Telangana High Court

United India Insurance Co Ltd., vs B.Mahesh And Another on 2 August, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

       CIVIL MISCELLANEOUS APPEAL No.641 of 2015


JUDGMENT:

This Civil Miscellaneous Appeal is filed by the appellant - Insurance

Company - opposite party No.2 (for short "O.P.2") aggrieved by the order dated

13.07.2015 passed in W.C.No.143 of 2013 by the Commissioner for

Employee's Compensation - cum - Deputy Commissioner of Labor-I,

Hyderabad.

2. The respondent No.1 was the applicant workman, who was employed as a

driver by respondent No.2 - opposite party No.1 (for short "O.P.1"). The

respondent No.1 filed an application claiming compensation of Rs.5.00 lakhs

against O.Ps.1 and 2 for the injuries sustained by him in an accident that

occurred on 28.04.2013 alleged to be during the course of and out of his

employment with O.P.1. The applicant stated that on 27.04.2013 as per the

instructions of O.P.1, he along with passengers started from Suryapet and was

proceeding towards Tirupati, on the way at about 04:30 AM on 28.04.2013,

when they reached near Maipadu Bridge situated at the outskirts of Nellore

Town on National Highway No.5, the applicant was overtaking a lorry. The

driver of the lorry, who was proceeding in front of the car of the applicant going

in high speed applied sudden brake, due to which the car of the applicant hit the

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lorry from its behind and the applicant sustained fracture injuries to his left leg,

left elbow and other multiple injuries all over the body. Immediately, he was

shifted to Government Hospital, Nellore and from there to Narayana General

Hospital, Nellore and later he was shifted to Area Hospital, Suryapet, where he

was treated as in-patient and surgeries were conducted on him. The applicant

stated that he became permanently disabled due to the said accident and lost his

earning capacity. PS Nellore Rural registered a case in Crime No.173 of 2013

under Section 337 and 338 of IPC. He stated that he was paid a wage of

Rs.6,500/- per month and batta of Rs.100/- per day by O.P.1 and that he was

aged 22 years as on the date of accident.

3. O.P.1 filed counter admitting the employment of the applicant as driver,

the monthly wages as claimed by the applicant and that the accident occurred to

the applicant during the course of and out of his employment. But, he

contended that his Tavera Car was insured with O.P.2 and the said policy was

valid and subsisting. As such, the O.P.2 - Insurance Company alone was liable

to pay compensation to the applicant.

4. O.P.2 filed counter calling for strict proof of the petition averments along

with documentary evidence.

5. The applicant examined himself as AW.1 and got examined the

Orthopedic Surgeon, who issued the disability certificate as AW.2 and an eye-

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witness to the accident, who travelled in the same car as AW.3 and got marked

Exs.A1 to A7 on his behalf. O.P.1 was examined as RW.1. Exs.B1 and B2

were marked on his behalf. The Administrative Officer of the Insurance

Company - O.P.2 was examined as RW.2. Ex.B3, the copy of the insurance

policy was marked on their behalf.

6. On considering the oral and documentary evidence on record, the learned

Commissioner for Employee's Compensation - cum- Deputy Commissioner of

Labor - I, RTC 'X' Roads, Hyderabad held that the applicant was workman

within the meaning of the Workmen's Compensation Act (for short "the Act"),

1923. He worked as driver on the Tavera Car bearing No.AP-24-AT-7842

under the employment of O.P.1 and met with an accident on 28.04.2013 and

sustained injuries in the accident that arose out of and in the course of

employment.

7. Considering the evidence of AW.2, the Orthopedic Surgeon, the learned

Commissioner observed that as per Section 2(1)(i) of the Act, AW.2 was

competent to assess the physical disability of the applicant. AW.2 stated that

the applicant developed stiffness of left ankle and left elbow and because of the

said disabilities, he could not drive the vehicle and assessed the partial and

permanent disability as 50% and loss of earning capacity as 80%. The learned

Commissioner considering that it would not be possible to a person who

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suffered with such disabilities as noted in Ex.A4 (i.e. stiffness of left ankle and

left elbow) to work as a driver, had considered the loss of earning capacity of

the applicant as 70%.

8. Considering that the insurance policy was valid as on the date of accident

and covering the risk of the applicant - driver, the learned Commissioner held

both O.Ps.1 and 2 jointly and severally liable to pay compensation to the

applicant and by applying the minimum rates of wages for the persons

employed in Public Motor Transport had taken the basic wage as Rs.4,102/- for

the category of Light Vehicle Driver and the Variable Dearness Allowance (for

short "VDA") as Rs.2,880/- per month at the relevant time of accident and

considered the total wage of applicant as Rs.6,982/- per month and by

considering the age of the applicant as 22 years and assessing the loss of earning

capacity as 70%, assessed the compensation entitled by the applicant as

Rs.6,49,154/- and along with stamp fee and advocate fee directed O.Ps.1 and 2

to deposit an amount of Rs.6,51,952/- with interest @ 12 % per annum on the

amount of compensation awarded from 29.05.2013 till the date of realization.

9. Aggrieved by the said order of the learned Commissioner, the O.P.2 -

Insurance Company preferred this appeal.

10. Heard the learned counsel for the appellant - Insurance Company - O.P.2

and the learned counsel for the respondent No.1 - applicant.

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11. Learned counsel for the appellant contended that the learned

Commissioner erred in coming to the conclusion that the applicant sustained

injuries during the course of his employment and due to the said injuries, he

suffered with 70% loss of earning capacity. As AW.2, the Orthopedic Surgeon

assessed the disability of the applicant as 50%, the same might be taken into

consideration and prayed to modify the order passed by the learned

Commissioner.

12. Learned counsel for the respondent No.1 - applicant on the other hand

contended that an appeal from an order of the Commissioner could be

entertained only if there existed a substantial question of law. No substantial

question of law arose out of this matter and prayed to dismiss the appeal.

13. As observed by the Hon'ble Apex Court in Fulmati Dhramdev Yadav

and another v. New India Assurance Company Limited & another 1, as per

Section 30 of the Workmen's Compensation (Amendment) Act, 2009, by which

the word "workmen" has been substituted by "employees" and rechristened as

the Employees Compensation Act, 1923, an appeal shall lie to the High Court

only if there exists a substantial question of law.

2023 INSC 790

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14. The Hon'ble Apex Court further held that:

21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings.

15. The 2-Judge Bench of the Hon'ble Apex Court in North - East

Karnataka Road Transport Corporation v. Sujatha 2, held that:

"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."

16. The 2-Judge Bench of the Hon'ble Apex Court in Golla Rajamma &

Others v. Divisional Manager & Another 3, also observed that:

"Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has

(2019) 11 SCC 514

(2017) 1 SCC 45

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missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act."

17. Thus, the Commissioner is the last authority on the facts involved in the

case. No substantial question of law is raised by the appellant - Insurance

Company in the grounds of appeal and also no substantial of law is admitted by

this Court while admitting the appeal.. The contentions raised by the learned

counsel for the appellant - Insurance Company on the aspects of percentage of

disability or whether the insured vehicle was given on hire to the persons, who

travelled from Suryapet to Tirupati and with regard to the assessment of income

of the applicant are all questions of facts, which were answered by the learned

Commissioner. This Court also observes that the conclusions arrived at by the

learned Commissioner were a possible view extinguishing possibility of

perversity in findings. As the scope of the appeal is limited only to substantial

question of law and no perversity could be demonstrated by the learned counsel