning capacity at 80%. He stated that the injuries are

grievous in nature and issued disability certificate under Ex.A-5.

11. During the course of cross-examination, A.W.2 has admitted that

he was not treating doctor of the applicant and at the time of his

examination, the fractures sustained by the applicant were healed. He

also stated that there was unstable knee joint due to internal

derangement of the concerned joint (Ligament of Ruptures) and the

same will never be normal. He stated that the knee braces will help for

walking and it prevents falling of the patient, but efficiency to walk will

come down due to the injuries. The applicant will also not be able to

walk, sit and squat normally as earlier. He denied that the applicant

could drive the vehicle as normal human being. The Commissioner

after considering all such aspects had taken the loss of earning

capacity at 70% and awarded an amount of Rs. 4,01,752/- towards

compensation along with interest.

12. Admittedly, the applicant was working as an auto driver under

employment of opposite party No.1 and he is aged about 25 years, at

the time of the accident. The injuries sustained by him are grievous in

nature and A.W.2-orthopedic surgeon after examining the applicant

determined the physical disability at 50%. The Commissioner

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considered the fact that the applicant being an auto driver has to

discharge his duty by swift movements of both upper and lower limbs,

which is not possible for the applicant with the disability, which is

caused due to injuries. Therefore, the Commissioner considered the

same and assessed the loss of earning capacity at 70%. The said

assessment is without any reasons and the same appears to be on

higher side. However, considering the fact that the applicant is an

auto driver and suffered grievous injuries, this Court is of the

considered view that the percentage of loss of earning capacity can be

reduced by 5% and fixed at 65%. Accordingly, the loss of earning

disability of the applicant due to the injuries sustained by him in the

accident is reduced from 70% to 65%.

13. Coming to other aspects, the Commissioner after rightly

considering all the evidence placed before him has given findings as to

wages, age, etc,. The interference of this Court into the said aspects is

unwarranted. After reduction of 5% on the earning disability, the

computation of compensation is as follows:

Rs.3996.75 X 60/100 X 65/100 X 216.91 = Rs. 3,38,105/-.

Thus, the applicant is entitled for Rs.3,38,105/-.

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14. The Commissioner has granted an amount of Rs.728/- towards

stamp fee and Rs.500/- towards advocate fee. Hence, the total amount

of compensation, which the applicant is entitled comes to

Rs. 3,39,333/-.

15. Coming to the interest, this Court feels that the interest granted

by the Commissioner is just and reasonable and the same needs no

interference by this Court.

16. In the result, the Civil Miscellaneous Appeal is partly allowed by

reducing the compensation from Rs.3,64,113/- to Rs.3,39,333/- and

the rest of the findings of the Commissioner in the impugned order are

confirmed. There shall be no order as to costs. Miscellaneous

applications pending, if any, shall stand closed.

______________________________ JUSTICE M.G.PRIYADARSINI

Date: 08.11.2023 GVR