Telangana High Court

Hdfc Ergo General Ins Co Ltd., ... vs B Laxmamma, Mahabubnagar Dist And ... on 11 October, 2023

Bench: M.G.Priyadarsini

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

 CIVIL MISCELLANEOUS APPEAL Nos. 125 and 136 of 2016


COMMON JUDGMENT:

       These two appeals are being disposed of by this common

judgment since both the C.M.A's are filed by the Insurance

Companies challenging the quantum of compensation, are

directed against the very same order and decree, dated

14.12.2015

made in W.C.Case No. 65 of 2014 on the file of the

Commissioner for Employees' Compensation and Deputy

Commissioner of Labour-I, Hyderabad (for short "the

Commissioner").

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

be referred as per their array before the Commissioner.

3. The brief facts of the case are that the applicant has filed

an application under the provisions of Employees'

Compensation Act, 1923 (for short 'the Act') claiming

compensation of Rs.8,00,000/- for the injuries sustained by her

in the accident that occurred on 08.01.2014. It is stated that on

the fateful day, upon instructions of opposite party No. 1,

employer, the applicant was proceeding as labourer on the

tractor and trailer bearing Nos. AP 22M 9902 and AP 22M 2357

from Achampet to Thummanpet for loading and unloading 2 MGP,J CMA_125 & 136_2016

gravel which is used for roof top of house. When the said tractor

and trailer reached near Mahadevpur gate, the driver of the said

tractor and trailer drove the vehicle in a rash and negligent

manner at high speed and lost control over the vehicle, due to

which, the said tractor and trailer turned turtle. As a result, the

applicant sustained grievous head injury with facial brasions,

fracture of left iliac wing, fracture of right scapula, fracture of

left tibial condyle and other multiple injuries all over the body.

Immediately, she was shifted to Government Hospital,

Achampet and later shifted Viswas Hospital, Hyderabad, for

better treatment. Based on the complaint, the Police, Balmoor

Police Station, registered a case in Crime No. 2 of 2014 under

Section 304(A) and 337 of IPC. According to the applicant, she

was hale and healthy, aged about 32 years and earning wages of

Rs.8,000/- per month and batta of Rs.50/- per day as labourer

under the employment of opposite party Nos.1 and 3 and used

to contribute her entire earnings for the welfare of the family.

Due to the accident, she suffered permanent disability and lost

her earning capacity. Hence, the applicant has filed the

application claiming compensation of Rs.8,00,000/- against the

opposite party Nos.1 to 4, who are jointly and severally liable to

pay the compensation.

                                  3                             MGP,J
                                                  CMA_125 & 136_2016

4. Before the Commissioner, the opposite party Nos. 1 and 3

remained ex parties and whereas, the opposite party Nos. 2

and 4, appellants herein, filed counter denying the averments

of the application such as employee-employer relationship,

salary, age of the applicant and manner of accident. He further

contended that unless and until it is proved that the applicant

sustained injuries during the course of her employment and the

driver of the said tractor and trailer was having valid and

effective driving licence, the opposite party Nos. 2 and 4,

Insurance Companies are not liable to pay the compensation. It

is lastly contended that claim is excessive and exorbitant and

prayed to dismiss the application.

5. On behalf of the applicants, AWs. 1 to 3 were examined

and Exs.A.1 to A.12 were marked. Ex.A.1 is the certified copy of

FIR, Ex.A.2 is the certified copy of MLC, Ex.A.3 is the certified

copy of charge sheet, Ex.A.4 is the discharge summary, Ex.A.5

is the medical bill, Ex.A.6 is the disability certificate, Ex.A.7 is

the copy of RC of the tractor, Ex.A.8 is the copy of RC of the

trailer, Ex.A.9 is the copy of driving licence of the driver,

Ex.A.10 is the copy of insurance policy of tractor, Ex.A.11 is the

copy of insurance policy of trailer and Ex.A.12 is the X-ray

films. On behalf of opposite party Nos.2 and 4, RWs.1 and 2

were examined and Exs.B.1 to B.4 were marked. Ex.B.1 is the 4 MGP,J CMA_125 & 136_2016

true copy of insurance policy issued in respect of tractor bearing

No. AP 22M 9902 in favour of opposite party No. 1, Ex.B.2 is the

copy of insurance policy, Ex.B.3 is the proceedings of RTA,

Mahabubnagar, Ex.B.4 is the copy of registration certificate. On

behalf of Authority, Ex.X.1, Authorization letter issued in favour

of AW. 3 and Ex.X.2, IP final bill issued by Viswas Hospitals,

Karmanghat, Hyderabad, were marked.

