Madras High Court
Arumugam vs ) S. Saravanakumar on 9 June, 2022
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.M.A.No.2245 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.03.2022
PRONOUNCED ON : 09.06.2022
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A.No.2245 of 2013
Arumugam ... Petitioner/ Appellant
Vs.
1) S. Saravanakumar
2) The Branch Manager,
The National Insurance Company Ltd.,
Branch 3, Thanthai Periyar Market Complex,
Govindasamy Pillai Street,
Near Old Bus Stand,
Salem-1 ... Respondents /
Respondents
PRAYER: Civil Miscellaneous Appeal has been filed under Section 173 of
the Motor Vehicles Act, 1988, against the order dated 30.03.2013 in
W.C.No.58/2011 passed by the Commissioner, Workmens Compensation,
Salem (Deputy Commissioner of Labour).
For Appellant : Mr.R.Nalliyappan
For R-1 : No Appearance
For R-2 : Mr.K.Padmanabhan
*******
https://www.mhc.tn.gov.in/judis
____________
Page No.1 of 9
C.M.A.No.2245 of 2013
JUDGMENT
Seeking for an enhancement of compensation awarded, dated 30.03.2013 by the Commissioner, Workmens Compensation, Salem (Deputy Commissioner of Labour), in W.C.No.58/2011, the claimant has preferred the present Civil Miscellaneous Appeal. The following are the substantial questions of law raised by the appellant.
“1.Whether the Award of the Deputy Commissioner of Labour is correct in fixing 50% of disability even though the Doctor has opined that the Appellant herein has suffered with the disability at the rate of 55%.
2. Whether the order passed by the Deputy Commissioner of Labour is correct in fixing 50% as disability even though the appellant herein as last his job due to the injuries sustained by him the accident.
3. Whether the Award of the Deputy Commissioner of Labour is correct in fixing Rs.4000/- as monthly salary for the driver without following the salary as fixed under Minimum Wages Act and the amendment act of the Workmen's Act.” https://www.mhc.tn.gov.in/judis ____________ Page No.2 of 9 C.M.A.No.2245 of 2013
2. The case of the claimant is that the claimant had been employed as a driver for a salary of Rs.10,000/- per month and he met with an accident on 14.05.2010 which was "out of and in the course of employment "in which he sustained injuries and consequently led to permanent disablement. Therefore, the claimant is entitled to a sum of Rupees Ten Lakhs, as compensation and the claimant filed a petition for compensation in W.C.No.58 of 2011.
3. The employer of the claimant admitted the employment of the claimant as a driver and that he had been working as driver on the date of accident, that is on 14.05.2010.
4. Before the Tribunal, on the side of the claimant, two witnesses, P.W.1 and P.W.2 were examined and exhibits Ex.P1 to P10 were marked. On the side of the respondents, no witness was examined and no exhibit was marked. Upon hearing both sides and perusing the records, the Tribunal fixed the liability on the second respondent and awarded a sum of Rs.2,62,310/- (Rupees Two Lakhs and Sixty Two Thousand Three Hundred and ten only) to the claimant and the same to be paid by way of Demand Draft addressed to the Deputy Commissioner, Labour, Salem within a period of thirty days on receipt https://www.mhc.tn.gov.in/judis ____________ Page No.3 of 9 C.M.A.No.2245 of 2013 of a copy of the said order, in default to pay the amount within the stipulated period, the 2nd respondent has to pay the award amount with interest at the rate of 12% per annum from the date of accident till the date of deposit.
5. Not being satisfied with the compensation awarded by the Tribunal, the claimant is before this Court by way of this present civil miscellaneous appeal.
6. According to the learned counsel for the second respondent, the mode of accident and the salary of the claimant are under dispute. According to the learned counsel for the claimant, the salary of the claimant was Rs.10,000/- per month but according to the employor, the salary of the claimant was Rs.3,750/- and batta was ranging from Rs.50/- to Rs.150/- depending upon the distance travelled. Based upon the available materials, the compensation to be awarded was quantified at Rs.2,62,310/-. As the vehicle had been insured with the National Insurance Company, the Insurance Company was directed to satisfy the award.
