HONOURABLE SRI JUSTICE S.RAVI KUMAR C.M.A.No.4243 of 2003 Dated 16-10-2014 Between:
Pandi Madhu.
..Petitioner.
And:
M/s. Naveen Transport, Represented by its Proprietor, Shop No.1, CIE Balanagar, Hyderabad and others.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR C.M.A.No.4243 of 2003 ORDER:
This appeal is preferred against orders of the Assistant Commissioner of Labour, Circle II Ranga Reddy District in W.C.No.1 of 1999 whereunder he granted a sum of Rs.54,017/- as against claim of Rs.1,10,000/-.
Brief facts leading to this appeal are as follows:
Appellant herein was working as driver of lorry bearing No.AIB 4842 belonging to 3rd respondent herein, on 22-9-1994, the appellant was driving the lorry and when the lorry reached near Maddipadu village, he lost control over the vehicle and dashed against lorry bearing No.APG 4553, for which, he sustained injuries besides fractures. He was getting Rs.1500/- as monthly wages and he was aged about 42 years and he claimed a sum of Rs.1,10,000/-.
Opposite party resisted claim. During enquiry, Assistant Commissioner of Labour examined claimant as P.W.1 and marked Ex.A.1 to A.6 on behalf of claimant and Ex.B.1 on behalf of opposite party No.2 and fixed compensation of Rs.54,017/- by taking loss of earning capacity as 30% relying on the Disability Certificate, as against the claim of Rs.1,10,000/-.
Now aggrieved by the same, present appeal is preferred.
Heard both sides.
Advocate for appellant mainly contended that appellant being driver when he lost vision of one eye, the lower court ought to have taken the Disability of 100% and ought to have granted the claim of amount as claimed by the appellant. To support his submissions, advocate for appellant relied on two rulings of this court in JIGENDER SINGH Vs. B. SHESHAGIRI RAO AND SONS LTD., and ANR. (CMA No.1933 of 2000) and N.SREE RAMULU @ SREE RAMA MURTHY v. B. LAKSHMI NARAYANA AND
[1]
ANOTHER ( ) that 30% disability has to be treated as
100% disability.
On the other hand, learned counsel for Insurance Company contended that as per Schedule I, Serial No.26, the percentage of loss of earning capacity has to be taken as 30% for loss of vision of one eye, without complications or disfigurement of eye ball and Assistant Commissioner has rightly applied this provision in fixing the compensation. He further submitted that according to Section 4(c) (i), in case of injury specified in part II of Schedule I, the disablement as specified therein is the percentage of loss of earning has to be taken.
In reply to this argument, advocate for appellant submitted that as per Section 2 (l), the present disablement has to be treated as total disablement.
Now the point that would arise for my consideration in this appeal is whether the order of the Assistant Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour Circle-II, Ranga Reddy District, Hyderabad, in W.C.No.1 of 1999, is legal, correct and proper?
POINT:
There is no dispute with regard to accident. There is also no dispute with regard to percentage of disability assessed by Sarojini Devi Eye Hospital.
As seen from the record, Ex.A.4 is the Disability Certificate issued by Sarojinidevi Hospital, according to which, disability is 30% and appellant lost sight of his right eye.
Now the contention of the appellant is that this aspect has to be taken as total disablement under Section 2(l). It is useful to refer Section 2(l) of Workmen Compensation Act, which reads as follows:
“ “Total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement”.
(Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;) Plain reading of this Section would reveal disablement which incapacitates a workman for all work which he was capable of performing at the time of accident has to be treated as total disablement. There is a proviso given for the definition which clearly indicates that the permanent total disablement was the disablement specified in part 1 of Schedule I or from any combination of injuries specified in part II thereon.
Therefore, this definition is subject to the percentage given in the part I and part 2 of Schedule I. Now in the first decision relied on by the counsel for appellant, there was evidence of doctor who is examined as P.W.3 and considering the same, this court has not accepted the Disability of 30% taken by the Assistant Commissioner of Labour and treated it as total Disability.
But in our case, except marking the document as Ex.A.4, no doctor is examined. So far as decision (N.SREE RAMULU @ SREE RAMA MURTHY v. B. LAKSHMI NARAYANA AND ANOTHER) 1st cited is concerned, it is in respect of definition under Section 2(1) (g), 2(1) (l) and 4. But as already referred above, Section 2 (l) is subject to percentage given in the schedule I and II of the Act as per proviso to the said definition. Even in this decision (JIGENDER SINGH Vs.
B. SHESHAGIRI RAO AND SONS LTD., and ANR. (CMA
No.1933 of 2000) also, basing on the evidence of Medical Officer who is examined as A.W.2 and in all batch cases, Medical Officer is examined and considering medical evidence, court has deferred with the percentage of disability recorded by the Assistant Commissioner of Labour.
But here, in our case, as already referred above, the Medical Officer is not examined. As per Disability Certificate, only 30% disability is recorded and Schedule 1, part II, serial No.26 specifically states that the percentage of loss in case of loss of one eye, without complications or disfigurement of eye-ball, is only 30%. From the document Ex.A.4 only, loss of vision of one eye is there and there are no complications or disfigurement of eye-ball. Therefore, decisions relied on by the counsel for appellant have no application to the facts of the case. On a scrutiny of the material, I am of the view that Assistant Commissioner of Labour I, has rightly taken 30% as loss of earning capacity while fixing compensation. Further as seen from the record, though claimant contended that he is getting only Rs.1500/- as driver, the Assistant Commissioner of Labour by considering the minimum wages took wages as 1650/- per month and calculated the compensation.
On a scrutiny of the material, I am of the view that there are no grounds to interfere with the orders of the Assistant Commissioner of Labour and as such, this appeal is liable to be dismissed.
Accordingly, this C.M.A. is dismissed.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 16-10-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs C.M.A.No.4243 of 2003 Dated 16-10-2014
[1] 2013 (5) ALD 249