Telangana High Court

Sbi General Insurance Co. Ltd., vs C. C Dasharatha on 13 June, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

      THE HONOURABLE DR.JUSTICE G. RADHA RANI

       CIVIL MISCELLANEOUS APPEAL No.640 of 2019


JUDGMENT:

This appeal is filed by the insured - Opposite Party No.2 (for short O.P.2)

aggrieved by the order dated 08.04.2019 passed in E.C.No.18 of 2016 by the

Commissioner for Employees' Compensation and Assistant Commissioner of

Labor - IV, T.Anjaiah Karmika Samkshema Bhavanam, RTC Cross Roads,

Hyderabad.

2. The parties are hereinafter referred as arrayed before the Commissioner.

3. The respondent No.1 - applicant filed a claim application before the

Commissioner claiming compensation of Rs.10.00 lakhs for the injuries

sustained by him during the course of his employment as a driver on the lorry

bearing No.AP-29-TB-4506 against the opposite party No.1 (for short O.P.1) -

the owner of the vehicle as well as O.P.2 - Insurance Company.

3. As per the contention of the claimant, he sustained injuries on 05.03.2015

out of his employment. While he was on duty as a driver on the lorry bearing

No.AP-29-TB-4506, after loading goods in the said lorry, while he was

transporting the same, he stopped his lorry at R.N.Colony 'X' Roads, near

Falaknuma Railway Station for tying the 'thadpadu' on the goods in the lorry

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with a rope. At about 11:00 hours, while he was tying the 'thadpadu' with rope,

accidentally, he fell on the ground and sustained fracture of left femur and left

hip joint besides other multiple injuries all over the body. Soon after the

accident, he was shifted to Osmania General Hospital, Hyderabad and later he

was shifted to Vishwas Hospital, Hyderabad for better treatment. He spent

Rs.50,000/- towards medical expenditure. He stated that he became

permanently disabled and could not work as a driver in future. He was unable

to sit and squat properly or stand and walk for prolonged distances. He further

stated that PS Chatrinaka registered a case in Crime No.108 of 2015 under

Section 338 of IPC.

4. The O.P.1 remained ex-parte.

5. The O.P.2 i.e. the Insurance Company received notice and filed its

counter.

6. The O.P.2 - appellant filed an additional counter admitting the policy

issued by them to the lorry bearing No.AP-29-TB-4506 for the period from

22.02.2015 to 21.02.2016 in favor of O.P.1. O.P.2 contended that though the

accident occurred on 05.03.2015, the FIR was registered on 20.03.2015 with a

delay of 15 days. The FIR was created only for the purpose of the case. The

claimant renewed his Driving License subsequent to the date of the accident

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approaching the license authority. Therefore, the applicant had sustained no

disability and prayed to dismiss the claim against them.

7. The applicant was examined as AW.1 and got examined the Orthopedic

Surgeon, who issued the disability certificate as AW.2. Exs.A1 to A12 were

marked on behalf of the applicant. The O.P.No.2 - appellant got examined an

employee of their company as RW.1 and got examined a Junior Assistant in the

Office of RTA, Ibrahimpatnam as RW.2 and got marked Exs.B1 to B3 on their

behalf.

8. The Commissioner framed the following grounds for consideration:

i) Whether there was employer and employee relationship between O.P.1 and the applicant and the applicant worked as a driver on the lorry bearing No.AP-

29-TB-4506 under the employment of O.P.1 and sustained injuries during the course and out of his employment?

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

iii) If yes, who are liable to pay compensation to the applicant? and;

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

9. The Commissioner answered point No.1 observing that there was

employer and employee relationship between O.P.1 and the applicant and he

sustained injuries while discharging his ancillary duties on the said lorry and

held that the applicant was a workman within the meaning of the Workmen's

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Compensation Act, 1923 (for short "the Act"). The applicant was employed as

a driver on the lorry bearing No.AP-29-TB-4506 for the trade and business of

O.P.1 and met with an accident on 05.03.2015 during the course and out of his

employment.

