Telangana High Court

M/S. Shriram General Insurnace Co., ... vs C. Chandra Shekar Goud And Another on 9 July, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE DR.JUSTICE G.RADHA RANI

       CIVIL MISCELLANEOUS APPEAL No.652 of 2013


JUDGMENT:

This Civil Miscellaneous Appeal is filed by the appellant - opposite party

No.2 (for short ''O.P.2'') aggrieved by the order dated 05.12.2012 passed in

W.C.No.1 of 2012 by the Commissioner for Workmen's / Employees

Compensation and Deputy Commissioner of Labor-II, T.Anjaiah Karmika

Samkshema Bhavan, RTC 'X' Roads, Hyderabad.

2. The respondent No.1 is the injured applicant. He filed the application

claiming compensation for the personal injuries sustained by him in an accident

on 27.09.2010, during and in the course of employment with respondent No.2 -

opposite party No.1 (for short ''O.P.1''), the owner of the lorry bearing No.AP-

16-W-9783.

3. The case of the applicant was that he was working as a driver on the lorry

bearing No.AP-16-W-9783 under the employment of O.P.1. On 26.09.2010 as

per the instructions of O.P.1, while he was proceeding on the said lorry as driver

from Hyderabad to Vizianagaram and on 27.09.2010 at about 08:45 PM, when

he reached Annavaram Satyanarayana Swamy Temple, a tractor bearing No.

AP-31-U-6652 came with high speed and dashed the lorry of the applicant in

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the opposite direction, due to which, the applicant sustained fracture shaft of

right tibia, head injury and blunt injuries all over the body. Immediately, he

was shifted to Government Hospital, Tuni and thereafter took treatment at

Kamala Hospital, Hyderabad and at Sai Speciality Clinic, West Maredpally,

Secunderabad. The applicant stated that he was aged 25 years by the date of the

accident and was paid wages @ Rs.8,000/- per month and batta @ Rs.100/- per

day. His employer visited the accident spot and paid some amount towards his

treatment. The lorry was insured with O.P.2, therefore claimed compensation

of Rs.8,25,000/- jointly and severally from O.Ps.1 and 2 along with interest @

18 % per annum and costs.

4. The O.P.1 - owner of the vehicle filed his counter admitting his

ownership of the lorry bearing No.AP-16-W-9783, the employment of the

applicant as a driver under him, the occurrence of the accident and the injuries

sustained by the applicant on 27.09.2010. He also admitted the wages paid to

the applicant as Rs.8,000/- per month and daily batta of Rs.100/- and admitted

registration of a case in Crime No.99 of 2010 and that he visited the place of

accident and paid some amount towards medical expenses. He also stated that

the lorry was validly insured with O.P.2 for the period from 21.11.2009 to

20.11.2010 covering the date of accident on 27.09.2010 and if any

compensation was awarded by the Commissioner, the same should be awarded

against O.P.2.

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5. The O.P.2 - Insurance Company filed counter. He called for strict proof

of the averments stated by the applicant in his application and that the applicant

was holding a valid and subsisting driving license and further contended that the

amount of compensation claimed was excessive and exorbitant.

6. During the course of enquiry before the Commissioner, the applicant

examined himself as AW.1 and got examined the Orthopedic Surgeon, who

issued the disability certificate as AW.2 and got marked Exs.A1 to A10 on his

behalf. No oral evidence was adduced by O.Ps.1 and 2. The O.P.2 got marked

the copy of the insurance policy as Ex.B1with consent.

7. On considering the oral and documentary evidence on record, the learned

Commissioner for Employees Compensation and Deputy Commissioner of

Labor-II, Hyderabad held that the applicant was working as a driver on the lorry

bearing No.AP-16-W-9783, met with an accident on 27.09.2010, sustained

injuries during the course of and out of his employment with O.P.1. The

learned Commissioner on considering the evidence of AWs.1 and 2, assessed

the loss of earning capacity of the applicant as 80% and that the O.Ps.1 and 2

were jointly and severally liable to pay compensation to the applicant and

considering the Minimum Rates of Wages fixed by the Government in

Employment of Public Motor Transport, assessed the compensation as

Rs.5,96,607/- and together with stamp fee and advocate fee directed to deposit

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an amount of Rs.5,98,301/- with interest @ 12 % per annum from the date of

accident till the date of deposit.