7. Challenging the award as inadequate and insufficient the claimant has filed the appeal.
https://www.mhc.tn.gov.in/judis ____________ Page No.4 of 9 C.M.A.No.2245 of 2013
8. The Commissioner for Workmen Compensation has quantified the compensation, taking the monthly income at Rs.4,000/- and the percentage of loss of earning capacity at 50% and the compensation taking the factor as 197.06. Details of calculation are as under:
4000 x 60/100 x50/100 x197.06 = 236472.
9. The learned counsel for the claimant contended that the salary of the driver under the Minimum Wages Act was Rs.5,966/- and therefore, fixing the salary at Rs.4,000/- per month was not correct. Secondly, the quantification of the compensation, without considering the age and the nature of injury, was incorrect, Thirdly, when the doctor had fixed the percentage of disability at 55%, but actually, it was hundred percent considering the functional inability to earn, the Tribunal is not correct in fixing the percentage of disability at 50%.
10. Perusal of the order passed by the Commissioner for workmen would go to show that there is a finding that the accident took place out of and in the course of employment. Towards quantification of compensation, the age of the claimant has been taken as 35. Based on the Minimum Wages Act, https://www.mhc.tn.gov.in/judis ____________ Page No.5 of 9 C.M.A.No.2245 of 2013 salary has been noted at Rs.5,966/- but as per explanation to the Act (under Section 4) monthly salary has been fixed at Rs.4,000/- The only factor to be considered in this appeal is whether the percentage of loss of earning capacity should be fixed at 50% or 100% having regard to the nature of the injury that would have impact upon the job the claimant was doing.
11. As admitted, the claimant was a driver. In fact, the accident took place while he was driving the vehicle. The doctor has stated in his evidence that the driver has undergone four surgeries in the right hand and he would not be able to bend the right hand and therefore, he cannot do any work using the right hand. The evidence of the doctor only shows that the claimant cannot continue his job as a driver. The claimant has become dysfunctional so far as the job of driving is concerned. Therefore, the loss of earning capacity must be construed as 100%. Physical disability is different from functional disability.
Certain disabilities upon certain parts of the body may not affect the earning capacity. In this case, the disability on the right hand would affect driving and hence the earning capacity. Therefore, the Quantification of compensation fixing the loss of earning capacity at 50% is certainly incorrect.
12. The above said discussions will make it clear that the https://www.mhc.tn.gov.in/judis ____________ Page No.6 of 9 C.M.A.No.2245 of 2013 appellant/claimant suffered 100% loss of earning capacity, so the modified compensation is arrived at by fixing the loss of earning capacity at 100% . The compensation is assessed using the formula 60/100 x monthly wages x relevant factor x percentage of loss of earning capacity.
60/100 x 4000/- x 197.06 x 100% = Rs.4,72,944/-
13. In the result, Civil Miscellaneous Appeal is Partly Allowed enhancing the compensation payable to the appellant/claimant at Rs.4,72,944. The substantial questions of law 1 and 2 in this appeal are answered in favour of the appellant and 3rd substantial question of law is answered against the appellant. In all other respects, the order of the Deputy Commissioner for Labour, Salem, cannot be stated to be either erroneous or defective warranting interference by this court in this appeal. No costs.
09.06.2022
sts/nvsri
Index : Yes/No
Internet : Yes/No
Speaking Order / Non-Speaking Order
To:
https://www.mhc.tn.gov.in/judis
____________
Page No.7 of 9
C.M.A.No.2245 of 2013
1) The Commissioner,
Workmens Compensation,
Salem (Deputy Commissioner of Labour).
2) The Section Officer, V.R.Section, Madras High Court, Chennai. https://www.mhc.tn.gov.in/judis ____________ Page No.8 of 9 C.M.A.No.2245 of 2013 J.NISHA BANU, J., sts/nvsri Judgment made in C.M.A.No.2245 of 2013 09.06.2022 https://www.mhc.tn.gov.in/judis ____________ Page No.9 of 9