HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.1634 OF 2004 Dated 31-12-2014 Between:
Mohd. Sajid Hussain.
...Appellant.
And:
Ghouse Mohinuddin and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.1634 OF 2004 JUDGMENT:
This appeal is against the order dated 21-11-2001 in W.C.No.19 of 2000 on the file of Assistant Commissioner of Labour, Nizamabad.
Brief facts leading to this appeal are as follows: Appellant herein filed application before Commissioner of Workmen Compensation, Nizamabad contending that he was a labour on lorry bearing No.APJ- 8979 belonging to first respondent herein which is insured with second respondent and drawing a salary of Rs.3,000/- per month and that on 25-3-1998 while he was travelling in the lorry as labour, during course of employment, due to the negligent driving of driver, the lorry went off the road and turned turtle, as a result, he sustained fracture to both legs and ribs and sustained multiple grievous injuries and that he was shifted to Government Hospital, Bodhan, where he was treated as a impatient and on account of accident, he is unable to do any work including labour work and therefore, entitled for compensation of Rs.3,00,000/- and lower authority granted Rs.63,847/-by taking disability at 30%. Aggrieved by the said order, claimant preferred present appeal.
Heard arguments.
Advocate for appellant submitted that Assistant Commissioner of Labour acted contrary to law and failed to take loss of earning capacity at 100% as there was complete functional disability. He further submitted that Assistant Commissioner of Labour wrongly reduced wages of the workman without any contra evidence. He further submitted that Assistant Commissioner of Labour erred in not awarding any interest on the compensation and for these reasons; the order of the Assistant Commissioner is to be modified.
On the other hand, advocate for Insurance Company submitted that though advocate for appellant contended that claimant was getting a monthly salary of Rs.3,000/-, he has not produced any evidence in support of the same and the employer is also not examined to prove the salary and wages of the labour were taken into consideration and there is no error in the order of the Assistant Commissioner of Labour. He further submitted that as per the medical evidence, there was only partial disability which was assessed at 30% and the same was taken by the Assistant Commissioner of Labour and therefore, there is no error or wrong in the findings of the Assistant Commissioner of Labour which require modification and that the appeal is devoid of merits.
Now the point that would arise for my consideration in this appeal is whether the order impugned is legal, correct and proper?
POINT:
There is no dispute with regard to accident that took place on 25-3-1998. There is also no dispute with regard to jural. Relationship of employee and employer between appellant and first respondent herein. According to appellant, he was working as labourer and the lorry belongs to the first respondent herein and he was getting a salary of Rs.3,000/- per month. To prove the same, the appellant relied on his evidence only. He has not produced any proof to show that he was getting a salary of Rs.3,000/- per month from first respondent herein.
In the cross-examination, he deposed that he is monthly labourer working under the first respondent herein. He denied the suggestion that R.1 was not paying Rs.3,000/- as salary. He stated that he is not a monthly labourer working under R.2.
There is absolutely no other evidence to prove the income of the appellant. As there is no positive evidence with regard to the salary or income of the injured, lower authority has fixed his monthly income on the basis of his profession. Assistant Commissioner of labour took Rs.1800/- as salary of labour in the year 1998. Though appellant contended that the Assistant Commissioner of Labour was wrong in taking Rs.1800/- per month, he failed to produce any material to show that the charges of labourer were more than Rs.1800/- per month as on the date of accident.
On a scrutiny of material, I do not find any wrong in the order of the Assistant Commissioner of labour in taking Rs.1800/- per month as a probable income of the applicant as a labourer.
The next objection of the appellant is that Assistant Commissioner of labour erred in not taking functional disability at 100%. Medical Officer who issued the Disability Certificate is examined as P.W.2 and he deposed that during physical and clinical examination, he assessed the physical and functional disability of injury at 30% and loss of earning capacity would also be 30%. In the cross-examination, he deposed that he is one of the member of the Medical Board which is competent to assess the medical disability. When the Medical Officer clearly deposed that functional disability is only 30% without any further material, the claim of the appellant for 100% functional disability cannot be accepted and I do not find any wrong in the order of the Assistant Commissioner of Labour in taking disability at 30%. Therefore, the objection of appellant is not tenable.
Now the last contention of the advocate for appellant is that lower authority has not granted any interest though as per the Act, applicant is entitled for interest.
As seen from the order, the lower authority has not granted any interest. Honourable Supreme Court in SABERABIBI YAKUBBHAI SHAIKH AND OTHERS Versus NATIONAL INSRUANCE COMPANY LIMITED
[1]
AND OTHERS ( ) held that interest has to be granted
from the date of accident till the date of deposit.
So considering the same, applicant is entitled for interest at 9% per annum from the date of accident till the date of deposit on the compensation arrived by the Assistant Commissioner of Labour.
For these reasons, appeal is partly allowed granting interest at 9% p.a., on the awarded amount from the date of accident i.e., 25-3-1998, till the date of deposit and the Insurance Company has to deposit the difference amount by calculating the interest within 30 days from the date of receipt of copy of this order.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 31-12-2014.
Dvs HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.1634 OF 2004 Dated 31-12-2014 Dvs
[1] (2014) 2 SCC 298