8. Aggrieved by the said award passed by the learned Commissioner, the

O.P.2 - Insurance Company preferred this appeal raising the following

substantial questions of law:

a) Whether the learned Commissioner properly appreciated that prima facie onus rest on the claimant to plead and establish the master and servant relationship, whereas in the instant lis, the claimant not substantiated the same with cogent documentary proofs. Inspite of that, passing an award in favor of the claimants is legally sustainable or not?

b) Whether the learned Commissioner was right in allowing the claim in the absence of finding in terms of Section 2(n)(i)(c) of the Workmen's Compensation Act (for short '' the Act'') or not? i.e. whether the owner of the vehicle recruited the claimant as a driver more particularly in the absence of pleadings in claim petition in respect of which period and by whom claimant was appointed as a workman? (Evidently no documentary proofs filed by the claimant about his employment particulars and receiving of salary, etc.,)

c) Whether the learned Commissioner properly perceived the categorical assertion of the appellant - Insurance Company that the driver of the crime vehicle was not holding valid driving license to drive the vehicle. Does not it amount to violation of conditions of policy i.e. Ex.B1 or not?

d) Whether the learned Commissioner erred in not giving a finding relating to the case of the appellant that, insured vehicle was not possessing requisite

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fitness certificate and other pre-requisites. In the absence of such a vital aspects, the award passed by the Commissioner is sustainable or not?

e) Whether the learned Commissioner was right in relying on AW.2 - doctor's evidence, wherein he assessed the disability as 25% permanent and loss of earning capacity as 80% by seeing the claimant only without taking into consideration any authentic medical evidence. The said approach of the Commissioner was in consonance with the well settled legal principles or not?

f) Whether the learned Commissioner was right in relying on Ex.A6, disability certificate, as the same would suffer from infirmities and also without referring the claimant to an Authentic Medical Board, which was an authorized body to issue disability certificate. In the absence of said authentic disability certificate arriving findings basing on surmises and conjunctures was legally sustainable or not?

g) Whether the Commissioner was right in awarding interest @ 12 % in favor of the claimant from the date of filing of the claim petition till the deposit of compensation, is it legally sustainable or not?

9. Heard Sri Harinath Reddy Soma, learned counsel for the appellant -

Insurance Company and Sri K.Hari Mohan Reddy, learned counsel for the

respondent No.1 - applicant.

10. Though so many questions were raised by the learned counsel for the

appellant challenging the appeal contending that all would amount to substantial

questions of law, he mainly argued upon the question of the doctor assessing the

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disability as 25%, however, stated about the loss of earning capacity as 80% and

the Commissioner approving the same.

11. Learned counsel for the respondent No.1 - claimant contended that the

Commissioner considered all these aspects while passing the award. No

substantial questions of law would arise and relied upon the Division Bench

judgment of the High Court of Andhra Pradesh in Charan Singh v. G.Vittal

Reddy and Another1 on the aspect that any qualified doctor can assess the loss

of disability vis-a-vis earning capacity and it was not necessary that he should

be the same doctor, who treated the injured.

12. The Hon'ble Apex Court in National Insuance Company Limited v.

Mastan and Another 2 , while considering the differences between Section 30

of the Workmen's Compensation Act, 1923 and under Section 173 of the Motor

Vehicles Act, 1988 observed that:

"Right of appeal is a creature of statute. The scope and ambit of an appeal in terms of Section 30 of the 1923 Act and Section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in course of

2003 (4) ALD 183 (DB)

2006 (2) SCC 641

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employment. The amount of compensation would be determined having regard to the nature of injuries suffered by the worker and other factors as specified in the Act. The findings of fact arrived at by the Commissioner for Workmen's Compensation are final and binding. Subject to the limitations contained in Section 30 of the 1923 Act, an appeal would be maintainable before the High Court; but to put the insurer to further disadvantages would lead to an incongruous situation."

