Madras High Court
Oriental Insurance Company Limited vs M.Johnson on 10 December, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/12/2012
CORAM
THE HON'BLE MR.JUSTICE C.S.KARNAN
C.M.A(MD) No.1049 of 2009
Oriental Insurance Company Limited,
Branch Office,
555/1, G.H.Road,
Theni.
.. Appellant
vs
1.M.Johnson
2.P.Senthilkumar
.. Respondents
Civil Miscellaneous Appeal filed under Section 30 of the Workmen
Compensation Act, against the award dated 26.06.2008 received by the counsel
for the appellant on 18.09.2008 and made in W.C.No.277 of 2006, on the file of
the Workmen Compensation Commissioner and Deputy Commissioner of Labour,
Dindigul.
!For Appellant ... Mr.A.K.Baskara Pandian
^For Respondent ... No Appearance
:JUDGMENT
The appellant/2nd respondent has preferred the present appeal in CMA(MD).No.1049 of 2009, against the award made in W.C.No.277 of 2006, on the file of the Workmen Compensation Commissioner and Deputy Commissioner of Labour, Dindigul.
2. The short facts of the case are as follows:-
The petitioner has filed a claim in W.C.No.277 of 2006, claiming a compensation of Rs.7,00,000/- from the 1st and 2nd respondents, for the injuries sustained by him in a motor vehicle accident, while he was doing his duty and under the employment of the 1st respondent as a driver of the 1st respondent's vehicle. It was submitted that the petitioner was working as a driver of the 1st respondent's Jeep bearing registration No.TN-59W-9399 and that on 24.04.2005, at about 11.00 p.m., when the petitioner was driving the Jeep on the Madurai-Trichy National Highway and when it was proceeding between Kathapatti and Vellaripatti Village, the lorry bearing registration No.TN-59W-4044, coming in the opposite direction and dashed against the Jeep and caused the accident. The petitioner sustained injuries all over his body and sustained fractures of his Right Tibia bone and fractures in his forehead and his left eye sight was also impaired. He was immediately admitted at Meenakshi Mission Hospital, Madurai and received treatment as an inpatient from 24.06.2006 to 21.05.2006 and that subsequently he has been receiving treatment as an outpatient. At the time of accident, the petitioner was earning a monthly income of Rs.4,000/- and he was aged 25 years. Due to the injuries sustained in the accident, the petitioner is not able to stand or walk and has frequent headaches, giddiness and forget fulness and his eye sight has also been impaired. Hence, the petitioner has filed a claim as against the 1st and 2nd respondents, who are the owner and insurer of the Jeep bearing registration No,.TN-59W-9399.
3. The 2nd respondent in his counter has denied the allegations in the claim regarding the age, income and occupation of the petitioner and also denied the allegation in the claim that the accident occurred while the petitioner was employed under the 1st respondent and doing his duty during the course of his work as a driver under the 1st respondent. The allegations regarding manner of accident, nature of injuries, medical treatment taken and disability of petitioner was also not admitted. It was submitted that at the time of accident, there was no employer-employee relationship between the 1st respondent and petitioner and that the injuries sustained by the petitioner was simple in native. It was also submitted that the petitioner did not have a valid driving licence at the time of accident. It was submitted that the claim was excessive.
4. On the petitioners side, the petitioner was examined as PW.1 and one Dr.Vijayakumar was examined as PW.2 and nine documents were marked as Exs.P1 to P9 namely: Ex.P1-F.I.R; Ex.P2-wound certificate; Ex.P3-discharge summary issued by Meenakshi Mission Hospital, Madurai; Ex.P4-driving licence; Ex.P5-RC book; Ex.P6-insurance policy; Ex.P7-charge sheet; Ex.P8-disability certificate and Ex.P9-X ray. On the respondent's side, the Senior Assistant of the 2nd respondents firm, one M.Muralidharan, was examined as RW.1 and one document i.e., copy of the extract of driving licence of petitioner was marked as Ex.R1.
5. The Commissioner for Workmen's Compensation, Dindigul, framed six issues for consideration namely: (1) Did the petitioner work as an employee under the 1st respondent?; (2) If so, did the petitioner sustained injuries in the accident caused while he was doing his work as an employee in the course of employment under the 1st respondent?; (3)What is the age and income of petitioner?; (4) What is the loss of earning capacity sustained by the petitioner?; (5) What is the quantum of compensation which the petitioner is entitled to get?; (6) Who is liable to pay compensation?.
6. PW.1, the petitioner has adduced evidence which is corroborative of the statements made by him in the claim and in support of his evidence, he had marked Ex.P1-F.I.R and Ex.P2-wound certificate. It is seen that the 1st respondent had not refuted the claim of the petitioner that he was working under him as a driver. It is seen from the F.I.R, filed by one Balraj, Account Officer, that the petitioner has been mentioned as the driver of the 1st respondents Jeep bearing registration No.TN-59W-9399. The 2nd respondent had also not let in any rebutted evidence to refute the claim of the petitioner that he was working as a driver under the 1st respondent. Hence, the Commissioner held that the petitioner was an employee working as a driver under the employment of the 1st respondent, in the Jeep bearing registration No.TN-59W-9399 and that he had sustained injuries while doing his work as a driver in the course of duty under the employment of the 1st respondent.
7. The Commissioner, on scrutiny of Ex.P4-driving licence held that the age of the petitioner was 25 years at the time of accident. The Commissioner, on observing that no documentary evidence had been provided to prove that the petitioner was earning Rs.4,000/- per month, held that the income of the petitioner was Rs.3,947/- as per the minimum wages fixed by the Government for Workmen.
8. PW.2,Dr.Vijayakumar, had adduced evidence that he had inspected the petitioner on 03.09.2007 and then on scrutiny of the medical records and on examination of the petitioner after taking x rays, he had seen that the skin on the top of his head had been sheared and that two of the bones in the petitioners right leg had been fractured and that the skin on the petitioner's right forearm had been sheared and his right hip bone had been displaced. He deposed that a surgery had been done on the petitioners leg and that a scar of 7"x4" was seen on the right forearm of the petitioner, where skin grafting had been done. He deposed that the petitioner has difficulty while sitting and passing of stooles and that the movements of the petitioners joint in right knee had been restricted by 50% and that the muscles in these areas have lost their flexibility. He deposed that the petitioner has lost sensitivity in his right forearm where skin grafting was done. He deposed that the petitioner had sustained 42% disability and that he requires a further surgery to remove the plates and screws fixed to set right the fractures and that he would have to spend a sum of Rs.10,000/- for such surgery.
9. On scrutiny of Ex.P2, wound certificate, it is seen that the petitioner had sustained six injuries and that they are all, grievous in nature. Hence, the Commissioner on scrutiny of oral and documentary evidence held that the disability sustained by the petitioner was 42% and award a compensation of Rs.2,15,748/-(60/100xRs.3,947x216.91x42/100) to the petitioner under the head of loss of earning capacity.
10. From scrutiny of Ex.P6, insurance policy, it is seen that the vehicle bearing registration No.TN-59W-9399 belonging to the 1st respondent was insured with the 2nd respondent at the time of accident and hence the Commissioner held the 2nd respondent liable to pay compensation to the petitioner. The Commissioner directed the 2nd respondent to pay the said compensation within 30 days from the date of this order and in default of payment within the stipulated time, the 2nd respondent was directed to deposit the said sum together with interest at the rate of 12% per annum from the date of occurrence of accident till the date of payment of compensation.
11. Aggrieved by the award passed by the Commissioner of Workmen compensation, the 2nd respondent has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Commissioner had failed to note that the claimant has only sustained fracture on the right leg and there is no loss of earning capacity due to injuries sustained in the accident. It was pointed out that the Commissioner failed to note that even according to PW.2, doctor did not state about the loss of earning capacity of the claimant and as such the finding of the Commissioner that the claimant had sustained 42% loss of earning capacity due to the injuries sustained in the accident is unsustainable in law. It was pointed out that the Commissioner failed to see that the claimant had renewed his driving licence even after the accident and hence he could pursue his occupation as a driver even after the accident and as such the claimant has not sustained any loss of earning capacity. It was contended that the award granted was excessive.
12. From the foregoing discussions and on perusing the order of the learned Deputy Commissioner of Labour, Dindigul, passed in W.C.No.277 of 2006, on 26.06.2008, this Court does not find any irregularity or defectiveness in the said award. Therefore, this Court declines to interfere with the said award.
13. Now, the applicant is at liberty to withdraw his entire compensation lying in the credit of W.C.No.277 of 2006, on the file of Deputy Commissioner of Labour, Dindigul, after filing a memo, along with a copy of this order. The learned Deputy Commissioner of Labour, upon receipt of the memo and a copy of the order, is directed to release the entire compensation amount with accrued interest thereon, forthwith, after identifying the applicant through his counsel.
14. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in W.C.No.277 of 2006, on the file of the Workmen Compensation Commissioner and Deputy Commissioner of Labour, Dindigul. Dated 26.06.2008, is confirmed. No costs.
ub To
1.The Motor Accident Claims Tribunal, Workmen Compensation Commissioner and Deputy Commissioner of Labour, Dindigul.
2.The Section Officer, VR Section, High Court, Madras.