The National Insurance Company ... vs Sri S. Sakeer And Another
2023 Latest Caselaw 1880 Tel

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

          Civil Miscellaneous Appeal No.991 OF 2011

JUDGMENT:

Aggrieved by the order passed by the learned

Commissioner for Workmen's compensation and Assistant

Commissioner of Labour-IV, Hyderabad in W.C. No.33 of 2010

dated 14.07.2011, the opposite party No.2-National Insurance

Company Limited has filed the present appeal.

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 as under.

The applicant has filed application against opposite party

Nos.1 and 2, who are owner and insurer of the lorry bearing No.

AP 29 T 3267 claiming compensation of Rs.5,00,000/- on

account of the injuries sustained by him in the accident that

occurred on 17.1.2010. According to the applicant, he is

working as a cleaner on the lorry bearing No. AP 29 T 3267

under the employment of opposite party No.1 on a monthly

wages of Rs.4,000/- and daily bata of Rs.50/-. On 17.1.2010

he was proceeding on the said lorry from Kurnool to Hyderabad

and at about 22-15 hours when the lorry reached K.G.N.Dhaba,

Jadcherla, the driver of the lorry drove it in a rash and negligent

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manner at high speed and dashed another lorry. As a result,

the applicant has sustained fracture of bilateral shaft femur

m/3 and other injuries all over the body and immediately after

the accident, the applicant was shifted to Government Hospital,

Badepally and after first aid, he was shifted to Osmania General

Hospital, Hyderabad, for better treatment, where he underwent

treatment as inpatient and underwent major operation. It is

further contended that during the course of employment and

out of his employment as a cleaner on the said lorry under the

employment of opposite party No.1, he has sustained injuries.

Based on the complaint, Police, Jadcherla registered a case in

crime No.17 of 2010. According to the applicant, he was aged

22 years as on the date of accident and was getting Rs.4,000/-

per month as a cleaner under opposite party No.1. Thus, the

opposite party Nos.1 and 2 being the owner and insurer of the

lorry, are jointly and severally liable to pay compensation to the

applicant.

4. Opposite party No.1 remained ex parte; Opposite party

No.2 filed counter denying the averments of the application, age

and avocation of the applicant, manner of accident and

employee-employer relationship between the applicant and

opposite party No.1. It is contended that the driver of the lorry

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is not having valid driving license as on the date of accident and

compensation claimed by the applicant is excessive and

exorbitant and therefore, prays to dismiss the application.

5. Before the Commissioner, on behalf of the applicant,

AWs.1 and 2 were examined and got marked Exs.A1 to A11. On

behalf of opposite party No.1, none were examined and no

document was marked. On behalf of opposite party No.2, no

witnesses were examined, however, copy of insurance policy was

marked as Ex.B1.

6. The Commissioner after considering the oral and

documentary evidence available on record, has awarded the

compensation of Rs.3,63,376/-. Aggrieved by the same, the

Insurance Company has preferred the present appeal.

7. Heard Smt.I.Maamu Vani, learned Standing Counsel for

the appellant-Insurance Company and Smt.Yasmini Seema,

learned counsel represented on behalf of Sri C.Vikram Chandra,

learned counsel for the applicant and perused the record.

8. The main contention of the learned Standing Counsel for

the appellant-Insurance Company is that the learned

Commissioner has awarded compensation of Rs.3,63,376/- by

taking into consideration the disability at 60% and loss of

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earning capacity at 75%, which is on higher side. Hence prays

to allow the appeal by setting aside the Order passed by the

learned Commissioner.

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

argued that after considering the evidence on record, the

learned Commissioner has rightly awarded the compensation to

the applicant. Hence prayed to dismiss the appeal.

10. Perused the evidence available on record. The applicant

as AW.1 has reiterated the contents of his application and

deposed about the manner of accident, injuries sustained by

him and the wages received by him from the opposite party

No.1. In order to prove the injuries sustained by him in the

accident, he got examined Dr.G.Subash Rao, Orthopaedic

Surgeon as AW.2. AW.2 deposed that he examined the

applicant on 4.2.2011 and found that he sustained fracture of

shaft of both legs M/3rd and he was treated in the Government

Hospital, Badepally and later at Osmania General Hospital,

Hyderabad, and operated on 28.1.2010 by way of inter locking

nailing. He further stated that the applicant developed stiffness

of both knee with painful movements and painful limping. He

further stated that with the above disability, the applicant

cannot sit and squat on the ground. He further examined the

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applicant clinically and radiologically and also verified the old