6. The Commissioner after considering the evidence on

record, both oral and documentary, by determining the wages of

applicant as Rs.6,602/- per month, loss of earning capacity as

70%, by applying the factor '197.03' for the age of applicant

being 35 years, has awarded compensation of Rs.5,79,068/-.

7. Aggrieved by the compensation awarded by the

Commissioner, the opposite party Nos. 2 and 4/Insurance

Companies have filed the present appeal to set aside the

impugned order.

8. Heard both sides and perused the record.

9. The main contention of learned Standing Counsel for the

opposite party Nos. 2 and 4/Insurance Companies is that

though the insurance policy under Exs.B.1 and B.2 is

subsisting as on the date of the accident, the policy does not 5 MGP,J CMA_125 & 136_2016

cover the risk of the applicant, as no additional premium was

paid by the opposite party Nos. 1 and 3 to cover the risk of the

applicant and prayed to dismiss the application and prayed to

dismiss the application against them.

10. On the other hand, learned counsel for the applicant

sought to sustain the impugned order of the Commissioner

contending that considering all aspects including the age and

avocation of the applicant, the Commissioner has awarded

reasonable compensation and the same needs no interference

by this Court.

11. In view of the rival contentions, this Court has perused

the entire record and found that the applicant herself was

examined as AW. 1 and reiterated the averments of the

application in her chief examination. She deposed that the she

working as labourer under the employment of opposite party

Nos. 1 and 3, employer and sustained injuries during and in the

course of her employment with opposite party Nos. 1 and 3.

Though AW. 1 was cross examined at length, nothing adverse

was elicited to discredit her evidence. In support of her claim,

the applicant got examined AW. 2, Orthopaedic Surgeon. AW. 2

in his chief examination, deposed that he examined the

applicant clinically and radiologically and found that the 6 MGP,J CMA_125 & 136_2016

applicant sustained grievous head injury with facial abrasions,

fracture of left iliac wing, fracture of right scapula and fracture

of left tibial condyle and developed stiffness of left shoulder and

left knee with limping with painful movements. He further

deposed that he assessed the disability at 50% and loss of

earning capacity at 80% as the applicant could not perform her

duties as earlier with the same efficiency and issued disability

certificate under Ex.A.6. AW. 3, billing incharge, in her chief

examination, deposed that the applicant admitted as inpatient

in Viswas Hospital on 08.01.2014 and discharged on

25.01.2014. She also deposed that the applicant paid

Rs.30,000/- towards medical treatment and filed authorization

letter dated 07.01.2015 and final bill issued by the hospital

authorities under Exs.X.1 and X.2. Though AWs. 1 to 3 were

cross examined at length nothing was elicited to discredit their

statements.

12. The other contention of the learned Standing Counsel for

the Insurance Companies is that the Commissioner erred in

considering the evidence of the doctor, who is not competent to

issue disability certificate and never treated the applicant. On

the other hand, the learned counsel for the applicant contended

that the Commissioner erred in not considering the disability of

applicant at 70%. Admittedly the applicant met with an 7 MGP,J CMA_125 & 136_2016

accident and also sustained grievous injuries as evident from

Exs.A.4 and A.6. Therefore, it is irrelevant as to who has

treated the applicant. Moreover, in Raj Kumar v. Ajay Kumar 1

the Honourable Supreme Court held as under:

"13. We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

13. In T.J.Parameshwarappa v. The Branch Manager, New

India Assurance Company Limited and others 2, the

Honourable Supreme Court held as follows:

"The doctor who treated an injured claimant or who examined him subsequently to assess the extent

1 (2011) 1 SCC 343 2 Civil Appeal Nos.8598-8599 of 2022 (arising out of Special Leave Petition (C)

Nos.11730-11731 of 2021 decided on 18.11.2022 8 MGP,J CMA_125 & 136_2016

of his permanent disability can give evidence only in regard to the extent of permanent disability."

