Andhra HC (Pre-Telangana)
United Insurance Company Ltd. vs Ramulu And Anr. on 12 November, 1999
Equivalent citations: 2000(1)ALT292, (1999)IIILLJ541AP
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
JUDGMENT Elipe Dharma Rao, J.
1. The United India Insurance Company Limited, Hyderabad is the appellant herein which is filed against the order dated April 28, 1993 in WC No. 144 of 1992 by the Commissioner for Workmen's Compensation-Assistant Commissioner of Labour, Circle-I, Rangareddy District whereby the Commissioner has awarded a sum of Rs. 77,479/- by way of compensation for the injuries sustained by the petitioner in a motor vehicle accident that had occurred on March 5, 1992 at about 5.30 p.m. when the respondent- claimant had working as coolie on the lorry bearing No. ADT 4156. The Commissioner for Workmen's Compensation has assessed the percentage of disability on account of the injuries sustained by the applicant-respondent at 70%, determined the age of the petitioner as 22 years and his earnings at Rs. 50/- per day and thus awarded the above said compensation.
2. Aggrieved by the said order, the present appeal is preferred by the Insurance Company contending that the Commissioner should not have accepted the daily wage of the applicant claimant as Rs. 50/- per day and he should have considered that no notice was given to the employer of the applicant by him before filing the above said W.C. and finally submitted that the assessment of the percentage of disability at 70% based on Exs. A-1 to A-14 and in the absence of the examination of the Medical officer who issued the disablement certificate is not rational and thus he should not have awarded the compensation as determined by him.
3. There is no dispute with regard to the rash and negligent driving of the crime vehicle. Therefore, I need not dwell on the said issue. The issue involved in this appeal is with regard to the quantum of compensation awarded by the Commissioner.
4. The Commissioner for Workmen's Compensation has considered the matter based on the oral evidence of the applicant-claimant P.W. 1 and P.W. 2 who is the co-worker and in the absence of the examination of his employer, though notice was served on him and who remained ex parte. The appellant herein has contested the matter on various grounds. Considering the evidence adduced on behalf of the parties the Commissioner for Workmen's Compensation has assessed the percentage of disability at 70% based on the documentary evidence of Exs. A-1 to A-14 and having regard to the injuries sustained by him which are grievous in nature i.e., fracture of both the bones of left leg 3/3 and fracture of left hand, besides other injuries all over the body.
5. With regard to the contention raised by the appellant herein as to the service of notice by the claimant before filing the W.C. is untenable, inasmuch as Clause (b) of Proviso 4 of Sub-section (1) of Section 10 facilitates that the want of notice shall not be a bar to entertain a claim if the employer had knowledge of the accident from any other source at or about the time when the accident occurred. It is also mentioned that the labourers injured who sustained injuries along with the applicant herein have filed WC 142 and 143 of 1992. Therefore, the learned Commissioner has rightly rejected the contention and held that even if no notice was served on the employer, the claim petition is maintainable and it does not operate as a bar for entertaining the application. Further the Commissioner has rightly accepted the earnings of the petitioner at Rs. 50/- per day, in the absence of the evidence on behalf of the employer.
6. Coming to the determination of the quantum of compensation for 70% of the disability, except raising legal issue the respondents have not adduced any contra evidence enabling to come to a different conclusion that the petitioner-claimant did not sustain 70% of the permanent disability. The Supreme Court in a decision Pratap Narain Singh Deo v. Srinivas Sabata, 1976-I-LLJ-235 (SC) has ruled that under Workmen's Compensation Act, the Commissioner is empowered to assess the percentage of disablement having regard to the facts and circumstances of the case. In that case, when the Carpenter has lost his left hand, the Commissioner has assessed the percentage of disability at 100% on the ground that both the hands are essential for a carpenter and with the loss of one hand, he cannot perform carpentry work. In the present case on hand, the applicant also sustained fracture of both bones of his left leg 3/3 and also fracture of left hand besides other injuries all over the body. Thus, applying the principle laid down by the Supreme Court, in Pratap Narain's case (supra), as a strong body and a fit physique is required for a labourer, it can be safely held that the applicant also sustained 70% disability as assessed by the learned Commissioner inasmuch as the applicant cannot do the labour work as he used to do prior to the accident.
7. Further the Kerala High Court in a decision United India Insurance Company Limited and Ors. v. Sethu Madhavan and Ors., has held that when the workmen sustained non-schedule injuries, the Commissioner alone is charged with, the duty of adjudicating the compensation payable to the workmen, the percentage of disablement cannot be co-extensive with the loss of earning capacity in all situations and the loss of earning capacity depends upon the injury and nature and the character of the avocation of the workmen; that the medical evidence though relevant cannot be a decisive factor.
8. Therefore, having regard to the facts and circumstances of the case and applying the ratio that has been laid down by the Supreme Court and the Kerala High Court, I am of the considered view that the Commissioner was justified in asssessing the percentage of disability at 70% and consequently awarding compensation of Rs. 77,479/-. I do not find any irregularity or illegality in the said finding of the Commissioner. Therefore, the appeal is liable to be dismissed and is accordingly dismissed. But in the circumstances of the case, without costs.