HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.1835 OF 2004 Dated 10-12-2014 Between:
United India Insurance Company Limited, Gun Foundry, Abids, Hyderabad.
And:
...Appellant.
Sri Saidulu Goud and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.1835 OF 2004 JUDGMENT:
This appeal is preferred against orders dated 10-5- 2004 in W.C.No.130 of 2003 on the file of Assistant Commissioner of Labour, Hyderabad-II who is the Commissioner for Workmen’s Compensation whereunder the Commissioner granted Rs.1,12,706/- as compensation for the injuries sustained by second respondent herein.
Brief facts leading to this appeal are as follows:
First respondent herein filed a claim application before Assistant Commissioner of Labour, Hyderabad-II alleging that he is a driver of auto bearing No.A.P.24T 9902 and on16-2-2003, at about 9 A.M., while he was proceeding from Podepally village towards Chitriyala Gutta, he lost control of the vehicle, as a result, auto turned turtle and he sustained grievous fracture injuries and that he used to receive Rs.3,500/- per month as salary + Rs.50/- per day as batta and entitled for a sum of Rs.3,00,000/-. After due enquiry, lower authority granted Rs.1,12,706/- as compensation. Aggrieved by the same, present appeal is filed.
Heard arguments.
The main objection of Insurance Company is that the applicant failed to prove that there is a relationship of employee and employer between himself and second respondent herein and the lower authority without any evidence, accepted relationship and granted compensation.
The other grounds urged on behalf of Insurance Company is that the lower authority failed to appreciate evidence of R.W.1 who was examined on behalf of Insurance Company and who specifically deposed that there is no disability to the applicant and injuries were completely healed and lower authority erroneously fixed disability at 30% and same has to be reduced.
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 the accident that took place on 16-2-2003. According to appellant, there is no relationship of employee and employer between respondents 1 and 2 herein and therefore, first respondent is not entitled for any compensation.
As seen from the record, the second respondent filed a counter before the lower authority admitting that he employed first respondent herein as driver on his auto bearing No.A.P.24T 9902, about six months prior to the accident and was paying Rs.3,500/- per month as salary besides Rs.50/- batta. The applicant is examined as A.W.1 and he asserted that he was employed by second respondent herein as driver. Though he was cross- examined on behalf of Insurance Company, nothing could be elicited from him to discredit his testimony with regard to relationship of employee and employer. Except putting suggestions to the applicant that he was not employee by second respondent herein, nothing is elicited to substantiate the defence. The lower authority considered the recitals of F.I.R. wherein the applicant was referred as driver of second respondent herein which recital is supported and corroborated with the counter averments of second respondent herein.
I do not find any wrong appreciation of evidence by the lower authority with regard to the relationship of employee and employer and therefore, the objection of Insurance Company on this aspect is not at all tenable.
Coming to the quantum of compensation, according to Insurance Company, the Disability fixed by lower authority at 30% is not proper because Medical Office who is examined on behalf of Insurance Company as R.W.1 clearly deposed that all the injuries were healed and there is no disability of any kind.
As seen from the record, on behalf of claimant, doctor is examined as P.W.2 and he deposed that he issued a Disability Certificate and he is a qualified orthopedic surgeon and practicing both at Hyderabad and Secunderabad and according to him, the estimated disability is 40%.
With reference to evidence of P.W.2, advocate for appellant submitted that the Disability Certificate is not issued by the Board constituted under the Government and the Medical Officer who was examined on behalf of Insurance Company as R.W.1 clearly stated that he is a Orthopedic Surgeon having 12 years experience who on examination of applicant stated that injuries were healed and only conservative treatment was given. As seen from the evidence, he has stated above facts after verifying x rays of the applicant from which the fact remains that injuries are healed and there is no disability as assessed by P.W.2. Therefore, considering the evidence of P.W.2 and R.W.1, I feel that lower authority is not right in fixing the disability at 30% and considering the evidence of R.W.1 and the nature of injuries mentioned in para 2 of schedule I, I feel that disability can be taken as 15% only and on that basis, the compensation has to be modified.
If calculation is made by taking disability at 15%, it comes to Rs.56,853/- (Rs.2,821.5 x 60/100 x 219.95 x 15/100 = Rs.56,853/-).
Accordingly, this Civil Miscellaneous Appeal is partly allowed reducing the compensation to Rs.56,853/- amount by taking the disability at 15%.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 10-12-2014.
Dvs HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.1835 OF 2004 Dated 10-12-2014 Dvs