14. In view of the principle laid down in the above said

authorities, it is not necessary that the doctor, who has treated

the injured, has to give evidence with regard to disability of the

injured, however, the doctor, who has examined the applicant

subsequent to the accident can also depose about the disability

of the injured. In the case on hand, AW. 2 can be considered as

competent medical officer to assess the disability, as he is none

other than Orthopaedic Surgeon. In such circumstances and by

considering the evidence of AW. 1 corroborated by the evidence

of AWs. 2 and 3 coupled with the documentary evidence in the

form of Exs.A.1 and A.2, the disability certificate under Ex.A.6

can certainly be taken into consideration, though the said

certificate was not issued by competent Medical Board. Hence,

the above contention of the learned counsel for the opposite

party Nos. 2 and 4 that the Commissioner erred in considering

the evidence of AW. 2, is unsustainable.

15. The main contention of the learned Standing Counsel for

the Insurance Company is that though the insurance policy

under Exs.B.1 and B.2 is subsisting as on the date of the

accident, the policy does not cover the risk of the applicant as

no additional premium was paid by the opposite party Nos. 1 9 MGP,J CMA_125 & 136_2016

and 3 and thus, opposite party Nos. 2 and 4 are not entitled to

pay any compensation. In support of such contention, the

opposite party Nos. 2 and 4 filed Ex.B.1, copy of insurance

policy, which clearly discloses that the said tractor was insured

vide policy bearing No. 2316 2005 1851 4800 000 valid from

24.05.2013 to 23.05.2014 and premium of Rs.1,750/- was paid

towards basic third party risks. Ex.B.2, copy of insurance

policy, clearly discloses that the said trailer was insured vide

policy bearing No. 0511043113P101917709 valid from

25.06.2013 to 24.06.2014 and premium of Rs.1,023/- was paid

towards basic third party risks. On behalf of opposite party

No. 2, its senior manager, examined as RW. 1. RW. 1 in his

cross examination, he admitted that the on the date of accident,

the policy of the said tractor was in force. He also admitted that

the said tractor was attached to the said trailer as on the date of

accident and the opposite party No. 2 issued the package policy

for the said tractor. On behalf of opposite party No. 4, its

administrate officer, was examined as RW. 2. RW. 2 in his cross

examination, admitted that the opposite party No. 4 collected

the premium for the said trailer. He also admitted that the

policy was in force as on the date of accident. However, except

stating that the policy does not cover the risk of the applicant, 10 MGP,J CMA_125 & 136_2016

the opposite party Nos. 2 and 4 has not evinced any cogent

evidence to prove the same.

16. In Oriental Insurance Company Limited v. Meena

Variyal and others 3, the Honourable Supreme Court observed

as under:

"Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods."

17. In National Insurance Company Limited v. Prembai

Patel and others 4, the Honourable Supreme Court held as

under:



3 (2007) 5 SCC 428
                                          11                                 MGP,J
                                                               CMA_125 & 136_2016

"15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act."

18. In view of the above discussion and considering the

principle laid down in the above said authorities and since the

applicant is not a gratuitous passenger and as the applicant is

an employee rendering her services to the opposite party Nos. 1

and 3 under employee-employer relationship, the contention of

the learned Standing Counsel for the opposite party Nos. 2 and

4 that the policy does not cover the risk of the applicant, in view

of non-payment of additional premium, is unsustainable.

Therefore, the opposite party Nos. 2 and 4 are liable to

indemnify the opposite party Nos. 1 and 3, employers i.e., owner

of the said tractor and owner of said trailer .

19. Though several grounds were raised by the learned

Standing Counsel for the appellants/insurance companies, it

appears that most of such grounds are based on question of fact

but not on question of law, more particularly, when the opposite

4 AIR 2005 SC 2337 12 MGP,J CMA_125 & 136_2016

party Nos. 2 and 4 failed to establish that there are errors

apparent on the face of the record. The Honourable Supreme

Court in North East Karnataka Road Transport Corporation

v. Sujatha 5 held as under:

"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.

10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.

11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.

12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."

20. In view of the principle laid down in the above said

authority, it is clear that the above contention of the

(2019) 11 SCC 514 13 MGP,J CMA_125 & 136_2016

appellants/insurance companies is not based on a question of

law but it is purely a question of fact, which cannot be raised

before this Court as per Section 30 of the Workmen's

Compensation Act.

21. Under these circumstances, this Court is of the

considered opinion that the Commissioner, after considering all

the aspects, has rightly came to the conclusion in awarding

compensation to the applicant. Thus, this Court is not inclined

to interfere with the findings of the Commissioner and the Civil