Telangana High Court

Cheelam Narayana vs G.Narasimha Reddy And Another on 5 July, 2024

       HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI

       CIVIL MISCELLANEOUS APPEAL No.1121 of 2012

JUDGMENT:

1. Aggrieved by the order dated 29.06.2012 passed in

W.C.No.41 of 2004 NF, on the file of the learned Commissioner for

Employees's Compensation and Deputy Commissioner of Labour,

Nizamabad (for short, 'the Commissioner'), the Applicant therein

filed the present Appeal seeking to modify the order awarded by the

learned Commissioner by enhancing the compensation amount.

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

referred as they were arrayed before the Commissioner.

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

application under the provisions of Workmen's Compensation Act,

1923 (for short, 'the Act') seeking compensation of Rs.4,00,000/-

along with interest on account of the injuries sustained by him in

an accident that occurred on 22.02.2002. It is stated by the

applicant that he used to work as 'Labour' under the employment

of opposite party No.1 on his Tractor bearing No.ATJ1620 and

Trolley bearing No.AP-25B-3835. On 22.02.2002, when he was

proceeding as Labour along with other labours in Trolley bearing

No.AP-25B-3835 towed to the Tractor bearing No.AT-J-1620 under

the instructions of opposite party No.1 from Kalpal Thanda to

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Bhaiorapoor Thanda, on the way at about 8.00 a.m., the driver of

the said Tractor drove it in a rash and negligent manner at a high

speed due to which the tractor and trolley turned turtle

culminating into the accident. As a result, the applicant along

with other labourers sustained injuries and the applicant

sustained fracture injuries on pelvis superior public ramus right

side, injuries on shoulder, head, hands, legs, back, chest and other

parts of the body. Immediately, the applicant was shifted to

Hospital, thereafter took treatment under private doctors. Due to

the said injuries, the applicant became permanently disabled and

was removed from employment by his employer. Based on a

complaint, P.S., Nizamabad Rural, registered a case in Crime No.34

of 2002 under Sections 337 and 338 IPC and filed charge sheet

under Section 338 IPC. The applicant further stated that at the

time of accident, he was aged 33 years and was being paid salary

of Rs.4,000/- per month and as the subject Tractor and Trailer

bearing Nos. ATJ 1620 and AP-25B-3835 were insured with

opposite party No.2 and the insurance was subsisting at the time

of accident, hence, opposite party No.1- owner of the subject

Tractor and Trailer and opposite party No.2, who is the insurer,

both are liable to pay compensation to the applicant.

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4. Opposite party No.1, who is the owner of the subject Tractor

and Trailer, filed his written statement and admitted the

employment of the applicant as labourer working under him. He

also stated that after the accident, due to the disability, the

applicant was not attending to his duties and further stated that

the compensation claimed is excess and exorbitant and as the

subject Tractor and Trailer were insured with opposite party No.2

vide insurance cover note No.38268 valid from 13.09.2001 to

12.09.2002, hence, opposite party No.2 alone is liable to pay

compensation and prayed to dismiss the claim made against him.

5. Opposite party No.2 filed its written statement by denying

the employment of the applicant as labourer under opposite party

No.1 on his Tractor bearing No.ATJ 1620 and Trolley bearing

No.AP-25B-3835, age, wages paid to the applicant, employee-

employer relationship and contended that neither the applicant nor

the opposite party No.1 informed about the accident . It is also

contended by opposite party No.2 that on verification of the

insurance particulars, it was found that only Tractor was insured

with them vide policy bearing No.551302/2001/6703218 valid

from 13.09.2001 to 12.09.2002 and no premium was paid to cover

the risk of labourers. It is further contended that the driver was

not having valid driving license to drive the vehicle and the vehicle

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was not road worthy and lacks fitness certificate and that the

amount of compensation is excess and exorbitant and hence,

prayed to dismiss the claim against it.

6. Based on the above pleadings, the learned Commissioner

had framed the following issues:-

(i) Whether the applicant met with an accident on 2.02.2002 at about 8.00 a.m. during the course and out of his employment as labourer on the Tractor bearing No.ATJ 1620 and Trolley bearing No.AP-25B-3835 under the employment of opposite party No.1 and he sustained injuries in the said accident?

