The appellant/opposite party has filed this civil miscellaneous appeal as against the award dated 10.09.2004 passed in W.C.No.60 of 2004 by the learned Commissioner for Workmen's Compensation, DCL-II, Chennai, in directing the 2nd opposite party/the New India Assurance Company Limited, Chennai-1, to pay a sum of Rs.1,49,731/- (Rupees One lakh forty nine thousand seven hundred and thirty one only) to the first respondent/applicant along with interest at 12% per annum from the date of accident till date of payment of compensation.
2. The Short facts of the claim are as follows;-
(i) The applicant was working as a Auto Driver under first opposite party and the first opposite party was paying him a sum of Rs.200/- per day. On 30.08.2001, at about 05.30 p.m., while the applicant was driving the Autorickshaw bearing registration No.TN-07 F-9691, which belongs to the first opposite party, at Old Mahabalipuram Road, near Karappakkam Kandan Wines, the auto dashed against the lorry and met with an accident. The applicant sustained head injury, deep facial injury, fracture and dislocation of right shoulder and right knee and other serious multiple injuries all over the body and took treatment at Shantha Clinic, Perungudi, Chennai. On account of the accident, the applicant was not able to continue his previous work. The above accident took place in the course of employment while working as driver under the first opposite party and the first opposite party had insured the Auto (accident vehicle) bearing registration No. TN 07 F 9691 with the second opposite party under policy No.712404/31/01/03363 and the same was valid from 07.07.2001 to 06.07.2002 and the policy was issued by the second opposite party branch at Indira Nagar, Chennai-20. Hence, the applicant had sought a compensation of Rs.5,00,000/- with interest at 12% per annum to be paid by the second opposite party.
3. The second opposite party/Insurance Company in its counter had stated that the applicant was working under the first opposite party as a paid driver of the autorickshaw bearing No. TN 07 F 9691 on payment of Wages by the first opposite party. The first opposite party had submitted that the applicant had taken the said autorickshaw on 'contract for service' and as such there cannot be any employer-workman relationship between the first opposite party and the applicant herein. As such, the applicant was not an employee/workman of the first opposite party within the meaning of
Section 2(n) of the Workmen's Compensation Act and he is not entitled to any compensation under the provisions of Workmen's Compensation Act, 1923. Further, the second opposite party does not admit the age, wages of applicant, place, date and time of the alleged accident. Further, the second opposite party contends that the first opposite party, having been served with notice of the above proceedings has not appeared in person or through pleader and has also not produced the vehicular documents and proof that the applicant was under his employment. Therefore, the second opposite party is not liable to indemnify the first opposite party in respect of any compensation.
4. As the first opposite party did not file any counter or participate in the proceedings, he was set exparte.
5. Before the Deputy Commissioner of Labour-2 and Commissioner for Workmen's compensation, Chennai, on behalf of the applicants, the applicant and a Doctor, Saichandran gave evidence and furnished five documents. On the side of the first and second opposite party neither any witnesses were examined nor any documents were marked.
6. Two issues were framed by the Deputy Commissioner of Labour which are as follows;
i) Whether the applicant can be treated as a Workman as per the Workmen's Compensation Act? Whether the applicant sustained injuries during the course of his employment with the first opposite party and
ii) What is the quantum of compensation to which the applicant is entitled? Who is to be held liable to pay the compensation?
7. On an examination of the F.I.R, the Deputy Commissioner of Labour had come to a conclusion that the applicant was employed under the first opposite party and sustained injuries during the course of his employment and that he could be considered as 'workman' under the workmen's Compensation Act. Further the learned Commissioner found that there was no evidence given by the applicant to prove that he was earning Rs.200/- per day, but as the first and second opposite parties have also not furnished any proof to counter or disprove the same, the commissioner has fixed the monthly salary of the applicant as Rs.4,000/- as per the Workmen's Compensation Act. The learned Commissioner further accepts the age of the applicant as 30 years at the time of accident as the same has been mentioned in the F.I.R. Further, PW2, the Doctor, N.Saichandran, who gave evidence regarding extent of injury fixed the disability as 30%, after medical check up of the applicant on 10.07.2004. Considering all the above facts, the Tribunal fixed the quantum of compensation as Rs.1,49,731/- and to be paid by the second opposite party/the Insurance Company.
8. Dissatisfied with the above award, the second opposite party/the Insurance Company has preferred an appeal against the above award before this Court, on the following grounds.
1) The Learned Commissioner had erroneously awarded compensation of Rs.1,49,731/- in respect of disability of 30%.
