Telangana High Court

Housekar Sainath vs Aslam Khan And Another on 20 February, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

        CIVIL MISCELLANEOUS APPEAL No.268 of 2014

JUDGMENT:

1. The Civil Miscellaneous Appeal is directed against order

dated 19.11.2012 in W.C.No.456 of 2003 (NF) on the file of the

Commissioner for Employees' Compensation-cum-Deputy

Commissioner of Labour, Nizamabad (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 16.08.2002 and the same was

partly allowed by the Commissioner granting compensation of

Rs.1,50,770/-. Dissatisfied with the same, the present Civil

Miscellaneous Appeal is filed at the instance of the applicant

before the Commissioner seeking enhancement of compensation

and grant of interest.

2. The appellant herein is applicant and respondents herein are

opposite parties 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 labour on lorry bearing No.ABT 1408 under the

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employment of opposite party No.1. On 16.08.2002, while the

applicant was traveling on the said lorry from Velpoor to

Nizamabad, after loading the sand along with other labourers, at

about 07:00 PM, when the lorry reached near crossing after

passing Adimamidipally village, the driver of the said lorry drove it

in high speed in rash and negligent manner and lost control over

the lorry dashed two pedestrians from back side and thereafter,

the lorry turned turtle went off the road and fell in a ditch. Due to

the said accident, the labourers, driver and cleaner of the said

lorry sustained multiple fractures and grievous injuries. The

applicant sustained fractures of right metatarsal bones, fracture of

ribs, multiple and grievous injuries on head and other parts of the

body. Immediately, the applicant and others were shifted to

Tirumala Hospital, Nizamabad, where the applicant took

treatment and incurred more than a sum of Rs.75,000/- towards

medical expenses, treatment and extra nourishment etc,. In this

regard, a case was registered in Crime No.124 of 2002 by Makloor

Police.

4. It is further the case of the applicant that the said accident

occurred during the course and out of his employment as labourer

under opposite party No.1. According to the applicant, he was

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aged about 30 years as on the date of the accident and he was

being paid an amount of Rs.5,000/- per month towards wages by

opposite party No.1. Opposite party No.1 being the owner and

opposite party No.2 being insurer of the lorry involved in the

accident are liable to pay compensation. Hence, the present claim

application is filed by the applicant seeking compensation of

Rs.3,00,000/- for the injuries sustained by him.

5. Opposite party No.1 filed his written statement and admitted

the employment of applicant under him. He also admitted that he

was owner of the lorry bearing No.ABT 1408 and stated that the

lorry was insured with opposite party No.2 under valid and

effective policy as on the date of the accident. He further

contended that he was paying an amount of Rs.3,500/- per month

towards wages to applicant, but not Rs.5,000/- as claimed by the

applicant. He also contended that the lorry involved in the

accident was insured with opposite party No.2, as such, if there is

any liability opposite party No.2 alone is liable to pay. Therefore,

prayed to dismiss case against him.

6. Opposite party No.2 filed its written statement denying the

averments of the claim application such as age, wages,

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employment of the applicant under opposite party No.1,

occurrence of the accident and also injuries sustained by the

applicant. It is also contended that the driver of the vehicle

involved in the accident was not having valid driving license as on

the date of the accident. Opposite party No.2 prayed to dismiss

the claim application as the compensation claimed by the

applicant is excess and exorbitant.

7. In support of his case, the applicant got examined himself as

A.W.1 and also examined A.W.2 and got marked Exs.A-1 to A-7.

No oral or documentary evidence was adduced by opposite party

No.1. On behalf of opposite party No.2, R.W.1 was examined and

Ex.B-1 was got marked.

8. On the basis of the above pleadings and evidence, the

Commissioner framed the following issues:

"1. Whether the injured/applicant Housekar Sainath met with an accident on 16.08.2002 during the course and out of his employment as Labour on the lorry bearing No.ABT 1408 under the employment of 1st opposite party and sustained injuries?