10. Considering the evidence of AW.2 that the applicant sustained fracture of

shaft left femur with malunion and fracture of left trochanter evolution (fracture

of left hip joint) and the evidence of AW.2, a qualified and competent doctor

would disclose that the applicant developed shortening of left leg, stiffness of

hip joint and because of the said disabilities, the applicant could not drive any

vehicle in future, estimated the partial and permanent disability at 60%.

11. The Commissioner also considered the evidence of RWs.1 and 2 and the

contention of O.P.2 that the applicant had renewed his driving license after the

accident from 29.05.2015 to 28.05.2018, as such he did not suffer any disability

and loss of earning capacity, held that merely because the applicant had

renewed his driving license after the accident, it could not be said that the

applicant had not suffered from any disability on account of injuries sustained

by him in the accident and renewal of the driving license would not disentitle

him from claiming compensation. The Commissioner also observed that there

was no evidence available on record that the applicant was continuing his earlier

profession after the accident with his renewed driving license and considering

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the object of enacting the Act and the judgment of the common High Court for

the State of Telangana and Andhra Pradesh in an unreported case in New India

Assurance Company Limited, represented by its Divisional Manager, DO,

Madanmohan Building, Ranigunj, Secunderabad v. G.Venkataiah and

Another1, assessed the loss of earning capacity of the applicant at 60%.

12. With regard to point No.3, the Commissioner held that the Insurance

Company was liable to pay compensation, as the applicant had a valid and

effective driving license and the vehicle was validly insured with O.P.2, both

O.Ps.1 and 2 were jointly and severally liable to pay compensation to the

applicant.

13. With regard to the amount of compensation, the Commissioner relied

upon the Minimum Rates of Wages fixed by the Government in the Public

Motor Transport Schedule Employment and had taken the basic wage for the

category of a heavy vehicle driver as Rs.4,319/- per month and the V.D.A

payable as notified by the Commissioner of Labor, Telangana as Rs.3,223.50/-

per month and had taken the total wage per month as Rs.7,542.50/- and

calculated the amount of compensation entitled by the claimant as Rs.5,00,077/-

and allowed interest @ 12 % per annum.

C.M.A.No.141 of 2015 dated 26.08.2015

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14. Aggrieved by the said order passed by the Commissioner for Employees'

Compensation and Assistant Commissioner of Labor - IV, Hyderabad, the O.P.2

preferred this appeal raising the substantial questions of law as follows:

a) Whether the applicant comes under the definition of Workman under Section 2(n)(i)(c) of the Employees' Compensation Act, 1923 without there being any document to show the employer - employee relationship?

b) Whether the Commissioner is justified in granting compensation under the head of Loss of earning capacity even though the driving license of the respondent - applicant was renewed after the accident?

c) Whether the learned Commissioner is justified in taking the loss of earning at 60% without there being valid disability certificate from the Medical Board?

d) Whether the Commissioner is entitled to assess the compensation to the injuries which do not find place in Schedule - I?

e) In the absence of any oral or documentary evidence by the insured, the authority coming to the conclusion that the respondent No.1 was an employee and the alleged injuries were sustained during and in the course of employment is proper?

15. Heard Sri A.Ramakrishna Reddy, learned counsel for the appellant and

Smt.Annapurna Sriram, learned counsel for the respondent No.1 - claimant.

16. Learned counsel for the appellant - Insurance Company mainly contended

that the Commissioner failed to appreciate the evidence of RWs.1 and 2 and

Ex.B2, wherein the driving license of the respondent - applicant was renewed

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on 29.05.2015 i.e. after the accident, therefore, it was clear that the claimant did

not suffer any permanent disability. The Commissioner erroneously granted

compensation considering the permanent disability and loss of earning capacity

of the respondent - applicant driver at 60%. The finding of the Commissioner

was erroneous and contrary to the record. As such, the order of the

Commissioner was liable to be set aside. He further contended that RW.2, the

RTA Official clearly stated that the injured applicant renewed his driving

license within three months of the accident and submitted medical fitness

certificate, which itself would show that he was again engaged in the activity of

driving. If the said driving license was obtained for identity purpose, he would

not need to renew his license for driving a heavy goods vehicle.

