Telangana High Court
United India Ins Comp. Ltd., Hyderabad vs B Laxmamma, Hyderabad And 3 Others on 11 October, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS APPEAL Nos. 125 and 136 of 2016 COMMON JUDGMENT:
These two appeals are being disposed of by this common judgment since both the C.M.A's are filed by the Insurance Companies challenging the quantum of compensation, are directed against the very same order and decree, dated 14.12.2015 made in W.C.Case No. 65 of 2014 on the file of the Commissioner for Employees' Compensation and Deputy Commissioner of Labour-I, Hyderabad (for short "the Commissioner").
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the Commissioner.
3. The brief facts of the case are that the applicant has filed an application under the provisions of Employees' Compensation Act, 1923 (for short 'the Act') claiming compensation of Rs.8,00,000/- for the injuries sustained by her in the accident that occurred on 08.01.2014. It is stated that on the fateful day, upon instructions of opposite party No. 1, employer, the applicant was proceeding as labourer on the tractor and trailer bearing Nos. AP 22M 9902 and AP 22M 2357 from Achampet to Thummanpet for loading and unloading 2 MGP,J CMA_125 & 136_2016 gravel which is used for roof top of house. When the said tractor and trailer reached near Mahadevpur gate, the driver of the said tractor and trailer drove the vehicle in a rash and negligent manner at high speed and lost control over the vehicle, due to which, the said tractor and trailer turned turtle. As a result, the applicant sustained grievous head injury with facial brasions, fracture of left iliac wing, fracture of right scapula, fracture of left tibial condyle and other multiple injuries all over the body. Immediately, she was shifted to Government Hospital, Achampet and later shifted Viswas Hospital, Hyderabad, for better treatment. Based on the complaint, the Police, Balmoor Police Station, registered a case in Crime No. 2 of 2014 under Section 304(A) and 337 of IPC. According to the applicant, she was hale and healthy, aged about 32 years and earning wages of Rs.8,000/- per month and batta of Rs.50/- per day as labourer under the employment of opposite party Nos.1 and 3 and used to contribute her entire earnings for the welfare of the family. Due to the accident, she suffered permanent disability and lost her earning capacity. Hence, the applicant has filed the application claiming compensation of Rs.8,00,000/- against the opposite party Nos.1 to 4, who are jointly and severally liable to pay the compensation.
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4. Before the Commissioner, the opposite party Nos. 1 and 3 remained ex parties and whereas, the opposite party Nos. 2 and 4, appellants herein, filed counter denying the averments of the application such as employee-employer relationship, salary, age of the applicant and manner of accident. He further contended that unless and until it is proved that the applicant sustained injuries during the course of her employment and the driver of the said tractor and trailer was having valid and effective driving licence, the opposite party Nos. 2 and 4, Insurance Companies are not liable to pay the compensation. It is lastly contended that claim is excessive and exorbitant and prayed to dismiss the application.
5. On behalf of the applicants, AWs. 1 to 3 were examined and Exs.A.1 to A.12 were marked. Ex.A.1 is the certified copy of FIR, Ex.A.2 is the certified copy of MLC, Ex.A.3 is the certified copy of charge sheet, Ex.A.4 is the discharge summary, Ex.A.5 is the medical bill, Ex.A.6 is the disability certificate, Ex.A.7 is the copy of RC of the tractor, Ex.A.8 is the copy of RC of the trailer, Ex.A.9 is the copy of driving licence of the driver, Ex.A.10 is the copy of insurance policy of tractor, Ex.A.11 is the copy of insurance policy of trailer and Ex.A.12 is the X-ray films. On behalf of opposite party Nos.2 and 4, RWs.1 and 2 were examined and Exs.B.1 to B.4 were marked. Ex.B.1 is the 4 MGP,J CMA_125 & 136_2016 true copy of insurance policy issued in respect of tractor bearing No. AP 22M 9902 in favour of opposite party No. 1, Ex.B.2 is the copy of insurance policy, Ex.B.3 is the proceedings of RTA, Mahabubnagar, Ex.B.4 is the copy of registration certificate. On behalf of Authority, Ex.X.1, Authorization letter issued in favour of AW. 3 and Ex.X.2, IP final bill issued by Viswas Hospitals, Karmanghat, Hyderabad, were marked.
6. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of applicant as Rs.6,602/- per month, loss of earning capacity as 70%, by applying the factor '197.03' for the age of applicant being 35 years, has awarded compensation of Rs.5,79,068/-.
7. Aggrieved by the compensation awarded by the Commissioner, the opposite party Nos. 2 and 4/Insurance Companies have filed the present appeal to set aside the impugned order.
8. Heard both sides and perused the record.
9. The main contention of learned Standing Counsel for the opposite party Nos. 2 and 4/Insurance Companies is that though the insurance policy under Exs.B.1 and B.2 is subsisting as on the date of the accident, the policy does not 5 MGP,J CMA_125 & 136_2016 cover the risk of the applicant, as no additional premium was paid by the opposite party Nos. 1 and 3 to cover the risk of the applicant and prayed to dismiss the application and prayed to dismiss the application against them.
10. On the other hand, learned counsel for the applicant sought to sustain the impugned order of the Commissioner contending that considering all aspects including the age and avocation of the applicant, the Commissioner has awarded reasonable compensation and the same needs no interference by this Court.
11. In view of the rival contentions, this Court has perused the entire record and found that the applicant herself was examined as AW. 1 and reiterated the averments of the application in her chief examination. She deposed that the she working as labourer under the employment of opposite party Nos. 1 and 3, employer and sustained injuries during and in the course of her employment with opposite party Nos. 1 and 3. Though AW. 1 was cross examined at length, nothing adverse was elicited to discredit her evidence. In support of her claim, the applicant got examined AW. 2, Orthopaedic Surgeon. AW. 2 in his chief examination, deposed that he examined the applicant clinically and radiologically and found that the 6 MGP,J CMA_125 & 136_2016 applicant sustained grievous head injury with facial abrasions, fracture of left iliac wing, fracture of right scapula and fracture of left tibial condyle and developed stiffness of left shoulder and left knee with limping with painful movements. He further deposed that he assessed the disability at 50% and loss of earning capacity at 80% as the applicant could not perform her duties as earlier with the same efficiency and issued disability certificate under Ex.A.6. AW. 3, billing incharge, in her chief examination, deposed that the applicant admitted as inpatient in Viswas Hospital on 08.01.2014 and discharged on 25.01.2014. She also deposed that the applicant paid Rs.30,000/- towards medical treatment and filed authorization letter dated 07.01.2015 and final bill issued by the hospital authorities under Exs.X.1 and X.2. Though AWs. 1 to 3 were cross examined at length nothing was elicited to discredit their statements.
12. The other contention of the learned Standing Counsel for the Insurance Companies is that the Commissioner erred in considering the evidence of the doctor, who is not competent to issue disability certificate and never treated the applicant. On the other hand, the learned counsel for the applicant contended that the Commissioner erred in not considering the disability of applicant at 70%. Admittedly the applicant met with an 7 MGP,J CMA_125 & 136_2016 accident and also sustained grievous injuries as evident from Exs.A.4 and A.6. Therefore, it is irrelevant as to who has treated the applicant. Moreover, in Raj Kumar v. Ajay Kumar 1 the Honourable Supreme Court held as under:
"13. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
13. In T.J.Parameshwarappa v. The Branch Manager, New India Assurance Company Limited and others 2, the Honourable Supreme Court held as follows:
"The doctor who treated an injured claimant or who examined him subsequently to assess the extent 1 (2011) 1 SCC 343 2 Civil Appeal Nos.8598-8599 of 2022 (arising out of Special Leave Petition (C) Nos.11730-11731 of 2021 decided on 18.11.2022 8 MGP,J CMA_125 & 136_2016 of his permanent disability can give evidence only in regard to the extent of permanent disability."
14. In view of the principle laid down in the above said authorities, it is not necessary that the doctor, who has treated the injured, has to give evidence with regard to disability of the injured, however, the doctor, who has examined the applicant subsequent to the accident can also depose about the disability of the injured. In the case on hand, AW. 2 can be considered as competent medical officer to assess the disability, as he is none other than Orthopaedic Surgeon. In such circumstances and by considering the evidence of AW. 1 corroborated by the evidence of AWs. 2 and 3 coupled with the documentary evidence in the form of Exs.A.1 and A.2, the disability certificate under Ex.A.6 can certainly be taken into consideration, though the said certificate was not issued by competent Medical Board. Hence, the above contention of the learned counsel for the opposite party Nos. 2 and 4 that the Commissioner erred in considering the evidence of AW. 2, is unsustainable.
