Telangana High Court

M A Khayyum vs Shaik Ahmed And Another on 20 February, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

        CIVIL MISCELLANEOUS APPEAL No.336 of 2014

JUDGMENT:

1. The Civil Miscellaneous Appeal is directed against order

dated 17.07.2013 in W.C.No.7 of 2005 (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 17.04.2004 and the same was

partly allowed by the Commissioner granting compensation of

Rs.2,29,789/-. 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 driver on TATA Sumo bearing No.AP 25 U 1276 under

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the employment of opposite party No.1. On 17.04.2004, while the

applicant was driving the said vehicle from Banswada to

Nizamabad along with passengers, at about 08:00 PM, when the

said vehicle reached near turning, Kamshetti village, Birkur

Mandal, the applicant lost control over the vehicle and dashed a

cyclist and the said vehicle turned turtle and the accident

occurred. The applicant and other passengers of the said vehicle

sustained injuries in the said accident. The applicant sustained

fracture of left thigh, fracture of left collies, fracture of left clavicle,

fracture of left ankle joint, injuries on head, chest, hands, legs,

multiple and grievous injuries all over the body. Immediately, the

applicant was shifted to Government Hospital, Banswada and

later, he took treatment in private hospitals and underwent

several operations and rod was inserted in his left leg. The

applicant incurred an amount of Rs.80,000/- towards medical

expenditure. In this regard, a case was registered in Crime No.36

of 2004 on the file of Birkur Police Station against the driver of the

lorry.

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

occurred during the course and out of his employment as driver

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

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aged about 35 years as on the date of the accident and he was

being paid an amount of Rs.4,000/- per month towards wages and

Rs.50/- per day towards batha by opposite party No.1. Opposite

party No.1 being the owner and opposite party No.2 being insurer

of the vehicle 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 TATA Sumo bearing No.AP 25 U 1276 and stated

that the said vehicle was insured with opposite party No.2 under

valid and effective policy as on the date of the accident. He

admitted that the applicant was being paid an amount of

Rs.4,000/- towards monthly wages and Rs.50/- towards batha

per day. He also contended that the vehicle 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.

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

averments of the claim application such as age, wages,

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 applicant 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-6.

No oral or documentary evidence was adduced by opposite party

No.1. On behalf of opposite party No.2, no oral evidence was

adduced, but 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 MA. Khayyum met with an accident on 17-04-2004 during the course and out of his employment as driver on TATA Sumo bearing No.AP 25 U 1276 under the employment of 1 opposite party and sustained st

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

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

9. After considering the evidence and documents filed by both

sides, the Commissioner awarded an amount of Rs.2,29,789/-

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 fracture of left femur, fracture of

collies, fracture of left clavicle and fracture of left ankle joint and

pain and suffering. He issued disability certificate by assessing

the disability at 70% being partial and permanent in nature and

determined the loss of earning capacity at 70%. In the cross-

examination, he denied all the suggestions, which were put to him

by opposite party No.2.

15. 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

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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 70%. Further, as opposite party No.2 did not adduce

any evidence to prove its case the Commissioner held that both

the opposite parties are jointly and severally liable to pay

compensation to the applicant.

16. Coming to the quantum of compensation, the Commissioner

based on the documentary evidence on record has rightly

determined the age of the applicant as 35 years. Further, though,

the applicant claimed that he was being paid an amount of

Rs.4,000/- per month towards wages and Rs.50/- per day towards

batha, 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.

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17. 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, 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.