16.1. He also contended that there was a delay of 15 days in lodging the report.

The injury sustained by the petitioner was not mentioned in Schedule - I of the

Act. It was an un-scheduled injury. The disability certificate was not issued by

the District Medical Board but by a private doctor, which was not valid in the

eyes of law. No document was filed to show that there was employer and

employee relationship between the applicant and O.P.1 - the owner of the

vehicle. No trip sheet or wage register was filed to show that the applicant was

a driver on the vehicle and the accident occurred during the course of his

employment. The quantification of compensation was based on mere surmises

and conjectures and prayed to allow the appeal.

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17. Learned counsel for the respondent No.1 - applicant on the other hand

contended that no substantial question of law would be arising to entertain the

appeal. All the questions raised by the appellant were answered by the

Commissioner in his reasoned order and relied upon the Division Bench

judgment of the Hon'ble Apex Court in Fulmati Dhramdev Yadav and

Another v. New India Assurance Company Limited and Another 2.

18. On a perusal of the judgment of the Hon'ble Apex Court in the above case

relied by the learned counsel for the respondent - applicant, it was held therein

that:

"17. The Act is unequivocal in stating that an appeal from an order of Commissioner can be entertained only if there exists a substantial question of law to be considered. It has been observed by this Court that the phrase "substantial question of law" within this Act shall be understood by its general meaning. When considering the general meaning of this phrase, naturally, the reference is to the Code of Civil Procedure (CPC). The rule therein is that framing of a substantial question of law is of cardinal importance.

20. Illustratively, in North - East Karnataka Road Transport Corporation v. Sujatha [2019 11 SCC 514] (Two-Judge Bench)

2023 Law Suit (SC) 880

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amongst numerous other cases, this Court has observed:

"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."

21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings.

23. It has also been observed by this Court that the Commissioner is the last authority on facts involved in a case. In Golla Rajamma & Ors. v.

Divisional Manager & Another [2017 1 SCC 45] (2-Judge Bench) it was observed that "under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. 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

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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 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."

19. The Hon'ble Apex Court also held that the conclusions arrived at by the

Commissioner if were a possible view, it extinguishes the possibility of

perversity in the findings as per the 2-Judge Bench judgment in C.Manjamma

v. New India Assurance Company Limited 3.

20. The Hon'ble Chief Justice of India Dr.D.Y.Chandrachud in K.Sivaraman

v. P.Sathish Kumar4 also held that:

"25. The 1923 Act is a social beneficial legislation and its provisions and amendments thereto must be interpreted in a manner so as to not deprive the employees of the benefit of the legislation. The object of enacting the Act was to ameliorate the hardship of economically poor employees who were exposed to risks in work, or occupational hazards by providing a cheaper and quicker machinery for compensating them with pecuniary benefits. The amendments to the 1923 Act have been enacted to further this salient purpose by either streamlining the

(2022) 6 SCC 206

(2020) 4 SCC 594

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compensation process or enhancing the amount of compensation payable to the employee."

21. Considering the provisions under Section 30 of the Act that the

Commissioner was the last authority on facts and the appellate jurisdiction of

the High Court was confined only to examine the substantial questions of law

arising in the case and the conclusions arrived at by the Commissioner, even if

considered as a possible view, they could not be considered as perversity and

considering the object of the Act, wherein a beneficial construction had to be

given and the order of the Commissioner also would disclose that he considered

all these aspects raised by the Insurance Company.

22. The oral evidence of AW.1 would prove that he was working as a driver

on the lorry of O.P.1 - the owner of the vehicle. The O.P.1 though received

notices failed to contest the matter. As the O.P.1 failed to rebut the same, it

would establish that he was a workman coming under the Workmen's

Compensation Act. As such, this Court is of the view that the applicant

established employer and employee relationship between him and O.P.1.