2. If yes, what is the percentage of the physical disability and consequent loss of earning capacity suffered by the applicant?

3. Who are liable to pay compensation? And

4. What is quantum of compensation entitled by the applicant?"

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9. After considering the evidence and documents filed by both

sides, the Commissioner awarded an amount of Rs.1,50,770/-

towards compensation to the applicant. Dissatisfied with the

same, the present appeal is filed seeking enhancement of

compensation by the applicant.

10. Heard, the learned counsel for the appellant and the learned

standing counsel for respondent No.2.

11. The main contention of the learned counsel for the

applicant/appellant is that the Commissioner erred in not

granting interest at 12% per annum from the date of accident on

the compensation amount. Hence, prayed to modify the impugned

order by allowing the appeal and granting interest.

12. Per contra, the learned counsel for respondent No.2/opposite

party No.2 i.e., the insurance company contended that the

Commissioner after considering all the aspects has awarded

reasonable compensation and interest and interference of this

Court is not necessary.

13. Now the point for determination is as follows:

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"Whether the findings of the Commissioner with regard to determination of interest suffer from any illegality?"

Point:

14. This Court has perused the entire evidence and material

placed on record. The applicant got examined himself as A.W.1

reiterating the contents of his claim application. Though, he was

cross-examined nothing contrary was elicited in the same. In

order to prove the injuries sustained by him, he got examined

A.W.2, who is an Orthopedic Surgeon. A.W.2 deposed that he

examined the applicant and also verified the previous medical

record and found mal-united fractures of right metatarsal bone

foot. He issued disability certificate by assessing the disability at

60% being partial and permanent in nature and determined the

loss of earning capacity at 60%. In the cross-examination, he

denied all the suggestions, which were put to him by opposite

party No.2.

15. Opposite party No.2 got examined its Senior Assistant as

R.W.1. R.W.1 reiterated the contents of the written statement.

The evidence of R.W.1 shows that opposite party No.1 got insured

the vehicle involved in the accident with them and the policy was

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valid and effective as on the date of accident. He stated that no

additional premium was paid to cover the risk of labourer by

opposite party No.1. He also stated that the lorry involved in the

accident was goods carrying vehicle and traveling of applicant in

the said vehicle is violation of terms of policy. In the cross-

examination, he denied the suggestion that opposite party No.2 is

liable to pay compensation to the labour.

16. The Commissioner after considering both oral and

documentary evidence placed on record by both the sides has

rightly came to the conclusion that the applicant was employed

under opposite party No.1 and the accident occurred during the

course and out of his employment. Based on the evidence of

A.W.2 and documentary evidence placed on record by the

applicant, the Commissioner rightly assessed the loss of earning

capacity at 60%. Further, as R.W.1 admitted that the policy was

in force as on the date of the accident, the Commissioner held that

both the opposite parties are jointly and severally liable to pay

compensation to the applicant.

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17. Coming to the quantum of compensation, the Commissioner

based on the documentary evidence on record has rightly

determined the age of the applicant as 30 years. Further, though,

the applicant claimed that he was being paid an amount of

Rs.5,000/- per month towards wages, as the applicant has not

adduced any cogent and convincing evidence, the Commissioner

has rightly taken minimum wages prevailing as on the date of

accident for computing the compensation. Hence, this Court is of

the considered opinion that the Commissioner has awarded just

and reasonable compensation. Therefore, interference of this

Court into the said aspect is unwarranted.

18. Insofar as rate of interest is concerned, it is apt to refer to

the decision of the Hon'ble Supreme Court in the case of Shobha

v. The Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana

Ltd 1, wherein it is held as follows:

"6. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court insofar as awarding the interest @ 12% p.a. after the period of expiry of one month from 25.01.2017, is hereby quashed and set aside and it is observed and held that the appellants herein-original claimants shall be entitled to the interest @ 12% p.a. on the amount of compensation as awarded by the Commissioner from the date of the incident i.e., 29.11.2009.