13. Thus, as clarified by the Hon'ble Apex Court, the findings of facts arrived

at by the Commissioner for Workmen's compensation are final and binding and

unless there is a substantial question of law involved in the matter, the appeal is

not maintainable. All the questions raised by the appellant - O.P.2 - Insurance

Company are all questions of fact. Considering the pleadings adduced by the

parties, wherein, O.P.1 i.e. the owner of the vehicle also admitted the

employment of the applicant as a driver on his lorry, the narration of the

accident, the injuries sustained by the applicant, the treatment given to him and

that O.P.1 also admitted visiting the place of accident and the evidence of AW.1

is corroborated with the documentary evidence filed by him marked under

Exs.A1, the certified copy of the FIR registered by the Police of PS Thondangi,

East Godavari District in Crime No.99 of 2010 dated 28.09.2010 basing on the

complaint lodged by the applicant himself and Ex.A2, the certified copy of

charge sheet filed by the police, the Commissioner observed that the applicant

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was working as a driver on the lorry bearing No.AP-16-W-9783 and while he

was carrying the load of liquor from Hyderabad to Vizianagaram and when

reached Annavaram Satyanarayana Swamy Temple, the driver of the tractor

bearing No.AP-31-U-6652 drove the tractor in a rash and negligent manner and

hit the lorry of the applicant in the opposite direction. Due to which, the

applicant sustained injuries on his right leg and he was shifted to Government

Hospital, Tuni for treatment. The Commissioner by considering Ex.A3, the

certified copy of the wound certificate issued by A.P. Vaidya Vidhana Parishad

and Ex.A4, medical certificate issued by Kamala Hospital, Hyderabad, which

would disclose that the applicant was admitted as in-patient in the said hospital

from 29.09.2010 to 02.10.2010 and he was operated on 30.09.2010 for fracture

shaft of right tibia and considering Ex.A5, the medical certificate issued by Sai

Speciality Clinic, West Marredpally, Secunderabad came to the conclusion that

the applicant had taken follow-up treatment at the said hospital. The

Commissioner also considered that the applicant was holding a driving license

under Ex.A8, for which he was authorized to drive Heavy Transport Vehicle

(for short ''HTV'') and MTL and that the driving license was valid up to

23.03.2011, held that the said documentary evidence would establish the

employment of the applicant as a driver on the lorry and the involvement of the

applicant in the accident, while he was driving the said lorry and that he was in

possession of a valid and effective driving license and took treatment in various

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hospitals for the injuries sustained by him. Thus, this Court does not find any

merit in the contention of the learned counsel for the appellant raised in the

grounds of appeal with regard to any substantial question of law arising with

regard to absence of pleadings and establishing about the employer and

employee relationship and that the applicant was not holding a valid driving

license to drive the vehicle.

14. On the aspect of assessing the disability of the applicant and his loss of

earning capacity also, there were clear findings given by the Commissioner.

Considering the evidence of AW.2, a competent Orthopedic Medical

Practitioner, who stated about the applicant approaching him for follow-up

treatment and after examining him clinically and radiologically and after going

through his old records, issued the disability certificate estimating the

permanent and partial disability as 25% and loss of earning capacity as 80% and

AW.2 stated that the applicant developed stiffness of right knee with range of

movements from 0 to 75 degrees and ankle movements and due to the above

problems he could not drive the vehicle. The learned Commissioner on

considering the medical certificate marked under Ex.A4, which revealed that a

surgical correction of long bone was done and that he was operated on

30.09.2010 and considering that the applicant was a driver on a heavy motor

vehicle and for discharging his duties as a driver, swift movements of both

upper and lower limbs were necessary and with the above disability certified by

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AW.2, a competent and qualified medical practitioner, it was not possible for

the applicant to carry out his duties as driver with the same efficiency as he was

capable of doing on the date of the accident, assessed the loss of earning

capacity of the applicant as 80%.

