Telangana High Court
United India Insurance Co Ltd., ... vs K Venkatesh, Secunderabad And Anr on 16 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.207 of 2014
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed
against order dated 20.11.2013 in W.C.No.77 of 2012 on the file of
the Commissioner for Employees' Compensation and Deputy
Commissioner of Labour-I, Hyderabad (hereinafter referred to as
'the Commissioner'). The said claim application was filed by the
applicant therein seeking compensation for injuries sustained by
him in an accident that occurred on 02.04.2012 and the same was
partly allowed by the Commissioner awarding compensation of
Rs.4,22,987/-. Aggrieved by the same, the present Civil
Miscellaneous Appeal is filed at the instance of opposite party
No.2 before the Commissioner i.e., the insurance company.
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 on piaggio pickup van auto bearing No.AP 29 U
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2961 under the employment of opposite party No.1. On
02.04.2012, the applicant was on duty as driver on the said auto
and that he was proceeding from Ibhrahimpatnam to Hyderabad
side. While so, at about 22:00 hours, when the auto reached near
Brahamanapally cross road, one tractor bearing No.AP 28 E 8703,
which was being driven in high speed in rash and negligent
manner by its driver, lost control and dashed the auto of the
applicant. Due to which, accident occurred and the applicant
sustained grievous injuries i.e., Grade II compound fracture both
bones left leg and other injuries all over the body. Immediately,
the applicant was shifted to Nikhil Hospital, Hyderabad, and from
there he was shifted to Srestha Orange Hospital, wherein he
underwent treatment as inpatient. The applicant underwent
major operation and steel rods were inserted. The applicant was
unable to move and could not do any work due to the accident
and thereby, he suffered total and permanent disability. With
regard to the accident, a case was registered in Crime No.265 of
2012 on the file of the Police Station Vanasthalipuram,
Hyderabad.
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4. It is further the case of the applicant that he was aged 26
years as on the date of the accident and that he was being paid an
amount of Rs.6,000/- per month towards wages and Rs.100/- per
day towards batha. Further, the accident occurred during the
course and out of his employment under opposite party No.1. The
auto involved in the accident was owned by opposite party No.1
and insured with opposite party No.2. Hence, the present claim
application is filed seeking compensation of Rs.6,00,000/-.
5. Opposite party No.1 was set ex parte. Opposite party No.2
filed its counter denying the averments of the claim application
such as age, wages, manner of the accident, employee and
employer relationship of the applicant and opposite party No.1.
Further, as the compensation claimed was excess and exorbitant,
opposite party No.2 prayed to dismiss the claim application.
6. In support of his case, the applicant got examined himself as
A.W.1 and got examined A.W.2 and got marked Exs.A-1 to A-12.
Opposite party No.2 got examined R.W.1 and Exs.B-1 and B-2
were got marked.
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7. On the basis of the above pleadings and evidence, the
Commissioner framed the following issues:
"1. Whether the applicant sustained injuries in the accident on
02.04.2012 that arose out of and in the course of employment
under the employment of the 1st opp.party?
2. If yes, what is the percentage of disability and consequent
loss of earning capacity suffered by the applicant?
3. Who are liable to pay compensation to the applicant? And;
4. What is the amount of compensation entitled by the
applicant?"
8. After considering the evidence and documents filed by both
sides, the Commissioner awarded an amount of Rs.4,22,987/-
towards compensation to the applicant. Aggrieved by the same,
the present appeal is filed by opposite party No.2.
9. Heard both sides.
10. The main contention of the learned counsel for the
appellant/opposite party No.2 is that the Commissioner has
awarded huge amount towards compensation and also for the
injuries which are non-schedule injuries. Further, the loss of
earning capacity is also determined on higher side. It is also
contended that the applicant got examined A.W.2-doctor, who did
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not treat the applicant. Hence, prayed to allow the appeal and set
aside the impugned order passed by the Commissioner.
11. Per contra, the learned counsel for respondent
No.1/applicant contended that the Commissioner after
considering all the aspects has awarded reasonable compensation
and interference of this Court is unnecessary. Hence, prayed to
dismiss the appeal.
12. Now, the point for determination is as follows:
"Whether the applicant is entitled for the compensation
as granted by the Commissioner?"
Point:-
13. This Court has perused the entire evidence and documents
placed on record by both the parties. The applicant got examined
himself as A.W.1 reiterating the contents of the claim application
such as manner of the accident and also injures sustained by
him. Though, A.W.1 was cross-examined, nothing contrary was
elicited in the same. In order to prove injuries sustained by the
applicant, he got examined A.W.2, who is Orthopedic Surgeon.
