Telangana High Court

The Director, Aireport, Hyderabad vs Shri Mohd Ghouse on 22 February, 2024

        HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI

        CIVIL MISCELLANEOUS APPEAL No.770 of 2010

JUDGMENT:

1. Aggrieved by the order dated 15.03.2010 passed in

W.C.No.7 of 2007, on the file of the Court of Commissioner for

Workmen's Compensation and Assistant Commissioner of

Labour-II, Hyderabad (hereinafter be referred as 'the

Commissioner'), the Appellant/Opposite party filed the present

Appeal to set-aside the order passed by the Commissioner.

2. For the sake of convenience, the parties hereinafter will be

referred as they were arrayed before the Commissioner.

3. The facts of the case in brief are that the applicant filed a

claim application seeking compensation for the injuries

sustained by him in the accident that occurred on 06.08.2006.

As per the petitioner, on 06.08.2006, at about 7:40 A.M, while

he was in employment with opposite party and that while he

was performing his duty at the N.T.R.terminal escalator, on the

new flooring, he slipped from the escalator and fell down, due to

which, he sustained the injuries. As a result, the applicant

suffered Inter trochonitric fracture in left furmer (Hip thight LAT

and Pelvis) and the surgery was conducted a open reduction

internal fixation with dynamic Hip screw and plate was inhered

and fixed, in left leg and plate conical screw at femur DHS. It

was further contended by the applicant that he was aged about

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50 years as on the date of accident and was getting wages of

Rs.26,000/- per month and the notice of accident was served at

7:50 AM on 06.08.2006 to the employer. As the accident

occurred during the course and out of employment by opposite

party, the opposite party is liable to pay compensation.

4. Opposite party/Director, Airport filed its counter denying

the averments of the applicant. However, admitted that the

applicant was working as Assistant (lift) electrical engineering

(Electrical) wing and stated that the applicant was not on duty

when he met with accident and contended that the accident did

not arise out of and in the course of the employment of the

applicant. He stated that the authorities were informed at 8:10

a.m., and the applicant was relieved from duty at 8:00 a.m., and

again came back to the place of accident at 8:10 a.m., to attend

his personal work where he has accidentally slipped and

sustained injuries and contended that the claim of

compensation is excess and exorbitant and prayed to dismiss

the claim against it.

5. In support of their case, on behalf of the applicant, AWs. 1

to 3 were examined and Exs.A1 to A6 were marked. Ex.A1 is

letter No.AA1/HY/AM(E)11/LIFTS dated.07.07.2009, Ex.A2 is

duty roaster from 06.07.2006 to 02.08.2006, Ex.A3 is Medical

Certificate dated.14.10.2006 and other reports, Ex.A4 is

disability certificate dated.20.10.2009 issued by

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Dr.V.K.V.Prasad, Ex.A5 is Sai Specialty Clinic prescriptions

dated.20.10.2009 and Ex.A6 is disability certificate dated

21.05.2008 issued by Prof.V.V.Nandur. On behalf of opposite

party, RWs.1 to 3 were examined and got marked Exs.R.1 to

R.5.

6. After considering the oral and documentary evidence, the

learned Commissioner awarded compensation of Rs.2,20,450/-

together with Advocate fees of Rs.500/- totaling to

Rs.2,20,950/-. Aggrieved by the same, the present appeal is

preferred by opposite party.

7. Heard learned Standing Counsel for appellant/opposite

party/Director, Airport and learned counsel for

respondent/applicant. Perused the entire record.

8. Learned Standing counsel for the appellant/opposite

party firstly contended that the applicant/respondent was not

present at the workplace at the alleged accident. Secondly, he

contended that the applicant has already relieved from his duty

and the said injuries were not arose out of employment. Thirdly,

he contended that there is no loss of earning capacity since the

respondent has been promoted and drawing more salary than

that at the time of occurrence of accident, as such, the

applicant is not entitled to claim compensation. Lastly, he

contended that though AW. 2 assessed the disability at 25%,

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the Commissioner has erroneously fixed the loss of earning

capacity at 60% and prayed to dismiss the application against

the opposite party.

9. On the other hand, learned counsel for the

respondent/applicant sought to sustain the impugned order

passed by the Commissioner contending that after considering

the age, avocation and injuries sustained by the applicant, the

Commissioner has rightly awarded reasonable compensation,

which needs no interference by this Court.

