United India Insurance Co.Ltd vs Vallapu Bixam Reddy And Another

Telangana High Court

United India Insurance Co.Ltd vs Vallapu Bixam Reddy And Another on 10 January, 2024

          HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

          CIVIL MISCELLANEOUS APPEAL No.674 of 2014

JUDGMENT:

1. The present Civil Miscellaneous Appeal has been directed

against order dated 06.01.2014 in E.C.No.68 of 2012 on the file of the

Commissioner for Employees' Compensation and Deputy

Commissioner of Labour, Nalgonda (hereinafter referred to as 'the

Commissioner'). The said case was filed by respondent No.1 herein

seeking compensation for injuries sustained by him in an accident

that occurred on 06.05.2012 and the same was partly allowed

granting compensation of Rs.2,66,179/-. Aggrieved by the same, the

present Civil Miscellaneous Appeal is filed at the instance of the

insurance company i.e., opposite party No.2 before the Commissioner.

2. 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 a driver on the car bearing No. AP 29T 8767 under the

employment of opposite party No.1. On 06.05.2012, he was on duty as

a driver on the said car and was driving the said vehicle and when he

reached Annarugudem Village of Thallagadda Mandal, one tractor

bearing No.AP-36W-9368 came in the opposite direction and 2 MGP,J CMA_674_2014

unfortunately the Car of the applicant went and hit the said Tractor.

As a result, he sustained fracture of upper and lower limbs, received

grievous injuries on waist, abdomen and head and multiple injuries all

over the body. Based on a complaint, the Police, Thallada Police

Station, registered a case in Crime No.44 of 2012 under Section 337 of

IPC. According to the applicant, he was aged about 42 years as on the

date of the accident and was being paid an amount of Rs.8,000/- per

month as driver under the employment of opposite party No.1. Due to

the accident, he suffered permanent disability and lost his earning

capacity. Hence, the applicant filed the present claim petition seeking

compensation of Rs.4,00,000/- for the injuries sustained by him in

the accident.

4. Before the Commissioner, Opposite party No.1 remained ex-parte

and whereas, Opposite party No.2 filed Counter denying the material

averments of the claim petition. It is also contended that unless and

until the applicant sustained injuries during and in the course of his

employment with opposite party No. 1 and was having valid and

effective driving license, the Insurance Company is not liable to pay

the compensation. It is lastly contended that the claim of the 3 MGP,J CMA_674_2014

compensation is excess and exorbitant and prayed to dismiss the

claim against him.

5. In support of his case, the applicant got examined P.Ws.1 and 2

and got marked Exs.A-1 to A-6. On behalf of opposite party No.2, none

were examined. However, Ex.B.1, Copy of Insurance Policy, was

marked.

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

Commissioner framed the following issues for consideration:

"1. Whether the applicant is a workman within the meaning of the Act and whether the accident occurred during the course of employment under opposite party No.1?

2. If so, to what relief the applicant is entitled and against which of the opposite parties?

7. After considering the evidence and documents filed by both

sides, the Commissioner awarded compensation of Rs.2,66,179/- by

determining the wages of the applicant as Rs.5,441/- and applying the

relevant factor '163.07' for the age of the applicant being 47 years.

Aggrieved by the same, the present appeal is filed at the instance of

opposite party No.2 i.e., the insurance company. 4

MGP,J CMA_674_2014

8. Heard learned Standing Counsel for Insurance Company and

learned counsel for applicant and perused the entire material available

on record.

9. The main contention of the learned Standing Counsel for the

appellant/Insurance Company is that though the applicant sustained

simple injuries, the Commissioner erred in considering the evidence of

the doctor, who is not competent to issue disability certificate and

never treated the applicant. Hence, prayed to allow the appeal by

dismissing the liability against the Insurance Company.

10. Per contra, the learned counsel for applicant argued that the

Commissioner after considering all the aspects awarded just and

reasonable compensation which requires no interference by this Court.

Hence, prayed to dismiss the appeal.

11. This Court has perused the entire evidence and documents

placed on record by both the parties. The applicant got examined

himself as P.W.1 and reiterated the contents of claim petition and

deposed about the manner of the accident and also the injuries

sustained by him in the said accident.

MGP,J CMA_674_2014

12. In support of the injuries sustained by the applicant, the

applicant got examined P.W.2, Orthopedic Surgeon. P.W.2 in his

evidence, has categorically deposed that he examined the applicant

clinically and radiologically on 02.07.2013 and found that the

applicant sustained post traumatic seaqualy right hip with shortening

of one inch and restricted movements at hip joint. He further deposed

that he assessed the percentage of permanent disability at 50% and

also issued Ex.A-4, disability certificate, as the applicant cannot

perform his duties as a driver with the same efficiency as earlier.

13. It is also pertinent to state that the learned Standing Counsel for

the Insurance Company argued that the Doctor/PW.2 is not the

competent person to issue disability certificate as he never treated the

applicant.

14. In T.J.Parameshwarappa v. The Branch Manager, New India

Assurance Company Limited and others 1, the Honourable Supreme Court

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."

1 Civil Appeal Nos.8598-8599 of 2022 (arising out of Special Leave Petition (C) Nos.11730-11731 of

2021 decided on 18.11.2022 6 MGP,J CMA_674_2014

15. In view of the principle laid down in the above said authorities, 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, P.W.2 can be considered as competent medical officer to assess

the disability, as he is none other than Civil Surgeon Specialist at

District Headquarters Hospital, Nalgonda. It is pertinent to note that

disability certificate would be valid for a period of five years for those

whose disability is temporary and while in permanent disability the

validity is life long. In the case on hand, the applicant sustained

injuries, which are permanent partial in nature. Thus, even after

expiry of some years, the injuries sustained by the applicant were not

yet cured and thereby, there was necessity to re-assess the disability

sustained by the applicant in order to ascertain whether the injuries

sustained by the applicant are permanent in nature or temporary.

The injuries sustained by the applicant might not have been cured

completely. In such circumstances and by considering the evidence of

P.W.1 corroborated by the evidence of P.W.2 coupled with the

documentary evidence in the form of Exs.A1 and A2, the disability

certificate under Ex.A.4 can certainly be taken into consideration. 7

MGP,J CMA_674_2014

Hence, the above contention of the learned counsel for the opposite

party No.2 that the learned Commissioner erred in considering the

evidence of P.W.2, is unsustainable.

16. It is also pertinent to state that the oral and documentary

evidence has established the employee and employer relationship

between the applicant and opposite party No.1. This Court is of the

considered opinion that the learned Commissioner has rightly observed

in the impugned Judgment that the appellant/Insurance Company has

not adduced any contradicting material to establish that there is no

employee and employer relationship between the applicant and

opposite party No.1.

17. In this regard it is pertinent to refer the judgment of the Hon'ble

Apex Court in Golla Rajanna etc., v. The Divisional Manager and

another etc., 2 wherein the Honourable Supreme Court held as under:

"11. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The 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 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

2 2017 (2) ALD 14 (SC) 8 MGP,J CMA_674_2014

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."

18. Further, 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 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

3 (2019) 11 SCC 514 9 MGP,J CMA_674_2014

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."

19. In view of the principle laid down in the above said authority, it

is clear that the above contention of the appellant - Insurance

Company 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.

20. Insofar quantum of compensation is concerned, this Court is of

the considered opinion that the Commissioner, after considering all the

aspects, has awarded a reasonable compensation and this Court do

not find any reason to interfere with the said findings of the

Commissioner which are in proper perspective. Hence, the Civil

Miscellaneous Appeal is devoid of merits and the same is liable to be

dismissed.