Andhra Pradesh High Court - Amravati
The Oriental Insurance Company Limited vs Matlapudi Nagaraju And Another on 21 December, 2020
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
MVR,J
C.M.A.No.902 of 2009
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HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.M.A.No.902 OF 2009
ORDER:
This Civil Miscellaneous Appeal is directed against order in W.C.Case No.84 of 2006 dated 07.09.2007 of Assistant Commissioner of Labour - cum - Commissioner for Workmen Compensation, Eluru.
2. The appellant is the insurer. The first respondent was the applicant and the second respondent was the first respondent while the appellant was the second respondent before the Commissioner.
3. By the impugned order, the Commissioner awarded a compensation of Rs.3,36,614/- payable by the second respondent and the appellant jointly and severally to the first respondent.
4. The first respondent filed an application before the Commissioner under Workmen Compensation at Eluru (Commissioner for short) requesting to award a compensation of Rs.4,00,000/- stating that he was a cleaner in the lorry AP 37 V 4339 owned by the second respondent on a monthly wages of Rs.3,500/-apart from Rs.1,000/- per month towards batta. It was the case of the first respondent before the Commissioner that on 25.11.2005 at about 1.30 p.m., when this lorry was proceeding to Bilaspur from Eluru, with a load of fish at Soraneda village of Ghaser District in the State of Chhattisgarh, it turned turtle on account of rash and negligent driving by one Sri M.Ramesh, the driver. It was further the case of the first respondent before the Commissioner, that in that accident, he suffered multiple injuries with fractures that ultimately resulted in permanent disability, which the medical board quantified at 40%. On such basis, claiming that the offending lorry was insured with the appellant by the date of the accident, he claimed compensation MVR,J C.M.A.No.902 of 2009 2 payable by both the appellant as well as the second respondent jointly and severally with costs and with future interest at 12% per annum from the date of the application till realization.
5. The second respondent - owner of the lorry remained ex parte before the Commissioner.
6. The appellant filed a detailed written statement denying the entire claim of the first respondent in every respect, while disputing the nature of the accident, the first respondent being the cleaner working on this lorry during that time and denying its liability under the contract of insurance. It also denied relationship of employer and employee between the second respondent and the first respondent interse and even otherwise, it is not liable to satisfy the claim of the first respondent, since the driver of the lorry had no valid and effective driving licence. Calling the claim excessive, the appellant denied its liability.
7. Basing on the pleadings and the material, the Commissioner settled the following issues for enquiry:
1. Whether the accident occurred, during the course of employment or not?
2. Whether all the Opposite parties are liable to pay compensation and the quantum of compensation?
8. Before the Commissioner, the first respondent examined himself as A.W.1 and Dr.M.V.G.Tilak, one of the members of Medical Board, at Eluru as A.W.2, while relying on Ex.A1 to Ex.A10 in support of his contention. On behalf of the appellant, no oral evidence was let-in and it relied on Ex.B1, the copy of insurance policy.
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9. Basing on the pleadings, evidence and material, the Commissioner held that the accident as claimed by the first respondent did take place and that the first respondent was in employment of the second respondent by then. Thus, a finding was recorded that the first respondent suffered injuries during and in the course of employment of the second respondent. Thus, issue No.1 was held in favour of the first respondent. Considering the extent of disability opined by A.W.2 doctor and the medical board as per Ex.A9 disability certificate treating the functional disability leading to loss of earning capacity at 100%, having regard to age of the first respondent at 19, applying appropriate factor, compensation was awarded by the Commissioner.
10. It is against this order of the Commissioner, the appellant has preferred this C.M.A.
11. The appellant has also set out substantial questions of law in the grounds of appeal in challenging the order of the Commissioner.
12. Heard Sri K.Srinivasa Rao, learned counsel for Sri Kota Subba Rao, learned counsel for the appellant and Sri Naram Nageswara Rao, learned counsel for the first respondent.
13. The substantial questions of law, having regard to the material on record as well as the order of the Commissioner, lead to framing the following points for determination:
1. Whether relationship between the respondents inter se is proved to attract Section 3 of Workmen Compensation Act as the servant and employer respectively?
2. Whether considering the loss of earning capacity at 100%, in view of evidence of A.W.2 the doctor and awarding compensation on such basis is proper?
3. To what relief?
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14. POINT No.1: The first respondent deposed in respect of the accident concerned to this case in detail as A.W.1. His evidence stood supported by Ex.A1 and Ex.A2 FIR in Crime No.149 of 2005 registered on 25.11.2005 in Parasgaon Police Station of Chattisgadh against the driver Sri M.Ramesh. After due investigation, a charge sheet was also laid in the nature of final report as per Ex.A7 and Ex.A8. Suffering injuries in that accident is reflected from the evidence of the first respondent as A.W.1 and Ex.A3 and Ex.A4 would certificate issued by Primary Health Center, Parasgaon, at request of the police, after treating him on 25.11.2005 at about 2.15 a.m. Thus, after the incident, the first respondent was treated in that hospital. The injuries observed in that hospital were a crushed lacerated wound, resulting in fracture to the bones, of 20 cm X 8 cm X bone deep. Further observation recorded in the wound certificate is that the right forearm suffered these fractures, leading to holding back this arm vertically.
15. A.W.2, the doctor, who was one of the members of the Medical Board that examined the first respondent and issued the disability certificate in Ex.A9 concurred with the initial observations recorded in Ex.A3 and Ex.A4 wound certificate. In the sense, the evidence so let-in proved that the first respondent suffered fracture of right radius and the right wrist was drooping. Thus, 40% disability was observed and the doctor deposed that because of these injuries, the first respondent cannot perform light or heavy duties using his right forearm. He also confirmed that the first respondent was treated surgically. He confirmed the fact that the first respondent would not be in a position to use his right forearm to perform any work, which he would have attended to in normal course.