15. The main contention of the learned Standing Counsel for the Insurance Company is that though the insurance policy under Exs.B.1 and B.2 is subsisting as on the date of the accident, the policy does not cover the risk of the applicant as no additional premium was paid by the opposite party Nos. 1 9 MGP,J CMA_125 & 136_2016 and 3 and thus, opposite party Nos. 2 and 4 are not entitled to pay any compensation. In support of such contention, the opposite party Nos. 2 and 4 filed Ex.B.1, copy of insurance policy, which clearly discloses that the said tractor was insured vide policy bearing No. 2316 2005 1851 4800 000 valid from 24.05.2013 to 23.05.2014 and premium of Rs.1,750/- was paid towards basic third party risks. Ex.B.2, copy of insurance policy, clearly discloses that the said trailer was insured vide policy bearing No. 0511043113P101917709 valid from 25.06.2013 to 24.06.2014 and premium of Rs.1,023/- was paid towards basic third party risks. On behalf of opposite party No. 2, its senior manager, examined as RW. 1. RW. 1 in his cross examination, he admitted that the on the date of accident, the policy of the said tractor was in force. He also admitted that the said tractor was attached to the said trailer as on the date of accident and the opposite party No. 2 issued the package policy for the said tractor. On behalf of opposite party No. 4, its administrate officer, was examined as RW. 2. RW. 2 in his cross examination, admitted that the opposite party No. 4 collected the premium for the said trailer. He also admitted that the policy was in force as on the date of accident. However, except stating that the policy does not cover the risk of the applicant, 10 MGP,J CMA_125 & 136_2016 the opposite party Nos. 2 and 4 has not evinced any cogent evidence to prove the same.
16. In Oriental Insurance Company Limited v. Meena Variyal and others 3, the Honourable Supreme Court observed as under:
"Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods."
17. In National Insurance Company Limited v. Prembai Patel and others 4, the Honourable Supreme Court held as under:
3 (2007) 5 SCC 428 11 MGP,J CMA_125 & 136_2016 "15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect.
However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act."
18. In view of the above discussion and considering the principle laid down in the above said authorities and since the applicant is not a gratuitous passenger and as the applicant is an employee rendering her services to the opposite party Nos. 1 and 3 under employee-employer relationship, the contention of the learned Standing Counsel for the opposite party Nos. 2 and 4 that the policy does not cover the risk of the applicant, in view of non-payment of additional premium, is unsustainable. Therefore, the opposite party Nos. 2 and 4 are liable to indemnify the opposite party Nos. 1 and 3, employers i.e., owner of the said tractor and owner of said trailer .
19. Though several grounds were raised by the learned Standing Counsel for the appellants/insurance companies, it appears that most of such grounds are based on question of fact but not on question of law, more particularly, when the opposite 4 AIR 2005 SC 2337 12 MGP,J CMA_125 & 136_2016 party Nos. 2 and 4 failed to establish that there are errors apparent on the face of the record. The Honourable Supreme Court in North East Karnataka Road Transport Corporation v. Sujatha 5 held as under:
"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.
10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.
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."
20. In view of the principle laid down in the above said authority, it is clear that the above contention of the 5 (2019) 11 SCC 514 13 MGP,J CMA_125 & 136_2016 appellants/insurance companies is not based on a question of law but it is purely a question of fact, which cannot be raised before this Court as per Section 30 of the Workmen's Compensation Act.
21. Under these circumstances, this Court is of the considered opinion that the Commissioner, after considering all the aspects, has rightly came to the conclusion in awarding compensation to the applicant. Thus, this Court is not inclined to interfere with the findings of the Commissioner and the Civil Miscellaneous Appeals are also liable to be dismissed.
22. Accordingly, both the Civil Miscellaneous Appeal are dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 11.10.2023 gms