Telangana High Court
Mubarak Ahmed vs Md.Munawar Khan And Anr on 27 July, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.1077 OF 2011
JUDGMENT:
Aggrieved by the order dated 13.05.2011 in W.C.Case No.47 of 2010 (NF) passed by the learned Commissioner for Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad, the applicant has filed the present Civil Miscellaneous Appeal for enhancement of compensation.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Deputy Commissioner (hereinafter will be referred as "learned Commissioner").
3. The brief facts of the case are that the applicant has filed an application under the provisions of Workmen's Compensation Act, 1923 (amended as Employee's Compensation Act, 1923) claiming compensation of Rs.5,00,000/- alleging that as on the date of alleged accident, he was aged 20 years and working as cleaner on Lorry bearing No. AP 7T 628 under the employment of opposite party No.1 on a monthly salary of Rs.5,000/-. On 06.08.2004, on the instructions of opposite party No.1 the applicant was 2 MGP,J CMA_1077_2011 discharging his duties on the said lorry and after loading rice bags in the said lorry at godown, Gun Road, Bodhan, the said lorry was weighed at Dharmakanta. While the applicant after taking receipt from Dharmakanta was getting into the lorry, all of a sudden, the driver drove the lorry, due to which the applicant fell down, left tyre of the lorry ran over his left leg. As a result, the applicant sustained grievous injuries to left leg, back both hands, head and other parts of his body. The applicant was immediately shifted to Government Hospital, Bodhan and from there to Nizamabad. The Police, Bodhan Police Station registered a case in Crime No.312/2004 under Section 337 of the Indian Penal Code, however, charge sheet was filed for the offence under Section 338 of the Indian Penal Code. Due to the injuries and fractures, the applicant became permanently disabled and thereby he was removed from his employment by the opposite party No.1. The said lorry belonging to the opposite party No.1 was insured with opposite party No.2 and since the insurance policy was subsisting as on the date of the accident, opposite party Nos.1 and 2 are jointly and severally liable to pay the compensation amount of Rs.5,00,000/-
3 MGP,J CMA_1077_2011
4. After service of notices, the opposite party Nos.1 and 2 filed their respective written statements, wherein opposite party No.1 denied that the applicant was being paid Rs.5,000/-, however, he admitted to have paid Rs.4,000/- as monthly salary without bata. The opposite party No.1 admitted the accident, applicant sustaining injuries in the said accident and applicant possessing valid driving license at the time of the accident. It was further contended that since the lorry was insured with opposite party No.2 and as the insurance policy was subsisting as on the date of the accident, if any compensation is to be awarded, opposite party No.2 alone is liable to pay such compensation and finally prayed to dismiss the application to the extent of opposite party No.1.
5. The opposite party No.2 filed counter denying the averments of the application including age, wages of the applicant as cleaner under opposite party No.1, manner of accident, applicant having valid and affective driving license. It was further contended that the claim of the applicant is exorbitant, excessive, and finally prayed to dismiss the application.
4 MGP,J CMA_1077_2011
6. On behalf of the applicant, AWs 1 and 2 were examined and Exs.A1 to A15 were marked. Exs.A1 to A7 are the attested copies, FIR, charge sheet, injury certificate, statement recorded under Section 161 of the Cr.P.C., scene of offence, sketch map and accident information report. Exs.A8 to A13 are the Photostat copies of registration certificate, goods carriage permit, fitness certificate, tax receipt, insurance policy and driving license. Ex.A14 is the salary certificate and Ex.A15 is the disability certificate. On behalf of opposite party No. 2, its Assistant was examined and Ex.B1 copy of insurance policy was marked. The learned Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of applicant as Rs.1,829/- per month and by applying the factor '224' for the age of injured being 20 years, by fixing the loss of earning capacity at 50%, has awarded compensation of Rs.1,22,909/-.
7. Aggrieved by the quantum of compensation awarded by the learned Commissioner, the applicant has filed the present appeal to enhance the compensation.
8. Heard both sides and perused the material available before this Court.
5 MGP,J CMA_1077_2011
9. The main contention of the learned counsel for the appellant/applicant is that the learned Commissioner has reduced the wages of the applicant. On the other hand, learned Standing Counsel for the Insurance Company/opposite party No.2 contended in the absence of any documentary proof, the learned Commissioner has rightly fixed the wages of the applicant based on the minimum wages in pursuance of government order during the relevant point of time. As seen from the record, the applicant has produced salary certificate to show that he was paid Rs.4,000/- per month as salary. On the other hand, the owner of the lorry/opposite party No.1/employer of the applicant in his written statement admitted about payment of Rs.4,000/- as monthly salary to the applicant. However, learned Commissioner, has assessed the wages of the applicant as Rs.1,829/-, which is basic wages payable to cleaner, in pursuance of G.O.Ms.No.30, dated 27.07.2000 issued by Government of Andhra Pradesh in employment of Public Transport. The learned Commissioner did not consider the wages of the applicant @ Rs.4,000/- on the ground that the applicant did not file any other document except salary certificate. In Mamta Devi v. The Reliance 6 MGP,J CMA_1077_2011 General Insurance Company Limited 1, the Honourable Supreme Court held as under:
"11) Having regard to the object of the Act which envisages dispensation of social justice, we are of the considered view that the Deputy Labour Commissioner-
cum-Commissioner for Workmen Compensation fell in error in arriving at a conclusion that claimants' income is to be construed at Rs.3,900/- p.m. or the minimum wage to be computed should be at Rs.150/- per day in the absence of any proof of income. The written statement filed by the employer would be a complete answer to this, inasmuch as it is categorically admitted by the employer that deceased was drawing Rs.6,000/- per month as wages. The deceased was a truck driver and had four mouths to feed at the time of his demise in the year 2011. By no stretch of imagination, it can be construed that income which he was earning as claimed by his wife in her statement made on oath can be construed as excessive or not commensurate with the wages earned by a truck driver in the year 2011.
12) Thus, the irresistible conclusion which we have to draw is, the unchallenged statement of the wife of the deceased who had deposed that her husband was earning Rs.6,000/- per month deserves to be accepted as gospel truth. We see no reason for disbelieving her statement."
10. Therefore, by considering the principle laid down in the above said citation and since the applicant and opposite party No.1 have categorically stated that the applicant was paid Rs.4,000/- per month as salary, this Court is of the view that the learned Commissioner erred in reducing the wages of the applicant and by considering the minimum wages instead of considering the salary stated in Ex.14 salary certificate. Hence, 1 2023 (4) ALD 49 (SC) 7 MGP,J CMA_1077_2011 this Court is inclined to interfere with the findings of the learned Commissioner, so far as wages of the applicant is concerned and thereby the wages of the applicant may be considered @ Rs.4,000/- per month while calculating the compensation.
11. The other contention of the learned counsel for the applicant is that the learned Commissioner erred in reducing the percentage of disability assessed by AW2 and in fact, the learned Commissioner ought to have fixed the percentage of disability at 100%. As seen from the record, the applicant examined himself as AW1, wherein he has reiterated the averments of the application including the disability sustained by him due to the injuries sustained by him in the accident. In order to prove the disability, the applicant got examined the doctor, who treated the applicant, as AW2. AW2 deposed in his chief examination that on 17.05.2010 he examined the applicant physically, clinically and verified previous medical records and found him suffering with 50% permanent partial disability. AW2 deposed that AW1 suffered with crush injury left foot with fracture of 2nd and 3rd metatarsals with malunion and skin deformity causing cavus of left food, calving of toes and keloid formation left foot. AW2 issued Ex.A3 disability certificate to the extent of injuries sustained by AW1 and he 8 MGP,J CMA_1077_2011 further deposed that the injuries mentioned in Ex.A3 are corresponding to the injuries mentioned in Ex.A15 disability certificate. AW2 assessed the permanent partial disability at 50%. It is not the evidence of AW2 that the injuries sustained by the applicant amounts to permanent disability. Admittedly, the applicant sustained non-schedule injuries. Moreover, the evidence of AW2 is also silent with regard to the capability of AW1 not performing the duties as he used to do previously. It is not even the evidence of AW2 that the applicant cannot do any kind of work in future. In the absence of any such evidence, the contention of learned counsel for the applicant that learned Commissioner ought to have assessed the percentage of disability of the applicant @ 100%, is unsustainable.
12. Based on the above discussion, the applicant is entitled for compensation, which is calculated as under:
Rs.4,000/- x 60 x 50 x 224 = Rs.2,68,800/-
100 100
13. The other contention of learned counsel for the appellant/applicant is that the learned Commissioner awarded interest @ 12% per annum only in the event of failure to deposit the compensation amount within the stipulated time instead of awarding interest from the date of the accident. As seen from 9 MGP,J CMA_1077_2011 the impugned order, the learned Deputy Commissioner awarded interest @12% only on the failure of deposit the compensation amount within stipulated period. The Honourable Supreme Court in P. Meenaraj vs P. Adigurusamy 2, held as under:
"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."
14. A perusal of the principle laid down in the above said citation, it is evident that the applicant is entitled for interest @ 12% per annum on the compensation amount from the date of accident but not from the date of default in payment of compensation by the opposite parties.
15. Under these circumstances, this Court is of the considered view that the impugned order passed by the learned Commissioner can be modified to the extent of fixing the salary 2 Civil Appeal No 209 of 2022, decided on 6 January 2022 10 MGP,J CMA_1077_2011 of the applicant @ Rs.4,000/- per month and awarding interest @ 12% per annum on the compensation amount from the date of the accident as discussed above.
16. Accordingly, the Civil Miscellaneous Appeal is allowed in part. The order dated 13.05.2011 in W.C.Case No.47 of 2010 (NF) passed by the learned Commissioner for Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad is modified to the extent of enhancing the quantum of compensation from Rs.1,22,909/- to Rs.2,68,800/-. The applicant is also awarded interest at 12% per annum on the compensation amount of Rs.2,68,800/- from the date of accident till the date of its deposit. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 27.07.2023 AS