Telangana High Court
Sri G.Raghavulu vs Sri G.S.Nageswara Rao And Anr on 23 January, 2024
HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
CIVL MISCELLANEOUS APPEAL No.1305 OF 2011
JUDGMENT:
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1. Dissatisfied with the compensation amount awarded by
the Commissioner for Workmen's Compensation and Assistant
Commissioner of Labour-IV, Hyderabad (hereinafter be referred
as the Commissioner) passed in W.C.No.71 of 2004, dated
02.09.2006, the appellant/applicant in W.C. preferred the
present appeal.
2. The brief facts of the case are that the applicant has filed
a claim application seeking compensation of Rs.5,00,000/- with
interest on account of injuries sustained by him in a Motor
Vehicle accident that occurred on 14.11.2004. As per the
applicant, on 14.11.2004, at about 11.30 P.M, when he was
proceeding in the lorry as a driver which belongs to opposite
party No.1 and on reaching near Raghavendra Colony,
Hayathnagar, on National Highway No.09, he stopped the lorry
outside the divider of transport office and after taking papers
pertaining to the said lorry from the transport office and while
crossing the road, one rider of Suzuki Sumurai Motor Cycle
bearing No.AP 28S 8053 drove the vehicle in a rash and 2 MGP,J CMA.No.1305 of 2011
negligent manner at a high speed and dashed the applicant. As
a result, the applicant sustained grievous injuries and fractures
viz., Gr.II compound fracture both bone Rt.M-L/3rd and other
multiple injuries all over the body. Immediately, he was shifted
to Medicare Hospital and later shifted to Osmania General
Hospital, Hyderabad. Based on a complaint, P.S., Hayathnagar,
registered a case in Crime No.534 of 2004 under Section 337
IPC. It is further contended that the applicant was aged 35
years as on the date of accident and was working as driver
under opposite party No.1 on his lorry bearing No.AP 31T 7947
on payment of salary of Rs.4,000/- per month. Opposite party
No.1, being the owner and opposite party No.2, being the
insurer of the said lorry and the policy was subsisting as on the
date of accident, both are jointly and severally liable to pay
compensation.
3. Opposite party No.1 remained exparte. Opposite party No.2
denied the averments of the claim application, including the age,
wages, manner of accident and also denied that the applicant
had a valid and effective driving license and further contended
that the claim of compensation is excess and exorbitant and
prayed to dismiss the claim application against it. 3
MGP,J CMA.No.1305 of 2011
4. Before the Tribunal, the applicant was examined as AW1
and got examined AW2 and marked Exs.A1 to A8 on their
behalf.
5. None of the witnesses were examined on behalf of
opposite parties. However, Ex.D1-Insurance policy was marked
on behalf of them with the consent of the applicant.
6. After considering the entire evidence and documents
filed by both sides, the learned Tribunal had awarded an
amount of Rs.2,17,627/- with interest as compensation to the
appellants. Dissatisfied with the same, the present appeal by
the appellant/applicant.
7. As the learned counsel for the appellant Sri K.L.N.Rao has
passed away, this Court has issued notice to the appellant for
taking alternative steps to engage other counsel on 30.08.2023.
Since then, notice has been sent. However, notice is not served
on the sole appellant. As the matter is of the year 2011, after
hearing the learned counsel for the 2nd respondent-Insurance
Company, this Court intended to dispose of the appeal on
merits.
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MGP,J CMA.No.1305 of 2011
8. Heard the submission of the learned Standing Counsel for
2nd respondent- Insurance Company. On perusal of grounds of
appeal, the main ground urged is that though the appellant had
suffered 100% loss of earning capacity, but the learned Tribunal
has taken only 50% as loss of earning capacity and seeks the
Court to enhance the same.
9. Now the point that emerges for determination is,
Whether the appellant is entitled for enhancement of the loss earning capacity for the injuries sustained by him in the alleged accident?
POINT:-
10. This Court has perused the entire material available on
record. The applicant as AW1 has reiterated the contents of the
claim application and deposed about the manner of accident
and also the injuries sustained by him in the said accident. In
order to prove the same, he got examined AW2-Orthopaedic
surgeon. AW2 in his evidence has stated that on 03.04.2006,
the applicant approached him for disability certificate. On that
he examined him both physically and radiologically and after
going through the medical record of Osmania General Hospital,
found the injury of Gr.II compound fracture both bone right leg 5 MGP,J CMA.No.1305 of 2011
M1/3rd with gross malunion resulting in 1 inch shortening and
varus deformity for which he assessed 40% disability as per
Mc.Brides scale, which is permanent and partial. He also stated
that due to the said injuries, the applicant cannot sit and squat
and cannot drive the vehicle perfectly. In the cross-
examination, he stated that Ex.A2-Discharge card does not
disclose any follow up treatment and also denied that 40%
disability assessed is excessive and as per Ex.A2, the applicant
was not operated and also admitted that the applicant could not
walk without any support, but with artificial limb, however,
denied that the applicant could easily sit and squat. He also
stated that the applicant might not be in a position to drive the
vehicle. Hence, he assessed the loss of earning capacity as
100% keeping the occupation of the applicant and denied other
suggestions.
11. The learned Tribunal, though accepted the evidence of
AW2-Orthopaedic surgeon and also the disability, however, had
not taken the loss of earning capacity at 100%, but had taken
only 50%. Hence, considering the occupation of the applicant
and nature of his work as driver, this Court is of the considered
opinion that the loss of earning capacity can be increased from
50% to 55% as he had sustained fracture injury. Further, the 6 MGP,J CMA.No.1305 of 2011
documents under Exs.A1 to A8 shows that there was no dispute
regarding the accident and the injuries sustained by the
applicant and also treatment undergone by him. Ex.A1-FIR
shows that after the accident, a case has been registered and
the applicant was admitted in the hospital and had undergone
treatment and was discharged as per Ex.A2. The applicant was
also having valid and effective driving license as on the date of
accident as per Ex.A4. Ex.A5 shows that the vehicle is having
valid permit. Ex.A6 shows that the policy was in force as on the
date of accident. Ex.A8-Registration Certificate discloses that
Respondent No.1 is the owner of the vehicle.
12. Therefore, in view of the above discussion, this Court is of
the considered opinion that the learned Tribunal after
considering all the aspects, has rightly awarded compensation.
However, this Court is inclined to increase the loss of earning
capacity from 50% to 55%. The calculation made by the
Commissioner in other aspects shall remain the same. Hence,
the compensation arrived by increasing the percentage of
disability comes to Rs.2,39,390/- from Rs.2,17,627/-. The
respondent No.2-Insurance company is directed to pay the 7 MGP,J CMA.No.1305 of 2011
enhanced amount within a period of one month from the date of
receipt of copy of this order.
13. Hence, the appeal is partly allowed without costs.
14. Miscellaneous petitions pending, if any, shall stand
closed.
______________________________ JUSTICE M.G.PRIYADARSINI
Dt.23.01.2024 ysk
