Madras High Court
The New India Assurance Co. Ltd vs Pratab on 23 February, 2018
Author: N.Seshasayee
Bench: N.Seshasayee
IN THE HIGH COURT OF JUDICATURE AT MADRAS Judgment Reserved on : 10.11.2017 Judgment Pronounced on : 23.02.2018 CORAM: THE HONOURABLE Mr.JUSTICE N.SESHASAYEE C.M.A.No.1795 of 2005 and CMP.No.9949 of 2005 and Cros.Obj.No.28 of 2006 CMA.No.1795 of 2005: The New India Assurance Co. Ltd. 45, Moore Street, Chennai 600 001. ... Appellant Vs. 1.Pratab 2.V.Ravi ... Respondents Cros.Obj.No.28 of 2006: Pratap ... Cross Objector Vs. 1.V.Ravi 2.The New India Assurance Co. Ltd., No.45, Moore Street, Chennai 600 001. ... Respondents Prayer in CMA.No.1795 of 2005:- Civil Miscellaneous Appeal filed under Section 30 of Workmen's Compensation Act, 1923, against the order dated 18.2.2005 made in W.C.No.92 of 2004 on the file of the Court of Commissioner for Workmen's Compensation (Deputy Commissioner of Labour-1) at Chennai and received on 23.2.2005. Prayer in Cros.Obj.No.28 of 2006:- Cross Objection in Appeal filed under Order 41 Rule 21 of CPC praying to set aside the order passed in W.C.No.92 of 2004 dated 18.2.2005 by the Commissioner for Workmen's Compensation-I, Chennai-600 006 for a sum of Rs.4,59,449/- and pass an award with interest at the rate of 12% from the date of accident to the awarded amount. In CMA.No.1795 of 2005 : For Appellant : Mr.M.Krishnamoorthy For Respondents : Mr.A.Shanmugaraj for R1 R2 Notice dispensed with In Cros.Obj.No.28 of 2006 : For Appellant : Mr.A.Shanmugaraj For Respondents : Mr.M.Krishnamoorthy for R1 R1 Notice dispensed with JUDGMENT
The insurance company has come forward with this appeal challenging the quantum of compensation awarded by the Deputy Commissioner of Labour-1, Court of Commissioner for Workmen's Compensation, Chennai, in W.C.No.92/2004.
2. The workmen involved in this case is a cleaner of a lorry aged 19 years. The first respondent/claimant while travelling in a lorry bearing registration No.TN21C 8836, suffered injuries to his person due to the negligence of the driver of the lorry, when he dashed the same against the another stationary lorry. The first respondent suffered fractures to his both the legs and so was the bones protruded out and also suffered injuries to his hip region. He was surgically treated. P.W.2, the doctor who assessed the extent of disability has quantified the same at 85%. The workmen at that relevant time was 19 years and claimed that he was earning Rs.3,000/- per month + a batta of Rs.50/- per day. This, if taken on its face value, it would come to Rs.4,500/- per month. But the Tribunal has fixed his monthly income as Rs.4,000/-, which would be the highest that can be given under the Workmen Compensation Act and determined the compensation amount payable by accepting the medical evidence of 85% and arrived at a sum of Rs.4,59,449/-
3. This case was admitted on following substantial questions of law:
(a) Whether the Commissioner can fix the loss of earning capacity overlooking the provisions of Section 4(1)(C)(ii) of Workmen's Compensation Act when there is no evidence fixing loss of earning capacity by a qualified medical practitioner. PP.W.2 had fixed only the physical ability at the exorbitant rate of 85% for the fracture of a right leg.
(b) Whether compensation is payable under the provisions of Workmen's Compensation Act for the physical deformity when there was no proof by a qualified medical practitioner about the loss of earning capacity in accordance with the provisions of the Act.
4. The learned counsel for the appellant submitted that P.W.2, has split up the injuries and assessed the extent of individual disability and accordingly he has assessed the fractures that the workmen has suffered to both his legs at 30% and for the restricted movement of knees at 15% and for the restricted movement of the hip at 35% and in all 85%. The learned counsel submitted that the doctor has almost considered that the workmen is invalid when he assigned 85% permanent disability. However, when going by his testimony, only 35% could be assigned towards loss of earning power. The learned counsel also added that as per Ext.B2-discharge summary, no apparent injury was noted in the hip region which require any medical treatment.
5. Per contra, the learned counsel for the first respondent submitted that the respondent was a young man and having fractured his leg, it would extremely difficult for him to pursue the job that he was pursuing. He also submitted that in a case of collision between two vehicles, the shock will also be felt on hip region of the person who sit in the lorry and therefore, the damages to his hip region is something that could be appreciated even without any medical evidence. He added that it is not always necessary that every pain and discomfort that an injury triggers can medically diagnosed and stated with precision. In fitness of things the Tribunal should have held that the victim has suffered 100% disability and should have awarded compensation accordingly. He also added that the respondent had preferred cross-
objection seeking interest from the 31st day of the accident which is not appreciated by the Tribunal in its main award.
6. It must be stated at the outset that this Court does not have the advantage that the Tribunal had, in that it had the opportunity of observing the victim of the accident. However, if the medical evidence is a guide, then it has to be stated that estimating the disability at 85% for the kind of injuries suffered by the victim appear on the higher side. This Court concludes that functional disability that the victim might have suffered can well be no more than 60%, and accordingly it is fixed at 60%. The compensation thus payable is (60/100 x 4000 x 225.22 x 60/100) is Rs.3,24,317/-. Hence, on this ground cross objection is disallowed.
7. As to the cross objection on payment of interest as per Sec.4A(3) Workmen's Compensation Act, 1923, interest has to be paid from the 31st day from the date on which the compensation becomes payable.
8. Appeal partially allowed, and compensation payable is reduced from Rs.4,59,449/- to Rs.3,24,317/-. Cross objection is also partially allowed and 12% interest is liable to be paid from the 31st day of the accident. The appellant is liable to deposit the balance sum, if the sum already deposited by it before the Tribunal is not adequate to meet the liability arising out of this order, within four weeks from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
23.02.2018 ds Index : Yes/No To:
1.The Deputy Commissioner of Labour-1 Commissioner for Workmen's Compensation Chennai 600 006.
2. The Section Officer, V.R.Section, High Court, Madras.
N.SESHASAYEE, J., ds Pre-delivery Judgment in C.M.A.No.1795 of 2005 & Cros.Obj.No.28 of 2006 .02.2018