Madras High Court
New India Assurance Company Ltd vs R.Neelakandan on 11 December, 2013
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.12.2013
Coram:
The Hon'ble Mr. Justice S.PALANIVELU
C.M.A.No.765 of 2007
and M.P.No.1 of 2007
New India Assurance Company Ltd.,
Regional Office, 5th Floor,
No.45, Justice Basheer
Ahmed Building, Moore Street,
Chennai 1. .. Appellant
vs
1.R.Neelakandan
2.N.Babu .. Respondents
Civil Miscellaneous Appeal against the order dated 5th day of December 2006 made in WC No.167 of 2006 on the file of Court of Commissioner for Workmen's Compensation 2 (Deputy Commissioner of Labour 2) Chennai 6.
For Appellant : Mr.S.Manohar
For Respondents : No appearance
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J U D G M E N T
The appeal is directed against the order dated 5th day of December 2006 made in WC No.167 of 2006 on the file of Court of Commissioner for Workmen's Compensation 2 (Deputy Commissioner of Labour 2) Chennai 6.
2. In the claim petition, it is stated that on 09.03.2006 at around 9.30 a.m. while the claimant was driving Lason Toyota Qualis Car bearing Regn.No.TN 09 AD 0335 for a trip from Chennai towards Dindigal, near Kooteripattu near Tindivanam, a scorpio vehicle bearing Regn.No.TN 09 AF 5846 suddenly rushed to overtake a lorry proceeding in the opposite direction, hit front portion of the vehicle of the claimant. When the claimant applied brakes to avoid the accident, since the efficiency of the brakes was not proper, the accident happened. In the said accident, the claimant sustained compound fractures and multiple injuries all over the body. He was admitted in Tindivanam Govt. Hospital and later transferred to Chennai Govt. General Hospital for further treatment. He took treatment in a private hospital and steel plates were fixed in his right thigh. The accident occurred during the course of employment with the first respondent. At the time of accident, the claimant was earning a sum of Rs.4500/- per month and hence claimed a sum of Rs.7,33,860/- as compensation as per Workmen's Compensation Act.
3.In the counter filed by the first respondent, it is stated that the claimant is working as car driver under his employment since 2005, that the accident occurred only due to the rash and negligent driving of the Scorpio Car which came in the opposite direction and hit front portion of the car driven by his driver and in the said accident, the claimant sustained grievous injuries, that he was working as casual worker and paid daily wages at Rs.100/- and that the claimant should have filed claim petition before the Motor Accident Claims Tribunal against the owner and insurer of the Scorpio Car as the accident was due to the rash and negligent driving of the said car.
4. In the counter filed by the second respondent, it is stated that the applicable is not maintainable under Workmen's Compensation Act, that the employer and employee relationship between the claimant and the first respondent is put to strict proof, that the claimant cannot be considered as Workmen as defined under the Workmen's Compensation Act, that the claimant is liable to prove that he was employee under the first respondent by valid document, that the claim amount claimed is excessive and hence the petition has to be dismissed.
5.After analysing the evidence on record, the Deputy Commissioner of Labour, Chennai has passed the award payable to the claimant by adopting the following calculation.
(1)Monthly salary ... Rs.4,000/- (2)Age ... 31 (3)Factor ... 205.95 (4)Percentage of disability ... 55% (5)Compensation ... 60/100x4000x55/100x205.95 Rs.2,71,814/-
6.In this context, the learned counsel for the appellant Mr.S.Manohar would submit that as far as Section 4(1)(c)(ii) of Explanation II of Workmen's Compensation Act is concerned, it deals with assessment of permanent partial disablement. He would further submit that the loss of earning capacity cannot be proved by evidence that workman is unable to earn as much as he did before and that the Deputy Commissioner of Labour has taken into consideration the permanent disability as loss of earning power which is legally unsustainable and that the appeal has to be dismissed.
7. In the considered view of this Court, even though the respondent/claimant has suffered permanent disability, he is not disabled totally from earning as a driver and the permanent disability assessed by the doctor will not amount to functional disability.
8. Having regard to the facts and circumstances of this case, this Court, in a case relating to similar set of facts, reported in 2012 2() TN MAC 12 [National Insurance Co. Ltd. v. E. Chandru & another] has held as follows -
16. In the instant case, though the Doctor has assessed his permanent disability as 45 per cent, but that will not amount to functional disability. However, having regard to the evidence of PW2, Dr.Saichandran and the documents filed thereon and taking into account the fact that the claimant was a driver of the Heavy Vehicle, the functional disability can be assessed at 25 per cent. I am of the view that the percentage of functional disablement has to be modified and accordingly, the amount of compensation arrived by the Deputy Labour Commissioner II is reassessed as 60/100 x 3843 x 25/100 x 213.57 = Rs.1,23,112.43 rounded off to Rs.1,23,120/-.
9. I am in consonance with the view taken by this Court in the above said case. Hence, this Court is of the view that the loss of earning capacity is not the same as the percentage of physical disability and they are conceptually and materially different. In such view of this matter, the loss of earning capacity is reduced to 30% and the compensation is calculated as follows -
1.Monthly salary ... Rs.4,000/-
2.Age ... 31
3.Factor ... 205.95
4.Percentage of disability ... 55%
5.Compensation ... 60/100x4000x30/100x205.95 Rs.1,48,284/-
In view of the above, it is held that the claimant is entitled to compensation of Rs.1,48,284/-.
10. In fine, the Civil Miscellaneous Appeal is allowed in part reducing the compensation to Rs.1,48,284/-. No costs. Consequently, connected Miscellaneous Petition is closed.
11. It is represented by the learned counsel for the appellant that they had already deposited the entire amount awarded by the Dy. Commissioner Labour from which the claimant had already withdrawn Rs.2,01,814/-. Now the balance amount of Rs.70,000/- is available in fixed deposit with Indian Bank, Esplanade Branch, Chennai. Hence, the appellant/Insurance company is permitted to withdraw the balance amount available in the deposit alongwith proportionate interest.
11.12.2013
Internet : Yes
Index : Yes
rgr
To
The Deputy Commissioner
of Labour 2,
Chennai 6.
S.PALANIVELU, J
rgr
C.M.A.No.765 of 2007
11.12.2013