(ii) If yes, what is the percentage of physical disability and consequent loss of earning capacity suffered by the applicant?

(iii) Who are liable to pay compensation to the applicant and

(iv) What is the amount of compensation entitled by the applicant?

7. Before the Commissioner, the applicant himself was

examined as AW1. He reiterated the contents made in the claim

petition that he was employed by opposite party No.1 as labour on

his Tractor bearing No.ATJ 1620 and Trolley bearing No.AP-25B-

3835 and on 22.02.2002, under the instructions of opposite party

No.1, he, along with other labourers proceeded in a Trolley towed

to the Tractor from Kalpol Thanda to Bhairapoor Thanda and on

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the way at about 8.00a.m., the driver of the said tractor drove it in

a rash and negligent manner at a high speed due to which the

Tractor and Trolley turned turtle resulting into an accident. As a

result, he sustained fracture injuries on pelvis superior public rami

right side and also injuries on head, right shoulder, right hand,

both legs and other parts of his body. Immediately, he was shifted

to the hospital and thereafter, undergoing treatment under private

doctors and due to the said injuries, he became permanently

disabled and was removed from his employment by opposite party

No.1 and hence, filed claim petition against opposite party Nos.1 &

2 seeking to award compensation along with interest. In order to

prove about the injuries sustained to him, he got examined AW2,

who is an Orthopedic Surgeon.

8. AW2, who is an Orthopedic Surgeon, deposed in his evidence

that on 21.01.2012, he examined the applicant, verified old records

and found fracture of superior pubic ramus right with malunion

causing inability to bend and lift weights and assessed permanent

partial disability @ 55%, functional disability@ 55% and loss of

earning capacity @ 55% and issued Ex.A4-Disability certificate. He

also subjected the applicant to various exercises and took X-rays

and came to a conclusion that the applicant cannot lift heavy

weights, cannot do hard work, cannot sit and stand for a long time.

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The applicant, in support of his evidence, got marked Exs.A1 to A8

on his behalf. Ex.A1 is the FIR in Crime No.34 of 2002 registered

by Police of Nizamabad Rural Police Station based on a complaint

lodged by Sri Vadla Srinivas. Ex.A2 is the charge sheet filed for the

offence under Section 338 IPC. Ex.A3-injury certificate shows that

the applicant who was aged 33 years, sustained grievous fracture

injury to pelvis superior ramus right side besides contusion on

right shoulder. Ex.A4-Disability certificate shows that the

applicant sustained 55% permanent partial disability. Ex.A5

=Ex.B1-Insurance policy shows that the subject Tractor was

insured with opposite party No.2 and the insurance policy was

valid from 13.09.2001 to 12.09.2002. Exs.A6 & A7 are the

medical bills. Ex.A8 is the copy of judgment in O.P.No.395 of

2003, on the file of the Court of Motor Accidents Claims Tribunal,

Nizamabad, which shows that one of the labourers viz., M.Sailoo,

who was involved in the alleged accident, was awarded with

compensation by opposite parties. Though Opposite party No.2

cross-examined both AW1 & AW2,nothing adverse was elicited

from them to disbelieve their version.

9. On behalf of opposite party No.2, RW1, who is working as

Assistant in opposite party No.2/Insurance Company was

examined. During his cross-examination, he admitted that the

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policy was in force at the time of accident and he also admitted

that without tractor, trolley cannot move.

10. The learned Commissioner, after considering the evidence,

and documents available on record, by applying the minimum

rates of wages which are applicable for a labourer as per

G.O.Ms.No.30 LET & F (Lab-II) Department, dated 27.07.2000,

percentage of disability sustained by him and by applying relevant

factor, had awarded reasonable compensation of Rs.1,62,801/-

payable by both opposite party Nos.1 & 2 jointly and severally

within a period of thirty (30) days from the date of receipt of order

failing which they are liable to pay interest @ 12% per annum.

11. Dissatisfied with the said compensation amount, the

appellant/applicant filed the present Appeal seeking for

enhancement of the same.

12. Heard learned counsel for Appellant as well as learned

counsel appearing for the respondents.