2) The learned Commissioner had erroneously found that the applicant has a disability of 30%, when admittedly, the applicant had not suffered any fracture injuries or grievous injuries and is not permanent in nature.
3) The injuries sustained by the applicant are not injuries as listed in Schedule I of the Workmen's Compensation Act, 1923.
4) The learned Commissioner failed to see that PW2, the doctor, who had assessed the disability had not followed the provisions of
Section 4(1)(c)(ii) of the Workmen's Compensation Act for the purpose of assessing disability.
5) The learned Commissioner had erroneously taken the disability of 30% assessed by PW2, which is only a physical disability for a temporary period and not a work related or functional disability permanently.
6) The learned Commissioner has failed to consider a decision of the Full Bench of the Kerala High Court, reported in 2003 ACJ 1363 and a judgment of the Full Bench of the Karnataka High Court, reported in 2004(2) TN MAC 422, wherein it was held that the compensation has to be assessed on the basis of the percentage of loss of earning capacity for all work, which the workman was capable of performing and not for the work which he was actually doing.
7) The learned Commissioner failed to see that the applicant had not proved his income by way of any documentary evidence.
8) The income of applicant has been erroneously fixed at Rs.4,000/- per month, when there is no proof of such earnings.
9) The learned Commissioner had erroneously shifted the burden of proving the income of the applicant on the appellant/insurance company.
10) The learned Commissioner ought to have taken the minimum wages circular of the Labour Department, Government of Tamil Nadu for the purpose of fixing the income of the applicant, in the absence of proof of earnings by the applicant.
9. The learned counsel for the appellant and the respondents argued their respective cases.
10. The learned counsel for the applicant submitted a citation in support of their case reported in 2005 ACT 149 (New India Assurance Co. Ltd v. Ponnammal), wherein it has been held as follows;
Workmen's compensation Act, 1923,
Section 30(1) Appeal-Substantial question of law-Loss of earning capacity-Whether appeal against the findings of the Commissioner regarding assessment of loss of earning capacity is maintainable- Held:no; question depends upon the factual materials placed before the authority; no substantial question of law is involved.
Workmen's compensation Act, 1923,
Section 4(1) (c)(ii) read with Explanation II-Compensation Determination of loss of earning capacity-Loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter- In a case of non-scheduled injury, reduction in earning capacity will have to be proved as a fact-Principles for determination of loss of earning capacity discussed.
11. Considering all the facts and circumstances of the case, this Court is of the view that;
i) the Deputy Commissioner has not contravened
Section 4(1)(c)(ii) of the Workmen's compensation Act, 1923. In case of unspecified injury resulting in parties disablement, it is not possible for a normal workman to establish his loss of earning capacity by his prospects or the offers to him in the open labour market. In such circumstances, the Commissioner has to assess the loss of earning capacity of the workman according to medical report and on the basis of his own estimate of the workman's possibilities of employment in the open labour market. Medical evidence by itself is not conclusive or decisive factor in the loss of earning capacity. It can only establish the nature of disablement or extent of physical injury. But, to what extent the physical disablement causes loss of earning capacity is not for medical evidence to state. As such, when the case is not of a scheduled injury, the reduction in earning capacity is not a matter of medical opinion and is not a matter to which a medical witness can possibly speak. Thus, the fixing of 30% disability by the learned Commissioner is based on facts and is not a question of law and as such this Court is not warranted to interfere in the said finding.
ii) Regarding the income of the first respondent/applicant, the Deputy Commissioner of labour has followed the Workmen's Compensation Act. As per the Act, he has come to the conclusion that the applicant's income can be taken as Rs.4,000/- per month. As such, this Court does not find any error regarding the computing of income of applicant by the learned Commissioner. Resultantly, the award passed by the Deputy Commissioner of Labour-II, Chennai in W.C.No.60 of 2004 dated 10.09.2004 is confirmed as it is just, equitable and fair. Therefore, the civil miscellaneous appeal No.783 of 2005 is dismissed. This Court directs the second opposite party/appellant to deposit the balance amount within six weeks from the date of receipt of this Order. It is open to the applicant/first respondent to withdraw the balance amount, after it is credited in W.C.No.60 of 2004, on the file of the Deputy Commissioner of Labour-II, Chennai-6. The parties are directed to bear their own cost in this appeal.
15.09.2009 Index:Yes Internet:Yes JIKR To The Deputy Commissioner of Labour-II, Chennai.
C.S.KARNAN,J JIKR PRE DELIVERY JUDGMENT IN C.M.A..No.783 of 2005 15.09.2009