10. Now the point for consideration is as follows:

"Whether the applicant is entitled for compensation

as granted by the Commissioner?"

11. This Court has perused the record and found that the

applicant himself was examined as AW. 1 and in his chief

examination, he reiterated the averments of the petition. In

support of his injuries, he got examined AW.2, Orthopaedic

Surgeon. AW.2, in his chief examination, deposed that he

examined the applicant clinically and radiologically and found

that the applicant sustained stiffness and restriction of

movements in the left hip joint and ¾ inches shortening of left

lower limb. He assessed the percentage of disability at 25% and

issued disability certificate under Ex.A.4 as the applicant

cannot discharge his duties with the same efficiency as earlier.

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He further got examined AW.3, Professor and Chief Audiologist

and speech pathologist. AW.3 in his chief examination deposed

that as on the date of evaluation the applicant suffered mild

hearing loss of 30% and issued disability certificate under

Ex.A.6. Though AWs. 1 to 3 were cross examined at length

nothing adverse was elicited to discredit their statements. 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 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.

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

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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."

12. 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.

Moreover, it is observed that AW.2 i.e., the doctor has assessed

the partial permanent disability at 25% and did not assess loss

of earning capacity. However, the 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 sustained stiffness and restriction of movements in

the left hip joint and ¾ inches shortening of left lower limb, as

such it was not possible for the applicant to perform his duties

with same efficiency as he was doing on the date of the accident.

Thus, the Commissioner, has fixed the percentage of loss of

earning capacity of the applicant at 60%.

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13. It is pertinent to note that the applicant in his cross-

examination stated that he came to the Court by riding his two

wheeler and as there was no lift, he went through stair case,

which clearly discloses that he is physically fit and there is no

loss of earning capacity. Therefore, this Court is inclined to

interfere with the findings of the Commissioner, insofar as

percentage of loss of earning capacity of the applicant.

14. The Honourable Supreme Court in Raj Kumar Vs.Ajay

Kumar and Anr 2 held in para No.15 as under:

"In order to assess the quantum of compensation under the Act, the necessary question that arises is whether the physical disability claimed by the respondent resulted in loss of his earning capacity. The effect of permanent disability on earning capacity was dealt in by in Raj Kumar Vs. Ajay Kumar and Anr. reported in (2011) 1 SCC 343, whereunder the Hon'ble Supreme Court in Para 13 laid down the steps involved to determinie the effect of permanent disability on the actual earning capacity. The first step is to ascertain the activities that the claimant is able to carry on inspite of permanent disability and the activities that he is unable to as a result of permanent disability. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether inspite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood". (para 13)

(2011) 1 SCC 343

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15. In view of the above observations and considering the

principle laid down in above said decision and since the

applicant admitted in his cross-examination that he came to the

Court by riding his two wheeler and as there was no lift, he

went through stair case, this Court is of the opinion that any

amount of disability might have been reduced and thereby the

percentage of loss of earning capacity of the applicant is hereby

reduced from 60% to 50%. Hence, the applicant is entitled to

compensation of Rs.1,83,708/- (Rs.4,000/- x 60/100 x 50/100

x 153.09).

16. Though several grounds were raised by the learned

Standing Counsel for the opposite party, it appears that most of

such grounds are based on question of fact but not on question

of law, more particularly, when the opposite party failed to

establish that there are errors apparent on the face of the

record. The Honourable Supreme Court in North East

Karnataka Road Transport Corporation v. Sujatha 3 held as

under:

"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to

(2019) 11 SCC 514

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the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.

10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.

11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.

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."

17. In view of the principle laid down in the above said

authority, it is clear that the above contention of the opposite

party is not based on a question of law but it is purely a

question of fact, which cannot be raised before this Court as per

Section 30 of the Workmen's Compensation Act.

18. Accordingly, the Civil Miscellaneous Appeal is partly

allowed. The order dated 15.03.2010 in W.C.No.7 of 2007

passed by the Commissioner for Workmen's Compensation and

Assistant Commissioner of Labour-II, Hyderabad, is modified

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only to the extent of reducing the loss of earning capacity from

60% to 50%, which works out to compensation of Rs.1,83,708/-