13. The contentions raised by the learned counsel for appellant

are that the learned Commissioner ought to have considered

disability @ 100%, ought not to have reduced monthly wages of the

applicant in the absence of contra evidence and finally, ought to

have awarded interest @ 12% per annum from the date of accident

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till the date of deposit and requested to allow the appeal by

enhancing the compensation awarded by the Commissioner.

14. Per contra, learned counsel for respondents stated that the

learned Commissioner, after considering all the aspects, had

awarded reasonable compensation for which interference of this

Court is unwarranted.

15. Now the point that emerges for consideration is,

Whether the order passed by the learned Commissioner requires interference of this Court?

POINT:-

16. This Court has perused the entire evidence and documents

filed. As seen from the record, it is evident that the appellant, who

worked as a Labourer under the employment of Opposite party

No.1 on his Tractor bearing No.ATJ 1620 and Trolley bearing

No.AP-25B-3835, sustained grievous injuries which resulted in

sustenance of 55% permanent disability in an accident that

occurred on 22.02.2002. The contention raised by the learned

counsel for the appellant is that as the appellant sustained 55%

permanent partial disability, he cannot lift heavy weights, cannot

do hard work, cannot sit and stand for a long time to both legs and

hence, his functional disability can be treated as 100%. In this

regard, it is pertinent to refer the evidence of AW2, who is an

Orthopaedic surgeon and who after thoroughly examining the

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appellant and after verifying the old records, found that the

appellant sustained fracture of superior pubic ramus right with

malunion causing inability to bend and lift weights and assessed

permanent partial disability @ 55% and issued Ex.A4-Disability

certificate. The learned Commissioner, taking into consideration

the evidence of AW2, had rightly fixed the disability @ 55% and

calculated the compensation. This Court is not inclined to

interfere with the conclusion arrived at by the learned

Commissioner, which is in proper perspective.

17. The next contention of the learned counsel for appellant is

with regard to income of the appellant. Though the appellant was

being paid wages of Rs.4,000/- per month, but the learned

Commissioner did not consider the same and fixed the minimum

rates of wages payable for a labourer. In this regard, it is pertinent

to state that as the appellant failed to produce any documentary

proof evidencing that he is being paid wages of Rs.4,000/- per

month, hence, the learned Commissioner had fixed the minimum

rates of wages for computing compensation.

18. The other contention of the learned counsel for appellant was

that the learned Commissioner erred in awarding interest from the

date of default of deposit of the compensation amount and ought to

have awarded interest @ 12% per annum from the date of accident

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till the date of deposit. As seen from the impugned order, the

learned Commissioner awarded interest on the compensation

amount from the date of default of deposit of the compensation

amount by the opposite parties. In Shobha and others v. The

Chairman, Viothalrao Shinde Sahakari Sakhar Karkhana

Limited and others 1, the Honourable Supreme Court held as

under:

"4.1. Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can

2022 (3) ABR1

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direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed hereinabove, the provision for levy of interest would be under Section 4A (3) (a) and the provision for levy of penalty would be under Section 4A (3) (b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A (3) (a) and has considered Section 4A (3) (b) only, which is the penalty provision."

In view of the principle laid down in the above said citation,

it is evident that the applicant is entitled for interest @ 12% per

annum on the compensation amount from the date of accident but

not from the date of default of payment of compensation. Hence,

this Court is inclined to award interest @ 12% per annum from the

date of accident.

19. Insofar as rate of interest is concerned, as per the decision of

the Honourable Supreme Court in P. Meenaraj v. P.

Adigurusamy 2, it is held as under:

"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo, this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there

2 Civil Appeal No 209 of 2022, decided on 6 January 2022

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appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."

20. In view of the above facts and circumstances, this Court is of

the considered opinion that the learned Commissioner after

considering all the aspects has rightly awarded reasonable

compensation as stated supra. However, this Court is inclined to

interfere with the findings of the learned Commissioner only to the

extent of awarding interest @ 12% per annum on the compensation

amount from the date of accident.

21. Hence, the Civil Miscellaneous Appeal is partly allowed by

modifying the impugned order passed by the Commissioner to the

extent of granting interest rate at 12% per annum from the date of

accident till the date of deposit. There shall be no order as to costs.

22. Miscellaneous petitions pending, if any, shall stand closed.