22. The learned Commissioner also considered the contention of the

Insurance Company and the evidence of RW.2 with regard to the renewal of

driving license of the applicant within three months after the accident and

observed that:

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"23. Irrespective of competency of RW.2 and whether the applicant has renewed the driving license for ID purpose, it is evident from the record and it is an admitted fact that the applicant has renewed his driving license from 29.05.2015 to 28.05.2018. However, it is an admitted fact that the applicant had a valid driving license as on the date of the accident i.e. on 05.03.2015 and it is an admitted fact that the applicant has sustained injuries in the accident on 05.03.2015 during the course and out of his employment. Merely because he has renewed his driving license after the accident, it cannot be said that the applicant has not suffered from any disability on account of injuries sustained by him in the accident that occurred on 05.03.2015. The evidence of AW.2, whose evidence has been un-rebutted, the applicant has suffered 60% of physical disability. O.P.2 has not examined any of their panel doctors that the applicant has not suffered any physical disability of 60% as assessed by AW.2. The present application was filed against the employer of the vehicle on which he caused accident on 05.03.2015 and it is also clearly established that the applicant met with an accident and suffered injuries on 05.03.2015. AW.2, doctor who assessed the disability at 60%, identified the medical record of the applicant and said that the applicant has suffered disability. There is no contra evidence. Therefore, it is believed that the applicant has suffered 60% physical disability for the injuries sustained by him on 05.03.2015. Therefore, the

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applicant is entitled to get compensation for the permanent disability suffered by him and such ground that the applicant has renewed his driving license, will not disentitle him for claiming compensation. Further, there is no evidence made available on record that the applicant is continuing his earlier profession after the accident with his renewed driving license. The intention of the Legislators in enacting the Workmen's Compensation Act is clear from the Preamble of the Act, which reads as follows:

''An Act to provide for the payment of certain classes of employers to their workmen of compensation for injury by accident.''

Therefore, the applicant is entitled for compensation for the employment injury sustained by him."

23. The learned Commissioner also placed reliance on the judgment of the

Common High Court for the State of Telangana and Andhra Pradesh in

C.M.A.No.141 of 2015 dated 26.08.2015, wherein on similar facts, it was held

that:

"7. I have bestowed my attention to the facts ....... As rightly contended by the learned counsel for the applicant, for the reasons best known, the second opposite party did not summon the said witness (RW.1) to produce the said relevant documents, if any, submitted by the applicant at

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the time of renewal of his driving license. Further, the second opposite party did not adduce any evidence to show that the applicant was continuing to work under the first opposite party or elsewhere as a driver on a heavy vehicle. From the material record, it appears that it is not even suggested to AW.1 that he is still working as driver after getting his driving license renewed from time to time. In the light of the fact that RW.1 did not produce the crucial documents viz., the Form 9 (Renewal application form) and Form 1A (medical certificate), if any, submitted by the applicant at the time of seeking renewal of the driving license and in the absence of any evidence brought on record that the applicant is continuing to work as a driver, there cannot be any inference that the driving license of the applicant was renewed after he had produced before the Regional Transport Office the medical certificate certifying his fitness to drive lorry. There cannot also be an inference that he is fit to drive a lorry more particularly in the light of the evidence adduced regarding his disability.

8. On the aspect of percentage of loss of earning capacity ..... Viewed thus, this Court finds that the two contentions of the learned counsel for the appellant that the driving license of the applicant was renewed twice and that the evidence of a doctor, who did not treat the applicant ought not to have been relied upon by

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the learned Commissioner, are devoid of merit. Accordingly, this Court finds that the learned Commissioner was perfectly justified in determining the compensation after fixing the loss of earning capacity at 45% and that there are no grounds calling for interference with the quantum of compensation determined."

24. This Court does not find any perversity in the findings of the learned

Commissioner on this aspect.

25. The learned Commissioner also observed that AW.2 - an orthopedic

surgeon was a competent and qualified medical practitioner to assess the

physical disability and to issue disability certificate under Section 2(1)(i) of the

Workmen's Compensation Act, 1923 and that he estimated the partial and

permanent disability at 60% by following McBride Scale. Though AW.2

deposed that the loss of earning capacity at 100%, the learned Commissioner

had taken it only as 60%.

26. On a perusal of the order of the learned Commissioner, this Court

considers that all the questions raised by the Insurance Company in the form of

substantial questions of law were answered by the learned Commissioner in his