15. The Division Bench of the High Court of Andhra Pradesh in Charan

Singh v. G.Vittal Reddy and Another (cited supra) by considering the

provisions of the Workmen's Compensation Act under Section 4(i)(c) and the

object behind enacting Workmen's Compensation Act, held that:

''13. It is also pertinent to state that the Workmen's Compensation Act is a beneficial piece of legislation conceived in the interest of the workmen, who are the victims of accidents arising out of and in the course of employment and the Act provides for cheaper and quicker disposal relating to compensation through Special Tribunals. The procedure as contemplated under part-V of the Act and the Rules framed thereunder are summary in nature. The Commissioner while passing the Orders shall record concisely a judgment, giving findings on each issue and reasons for such finding. Under Schedule-I, a legal fiction is created by the Legislature wherein injuries referred to in the said Schedule are deemed to result in permanent disablement vis-a-vis the percentage of loss of earning capacity. Thus, the statute itself simplified the process of calculation

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of loss of earning capacity with reference to the scheduled injuries. While, in case of non- scheduled injuries resulting in permanent partial or total disablement, the assessment by qualified Medical Practitioner is necessary as required under Section 4(c)(ii) of the Act. The words "Qualified Medical Practitioner" is also defined under Section 2(1)(i) which means "any person registered under any Central Act, Provincial Act or any Act of the Legislature of a State providing for the maintenance of a register of medical practitioners, or, in any area where no such last mentioned Act is in force, any person declared by the State Government, by notification in the Official Gazette, to be a qualified medical practitioner for the purpose of this Act.

14. Thus, when the Section is very clear and specific regarding the assessment to be made by a qualified medical practitioner, there is no reason to import additional meaning so as to mean that the qualified medical practitioner should be one, who has treated the injured workman. A provision in a beneficial piece of legislation has to be interpreted in such a way as to assure the benefit and not to deny the benefit that is sought to be conferred by statute. Thus, if Section 4 is read with reference to Schedule-I, the inevitable conclusion is that in case of non-

scheduled injuries, the percentage of total disablement as is proportionate to the loss of earning capacity has to be assessed by the

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qualified medical practitioner and it is not necessary that the Doctor, who treated the workman should be the only assessing authority.

It is also not in dispute that the doctor, who was examined before the Commissioner fell within the definition of qualified medical practitioner.

15. Under those circumstances, we are of the considered view that Section 4(1)(c) does not stipulate a requirement of assessment by the medical practitioner who had treated the workmen concerned at the first instance. It is always open for the qualified medical practitioner to assess the loss of disability vis-a- vis loss of earning capacity with reference to the injuries sustained by him and if the employer or the Insurance Company was not satisfied with the assessment made by the medical practitioner, whose evidence was produced, contra evidence ought to have been adduced by the Insurance Company to rebut or impeach the evidence of the medical officer adduced on behalf of the workmen. In the absence of such evidence, we cannot find fault with the order of the learned Commissioner."

16. In the present case also, AW.2 was a qualified medical practitioner, who

was competent to assess the disability of the applicant and appeared before the

Commissioner and stated the reasons for assessing the disability vis-a-vis the

loss of earning capacity. The learned Commissioner not only considering the

evidence of AW.2, but also considering the nature of the job performed by the

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applicant and the injuries sustained by him were coming in the way of

discharging his duties as a driver, assessed the functional disability of the

applicant as 80% independently. Thus, this Court does not find any error or

illegality in the order of the learned Commissioner in assessing the functional

disability of the applicant as 80% and any substantial question of law arising out

of it. AW.2 was also a qualified medical practitioner, who could assess the

disability of the workman vis-a-vis the loss of earning capacity with reference to

the injuries sustained by the applicant. In the present case also, the Insurance

Company had not adduced any evidence contra to the evidence adduced by the

applicant to rebut the same.

17. Section 4-A(3)(a) of the Workmen's Compensation Act prescribed as to

how the compensation to be paid and penalty for default. It reads as follows:

Section 4-A of the Act states:

"4A. Compensation to be paid when due and penalty for default. -

(1) Compensation under section 4 shall be paid as soon as it falls due.

(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 workman,

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as the case may be, without prejudice to the right of the workman to make any further claim.

(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall -

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher, rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification in the Official Gazette, on the amount due; ands

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty percent of such amount by way of penalty:

Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed."