THE HONOURABLE MR.JUSTICE M.GOVINDARAJ C.M.A.No.3739 of 2013 C.Suresh ... Petitioner Vs.
1. A.Mohanraju
2. National Insurance Company Ltd., Regional Office, “Balaji Tower”,2nd Floor, No.11, Ramakrishna Road, Salem 636 007. ... Respondents Prayer : Civil Miscellaneous Appeal filed under Section 30(1) of Workman Compensation Act, against the award of the learned Deputy Commissioner for Workmen's Compensation, Salem made in W.C.No.240 of 2006, dated 29.03.2013, received by the appellant on 15.05.2013.
For Appellant : Mr. K.Ayyadurai for Mr.N.M.Muthurajan For R1 : Mr.P.Anand For R2 : Mr.D.Baskaran
J U D G M E N T
The claimant is the appellant.
2. The appeal is filed for enhancement of compensation awarded by the Deputy Commissioner for Workmen's Compensation, Salem. While, the claimant was working as a driver with the first respondent in lorry bearing Registration No.TN-29-M-9461, his vehicle met with an accident on 1.4.05 at around 5.45 a.m. In that accident, the claimant has suffered fracture i) contusion over right lower end of thigh ii) contusion on left leg above joint iii) contusion leg shoulder iv) Laceration over chin v) contusion left thigh injuries and both the knees and sustained severe injuries. After the accident, immediately he was admitted in the hospital for the First aid and transferred to Mohan Kumaramangalam Hospital, Salem and undergone surgery for 5 times and was under treatment for a longer period. Under these circumstances, a claim petition was filed under Tamil Nadu Workmen Compensation Act. The second respondent is the insurer and the first respondent is the employer of the claimant and hence, the claimant is covered by insurance.
3. The claimant has let in evidence as P.W.1, P.W.2 is the Driver and P.W.3 is the doctor and marked Ex.A1 to A17. No evidence was let in on the side of the respondent.
4. According to the claimant, at the time of accident, he was aged 30 years and was earning a sum of Rs.7500/- per month. The discharge summary is marked as Ex.A9 to Ex.A.12, which shows the following injuries.:-
KIMS kUj;Jtkid tH';fpa[s;s o!;rhh;$; rhd;wpjHpy; (krhM7) gpd;tUkhW Fwpg;gplg;gl;Ls;sJ/ Name :Mr.Suresh C Age:30 yrs Address : S/o.Chinnaswamy Dharmapuri, Tamil Nadu Admitted on :01.04.2005 6.00 a.m Discharged on :12.07.2005 History in Brief:H/o alleged RTA on 01.04.2005 at about 6.00 a.m Physical Examination and findings:-
Rt.LL - Thigh deformity Abnormal mobility, swelling Rt.Leg - Abnormal mobility Lt.thigh -Abnormal mobility Lt.arm -Deformity, swelling jhh;thl; khtl;l kUj;Jtkid tH';fpa[s;s fhar;rhd;wpjHpy; (krhM8) gpd;tUkhW Fwpg;gplg;gl;Ls;sJ/
Mode of accident - Road traffic accident (Lorry vs Lorry) 1.Contusion over Right lower and of thigh 2.Contusion on left leg above joint
3. Contusion on left shoulder Lacerated injury left hand 3x1/2x1/2cm
4. LW order chin 3cmx1cmx1cm
5. Contusion order left thigh pt referred to KIMS Hubli I am of opinion that : Wounds no 1,2,3,5 are grievous in nature No.4 is simple in nature.
muR nkhfd; Fkhuk';fyk; kUj;Jtkid tH';fpa[s;s o!;rhh;$ rk;khpapy; (krhM9) gpd;tUkhW Fwpg;gplg;gl;Ls;sJ/ Name :Mr.Suresh C Address : S/o.Chinnaswamy Admitted on :15.02.2006 Discharged on :28.08.2006
1. Non union shaft of humerus 2.Bilateral Fracture shaft of femur
3. Bilateral Fracture both bone leg compound Posted for surgery 21.03.2003 Non union humerus Post operative period pt was treated with parental antibiotics Advice: To attend ortho OPD after 1 month nryk; Fwp";rp kUj;Jtkid tH';fpa[s;s o!;rhh;$ rk;khpapy; (krhM10) gpd;tUkhW Fwpg;gplg;gl;Ls;sJ/(ehs;/31/12/2006 Kjy; 15/01/2007 tiu) Name :Mr.Suresh C Address : S/o.Chinnaswamy Appiyampatty, Harur, Dharmapuri Dt.
DOA : 30.12.2006 DOS : 01.01.2007 & 05.01.2007 DOD : 15.01.2007 Diagnosis Not union Left Femur with Nail is situ.
Procedure Implant exit and revision, underlocking nailing left tumur, Re nailing Right femur. Non union both bone right leg, osteomyletis and sequestrectomy left enders Nailing & Bone grafting nryk; Fwp";rp kUj;Jtkid tH';fpa[s;s o!;rhh;$ rk;khpapy; (krhM11) gpd;tUkhW Fwpg;gplg;gl;Ls;sJ/(ehs;/10/10/2007 Kjy; 16/10/2007 tiu) Name :Mr.Suresh C Address : S/o.Chinnaswamy Appiyampatty, Harur, Dharmapuri Dt.
DOA : 10.10.2007 DOS : 16.10.2007 Diagnosis United both bone leg with infected implant insitu.
Procedure Ender's nail removal nryk; Fwp";rp kUj;Jtkid tH';fpa[s;s o!;rhh;$ rk;khpapy; (krhM12) gpd;tUkhW Fwpg;gplg;gl;Ls;sJ/(ehs;/28/01/2009 Kjy; 02/02/2009 tiu) Name :Mr.Suresh C Address : S/o.Chinnaswamy Appiyampatty, Harur, Dharmapuri Dt.
DOA : 28.01.2009 DOS : 29.01.2009 DOD : 02.02.2009 Diagnosis Non Union Humerus left with implant failure Procedure Implant Removal, Replating and Bone Grafting Case Summary Admitted with C/o pain in left arm since 3 years A known case of non union SOH with implant failure Now admitted for revision plating
4. On considering the above aspects, the authority under Tamil Nadu Workmen's Compensation Act has assessed the disability at 50% and the compensation at a sum of Rs.2,60,443/- applying the multiplying factor of 219.95 corresponding to Age 23 after fixing the monthly income at Rs.3,947/-.
5. Aggrieved over the award, the appellant preferred the present appeal for enhancement of the compensation on the ground that, he was earning more than Rs.7,500/- per month and the authority applying the G.O., issued on rates of wages, had fixed income. The authority should not have applied this G.O., but should have fixed his income on the basis of the prevailing rates.
6. According to the appellant, the income should have been fixed at Rs.10,000/- per month. The other contention is that, he had suffered very grievous injuries and the nature of the injuries were spoken by P.W.3 Doctor and in support of the same, Ex.P9 to P12, are discharge summaries issued by the Government Hospital. In that event, the authority should have accepted 55% disability on the basis of Ex.P.16, wound certificate Ex.P.17.
7. The learned counsel for the second respondent would vehemently contend that the percentage of disability fixed by the tribunal below, by itself, is excessive. The claimant has not filed any document to show his monthly income. In the absence of any proof of income, it is appropriate to fix the monthly income on the basis of the minimum wages act. The authority has rightly awarded the compensation and the said order do not require interference.
8. It is an admitted fact that the claimant suffered grievous injuries in the accident happened on 1.4.2005 while he was driving the lorry bearing Registration No. TN-29-M-9461. A perusal of the discharge summaries marked as Ex.A.9 to Ex.A.12, would clearly show that he suffered fractures i) contusion over right lower end of thigh ii) contusion on left leg above joint iii) contusion leg shoulder iv) Laceration over chin v) contusion left thigh injuries vi) Compound bilateral fracture of bone on both legs and non union of humerus and severe injuries on both the knees. By virtue of this grievous injuries, the disability was assessed at 55% by P.W.3 Doctor. The claimant had undergone 5 surgeries and was under treatment for a longer period and in the absence of any contra evidence, this court is of the view that it is reasonable to fix the disability at 55%.
9. Insofar as, the income is concerned, even though it is claimed that the claimant had valid driving license, he had not filed any document to that effect. The income was fixed following the Government Order regarding ratio of minimum wages for the relevant period. Therefore, this court is not inclined to modify the income fixed by the authority. As far as other heads are concerned, the compensation fixed by the authority is in order and the award of compensation is computed as under:-
(3947 x 60/100 x 219.95 x 55/100=2,86,487/-)
10. The award is enhanced from Rs.2,60,443/- to the above said amount Rs.2,86,487/- (Rs.2,86,487/- - Rs.2,60,443/- = Rs.26,044/-)
11. In sofaras the award of interest is concerned as per Section 4A of the Employees Compensation Act, the same shall be paid from the 31st day of accident. The authority has passed an order directing that the respondent to deposit the award amount within 30 days, failing which the claimant is entitled for interest. But it is a statutory entitlement and statute provides for interest after 30 days from the date of accident.
12. In view of the submission made the respondent-Insurance Company is directed
a) to deposit interest on the original compensation awarded a sum of Rs.2,60,487/- at the rate of 12% per annum after 30 days from the date of accident till the date on which the deposit was made by them.
b) to deposit Rs.26,044/- being the difference of modified award along with interest at the rate of 12% per annum after 30 days from the date of order till the date of deposit within a period of four weeks from the date of receipt of a copy of this order.
13. In the result, this Civil Miscellaneous Appeal is disposed of with the above directions. No costs.
10.11.2017 nvi To National Insurance Company Ltd., Regional Office, “Balaji Tower”,2nd Floor, No.11, Ramakrishna Road, Salem 636 007.
M. GOVINDARAJ, J.
nvi
C.M.A.No.3739 of 2013
10.11.2017