A.W.2 deposed that on 06.09.2013, he examined the applicant
and found Grade-II compound fracture of both bones left leg. The
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applicant was treated in Nikhil Hospital and Sreshta Orange
Hospitals with ilizaror ring fixation in left leg and wound
debridement was done. He further deposed that he examined the
applicant both clinically and radiologically and has gone through
all the previous medical records. He opined that the applicant
developed stiffness and limping while walking and because of the
said problems, the applicant cannot sit, squat and cannot drive
the vehicle. A.W.2 estimated the percentage of permanent
disability at 45% basing on the Kessler's guidelines and loss of
earning capacity at 70% and issued disability certificate under
Ex.A-5. In the cross-examination, he admitted that immediately
after the accident, he did not treat the applicant and also admitted
that after 18 months of discharge, the disability certificate was
issued by him. He denied the suggestion that the injuries of the
applicant were healed and the applicant is attending his driving
duties. He admitted that he is not member of medical board.
14. On behalf of opposite party No.2, R.W.1, who is
Administrative Officer of opposite party No.2 was examined and
got marked Exs.B-1-copy of insurance policy and B-2-photostat
copy of driving license extract. R.W.1 deposed that the driver of
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the vehicle must hold a valid driving license with transport
endorsement and in the present case, there is no such
endorsement, as such, opposite party No.2 is not liable to pay
compensation. In the cross-examination, R.W.1 admitted that the
insurance policy was valid and was in force as on the date of the
accident. He also admitted that premium was paid by opposite
party No.1 to cover the risk of the driver of the vehicle. He denied
that the applicant was having valid and effective driving license as
on the date of the accident. However, he accepted that as per
Ex.B-2 the driving license of the applicant is valid for non-
transport vehicle.
15. Apart from the evidence of the A.W.2, the applicant also
placed reliance on Exs.A-1 to A-12. A perusal of Ex.A-1 shows
that the Vanasthalipuram Police have registered case in Crime
No.265 of 2012 and took up investigation and laid charge sheet
under Ex.A-2. Ex.A-3 is MLC issued by Nikhil hospital, Ex.A-4 is
discharge summary of Nikhil Hospital, Ex.A-5 is discharge bill of
Nikhil Hospital for an amount of Rs.12,000/-, Ex.A-6 is discharge
summary of Sreshta Orange Hospital and Ex.A-12 is X-ray. All
these documents clearly disclose the treatment underwent by the
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applicant. Ex.A-7 is disability certificate issued by A.W.2. Ex.A-8
is driving license of the applicant, Ex.A-9 is registration certificate
of auto, Ex.A-10 is copy of insurance policy and Ex.A-11 is fitness
certificate. These documents show that opposite party No.1 is
owner of the auto involved in the accident and the same was
insured under opposite party No.2. Therefore, there is no dispute
with regard to accident, injuries sustained by the applicant and
also treatment undergone by the applicant.
16. The main contention of the learned counsel for the
appellant/opposite party No.2 is that the evidence of A.W.2 cannot
be taken into consideration as he is not treating doctor of the
applicant at any point of time. Further, A.W.2 is not member of
the medical board, as such he is not competent to issue disability
certificate and the same cannot be taken into consideration.
17. Admittedly, the applicant met with an accident and also
sustained grievous injuries. Therefore, it is irrelevant as to who
has treated the applicant. Moreover, in Raj Kumar v. Ajay
Kumar 1 the Hon'ble Supreme Court held as under:
1 (2011) 1 SCC 343
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"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."
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18. The Supreme Court in the case of T.J.Parameshwarappa v.
The Branch Manager, New India Assurance Company Limited
and others 2, held as follows:
"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 to
the extent of permanent disability."
19. In view of the principle laid down in the above said
decisions, 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, A.W.2 can be considered as
competent medical officer to assess the disability. In such
circumstances and by considering the evidence of A.W.1
corroborated with the evidence of A.W.2 coupled with the
documentary evidence in the form of Exs.A-1 and A-2, the
disability certificate under Ex.A-7 can certainly be taken into
consideration, though the said certificate was not issued by
competent Medical Board. Hence, the above contention of the
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
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learned counsel for the appellant/opposite party No.2 that the
learned Commissioner erred in considering the evidence of A.W.2,
is unsustainable.
20. It is pertinent to state that the police after thorough
investigation has laid charge sheet against the driver of the tractor
bearing No.AP 28 E 8703 and no charge sheet was filed against
the applicant, who was driving the auto involved in the accident.
Furthermore, except taking plea that the applicant was not having
valid driving license, opposite party No.2 has not adduced any
evidence by summoning Road Transport Authorities. Therefore,
the contention of the learned counsel for the appellant/opposite
party No.2 with regard to driving license of the applicant is
unsustainable.
21. Under these circumstances, this Court is of the considered
opinion that the Commissioner after considering the age, wages,
loss of earning capacity and all other aspects has rightly awarded
just and reasonable compensation and interference of this Court
is unwarranted. The appeal is devoid of merits and the same is
liable to be dismissed.
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22. In the result, the Civil Miscellaneous Appeal is dismissed
confirming the order dated 20.11.2013 in W.C.No.77 of 2012 on
the file of the Commissioner for Employees' Compensation and
Deputy Commissioner of Labour-I, Hyderabad. There shall be no
order as to costs. Miscellaneous applications, if any pending,
shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 16.02.2024
GVR