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16. Ex.A1 and Ex.A2 referred the status of the first respondent as the cleaner of the offending lorry. Very presence of the first respondent at the alleged place of the accident, he being subjected to medical attention in Parasgaon Primary Health Center and describing him as an injured witness in Ex.A7 and Ex.A8 final report, positively establishes that he was working on the offending lorry as a cleaner at the time of the alleged accident.
17. The second respondent did not choose to contest the claim and remained ex parte before the Commissioner. The appellant did not choose to let-in any oral evidence or documentary evidence to contest the material so placed by the first respondent in proof of his employment as cleaner on this lorry, working for and on behalf of the second respondent. In the above circumstances, the observations of the Commissioner in the impugned order with reference to issue No.1 have to be confirmed. There is no material or circumstances established by the appellant to take a contra view. Thus, the material on record is proving that during and in the course of employment for the second respondent, the first respondent suffered injuries, as described by A.W.2 doctor. Thus, this point is held in favour of the first respondent and against the appellant.
18. POINT No.2: As seen from Ex.B1 policy of insurance, on the date of the accident, it was in force. Thereby, the second respondent stood indemnified in respect of any claim against her, on account of this contract of insurance. Hence, the appellant stands to liability.
19. The first respondent claimed his wages including batta as stated in para No.4. But it is not supported by any documentary evidence. Even otherwise in terms of The Payment of Wages Act, it is the burden MVR,J C.M.A.No.902 of 2009 6 of the employer, viz. the second respondent to prove wages being paid to the first respondent.
20. The Commissioner took into consideration the income of the first respondent at Rs.2,491/-. He relied on G.O.Ms.No.30 dated 27.07.2000 and applied the wages payable to a cleaner at Rs.1432/- and Variable Dearness Allowance (VDA) at Rs.1054/- in arriving at the above sum.
21. He also considered the age of the first respondent at 19, relying on Ex.A9 disability certificate. It is manifest that considering the age of the first respondent at 19 is against his own version in the petition, where he claimed himself being 22 years old. Even in his deposition as A.W.1, he stated that he was 22 years old on the date of the accident. Therefore, age for the purpose of computation of compensation should be treated as 22 years.
22. The Commissioner considered the functional disability and loss of earning capacity of the first respondent at 100%. The evidence of A.W.2 doctor and Ex.A9 disability certificate, which are not rebutted in any manner either by effective cross-examination on behalf of the appellant bringing out such circumstances to discredit them or by letting in positive evidence, proved and established that the injuries suffered to right forearm by the first respondent have lead to such status of permanent total disability. The right wrist was drooping, as per the evidence of A.W.2. Thus, the right wrist was not firm or stable. Practically, the right wrist is hanging, loosely attached to the forearm, as can be gathered and culled out from the evidence on record.
23. In view of nature of this disability, it is manifest that the first respondent would not be in a position to use his right forearm effectively, as rightly stated by A.W.2 doctor to lift or move light or MVR,J C.M.A.No.902 of 2009 7 heavy objects. When the avocation of the first respondent is established as a cleaner, permanent total disability suffered by him would definitely lead to any amount of disadvantage affecting his capacity to earn. Merely because he would be in a position to earn otherwise, performing other avocations or duties, the same would not present a sequence of consolation.
24. Added to it, this permanent total disability suffered by the first respondent should be considered in terms of schedule - I of Workmen Compensation Act, and applying Section 4(1) (c) (ii) of this Act. When right arm is thus affected beyond wrist, it should be treated at 100%. Though no reasons are specifically assigned in the order under appeal, yet treating this injury to cause 100% loss of earnings by the Commissioner, is just and appropriate.
25. The percentage of wages to consider in this context is 60% as stated in the impugned order. Basing on the parameters indicated above, viz. age of the first respondent at 22 years, percentage of wages at 60% and wages at Rs.2491/-, the compensation to award, stands at Rs.3,30,859/60 ps. It is rounded off to Rs.3,30,860/- only (factor considered is 221.37 considering the age of the first respondent at 22 years by the date of the accident). Therefore, the compensation of Rs.3,36,614/- awarded by the Commissioner has to be reduced to Rs.3,30,860/- only.
26. Unfortunately, the Commissioner did not award interest payable on the compensation from the date of the accident till it was deposited, before him. The first respondent did not choose to question the award on this score. Therefore, it is not necessary to award interest now in terms of Section 4A of Workmen Compensation Act.
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27. Thus, while holding that the second respondent and the appellant are liable to pay compensation to the first respondent jointly and severally, the compensation payable is, as stated above.
28. Thus, this point is answered.
29. POINT No.3: In view of the findings on points 1 and 2, the second respondent and the appellant are liable to pay a compensation of Rs.3,30,860/- only jointly and severally to the first respondent. Thus, the order under appeal requires modification.
30. In the result, this Civil Miscellaneous Appeal is allowed in-part modifying the order of the Commissioner for Workmen Compensation, Eluru, in W.C. Case No.84 of 2006 dated 07.09.2007 and the second respondent and the appellant are directed to pay a compensation of Rs.3,30,860/- only, jointly and severally to first respondent. The Commissioner is directed to release balance amount payable to the first respondent, if any, without insisting for any security. No costs. Interim orders if any, stand vacated. All pending petitions, stand closed.
____________________ M. VENKATA RAMANA, J Dt:21.12.2020 Rns MVR,J C.M.A.No.902 of 2009 9 HON'BLE SRI JUSTICE M. VENKATA RAMANA C.M.A.No.902 OF 2009 Date: 21.12.2020 Rns MVR,J C.M.A.No.902 of 2009 10