medical records of the applicant and assessed the partial and

permanent physical disability at 60% and loss of earning

capacity at 100% and issued Ex.A5 disability certificate. He

also stated that the applicant cannot work as a cleaner. In the

cross-examination AW.2 accepted that he has not treated the

applicant at any point of time and that as per the wound

certificate, the applicant has sustained only lacerated injuries

and in the above certificate, there are no fracture injuries. As

per Ex.A4 discharge certificate, there is no disability sustained

by the applicant. He denied the other suggestions that the

applicant has not suffered any disability and he has assessed

the disability on higher side. He also stated in his cross-

examination that the applicant developed limping and stiffness

of both knee joints resulting his inability to sit and squat.

11. It is pertinent to state that though the learned Standing

Counsel for the appellant-Insurance Company argued at length

on various aspects, but the Insurance Company has not

adduced any contra evidence nor examined any witness nor

filed any document.

12. Now coming to the disability assessed by AW.2,

admittedly, the applicant is working as a cleaner in the lorry of

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opposite party No.1 at the time of accident. Therefore, the work

of a cleaner on the lorry is very high and also assisting the

driver while travelling, is not easy with the disability sustained

by him in the accident. Further the Orthopedic Surgeon who is

a competent person to assess the disability has clearly stated

that he assessed the disability sustained by AW.1 as partial and

permanent physical disability at 60% and loss of earning

capacity at 100%.

13. The contention of the learned counsel for the appellant is

that the learned Commissioner erred in taking the loss of

earning capacity as 75% when the disability was only 60%. The

Honourable Supreme Court in Jithendran v. The New India

Assurance Company Limited and another 1, held as under:

"13. The extent of economic loss arising from a disability may not be measured in proportions to the extent of permanent disability. This aspect was noticed in Raj Kumar Vs. Ajay Kumar and Anr.4, where Justice R.V. Raveendran made the following apt observations:

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of

Civil Appeal No.6494 of 2021 (Arising out of SLP(C) No.13213 OF 2019) decided on 27.10.2021

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economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.

Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced shows 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."

14. In view of the principle laid down above, it is clear that

extent of economic loss arising from a disability may not be

measured in proportions to the extent of permanent disability.

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Moreover, it is observed that AW2 i.e., the doctor has assessed

the partial permanent disability at 60% and loss of earning

capacity at 100%. However, the learned Commissioner by

considering the nature of injuries sustained by the applicant

and the nature of the duties discharged by the applicant, has

observed that the applicant had bilateral fracture shaft femur

M/3rd and he developed stiffness of both knee with painful

movements and painful limping, as such it was not possible for

the applicant to work as cleaner on the vehicle with same

efficiency as he was doing on the date of the accident. Thus,

the learned Commissioner, has rightly fixed the percentage of

loss of earning capacity of the applicant at 75%. Therefore, this

Court is not inclined to interfere with the findings of the learned

Commissioner, so far as percentage of loss of earning capacity

of the applicant.

15. Coming to the quantum of compensation, as stated above,

the learned Commissioner has taken into consideration the loss

of earning capacity at 75%. Though the applicant has stated

that he used to earn Rs.4,000/- per month, as no documentary

proof is filed by the applicant to prove his wages and opposite

party No.1 has not entered into the witness box and no salary

certificate is filed, the learned Commissioner has taken the

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income of the applicant as Rs.3,647.75 considering the

minimum wages and by applying relevant factor of '221.37',

awarded Rs.3,63,376/- towards compensation. Further the

learned Commissioner also awarded an amount of Rs.726/-

towards stamp fee and Rs.500/- towards Advocate fee. Thus in

all, the learned Commissioner has awarded Rs.3,64,602/- to the

applicant, which is just and reasonable. Therefore, this Court

does not find any ground to interfere with the well reasoned

order passed by the learned Commissioner. Hence, there are no

merits in this Civil Miscellaneous Appeal and it is liable to be

dismissed.

16. Accordingly, the Civil Miscellaneous Appeal is dismissed.

There shall be no order as to costs.

Pending Miscellaneous applications, if any, shall stand

closed.

______________________________ JUSTICE M.G.PRIYADARSINI 01.09.2023 PGP