HONOURABLE SRI JUSTICE S.RAVI KUMAR C.M.A.No.3209 of 2003
Dated 17-10-2014
Between:
United India Insurance Company Limited represented by its Divisional Office-XI, Tirumala Towers, Malakpet, Hyderabad.
And:
M.Jayaraj and another.
..Appellant.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR C.M.A.No.3209 of 2003
JUDGMENT:
This appeal is against order of the Assistant Commissioner of Labour-III, Hyderabad dated 10-4-2003 in W.C.No.52 of 2002.
Appellant herein is Insurance Company. Brief facts leading to appeal are as follows:
First respondent herein filed application before Assistant Commissioner of Labour-III, Hyderabad claiming compensation under provisions of Workmen’s Compensation Act (hereinafter referred to as “the Act”) for the injury sustained during the course of employment. It is contended that he suffered loss of earning capacity while working as car driver under second respondent herein. According to claimant, on 18-9-2002, at about 1-30 P.M., he along with one P.Selwaraj was proceeding in the car bearing No.AP 23 T 4588 and when the car reached near NCB Bhavan, beat No.1, one lorry bearing No.AP 28 U 9321 came in opposite direction in a rash and negligent manner with high speed and dashed against car, due to which, he sustained grievous injury and fracture and he was shifted to Usmania General Hospital, Hyderabad. It is further contended that he received fracture injury on the right leg besides injury over body and the car was insured with appellant and the claimant claimed a sum of Rs.5,00,000/- as compensation.
On these allegations, Assistant Commissioner of Labour, conducted enquiry during which, two witnesses are examined on behalf of claimant besides marking 16 documents. On behalf of owner, R.W.1 is examined and four documents are marked. On behalf of Insurance Company, no witness is examined but the policy is marked as Ex.D.5. On an overall consideration of material, Assistant Commissioner of Labour granted Rs.2,75,968/- taking disability at 80% and aggrieved by the same, Insurance Company preferred the present appeal.
Heard both sides.
Learned counsel for appellant submitted that when the document Ex.A.3 which is Discharge Ticket of Usmania General Hospital do not refer to any disability and the disability certificate produced on behalf of claimant, would disclose only 40% disability but lower court took loss of earning capacity at 80% and the same is incorrect.
On the other hand, learned counsel for claimant submitted that Medical Officer is examined on behalf of claimant as A.W.2 and the court below taking the profession of claimant considered the injury as 80% of disability and the lower court has given convincing reasons in para 27 of its order and that there are no grounds to interfere with the order of the lower court.
Learned counsel for appellant relied on a decision of Honourable Supreme Court in ORIENTAL INSURANCE COMPANY LIMITED Vs. MOHD.NASIR AND ANOTHER
[1]
( ) and counsel for claimant relied on a decision of this court in N.SREE RAMULU AND OTHERS Vs. B.LAKSHMI NARAYANA (DIED) AND OTHERS. (CM.A.No.856 OF 2003 DECIDED ON 24-4-2013).
Now the point that would arise for my consideration in this appeal is whether the order of the Assistant Commissioner of Labour-III, Hyderabad dated 10-4-2003 in W.C.No.52 of 2002, is legal, correct and proper?
POINT:
There is no dispute with regard to relationship between the parties and also about accident that occurred on 18-9-2002. The only dispute is with regard to percentage that was taken into consideration by the lower court. No doubt, in the Disability Certificate, the Medical Officer who issued Disability Certificate assessed the disability at 40%.
Admittedly, claimant is a driver and the injury caused to him is to his right leg. Considering this aspect and also evidence of A.W.2, a competent Orthopedic surgeon, the trial court observed that the deformity of the applicant as certified by the Doctor is Mal union of right tibia and fibula and there was 1 ½ inch shortening of the right leg.
The Medical Officer who was examined as A.W.2 deposed in his evidence that the claimant cannot walk without the help of a walker and he cannot sit and squat and cannot drive a vehicle in future in view of the nature of injury and further deposed that the injury is permanent and partial. Considering this, learned Assistant Commissioner of Labour, fixed the loss of earning capacity at 80% but Disability Certificate quantified disability at 40%.
ORIENTAL INSURANCE COMPANY LIMITED Vs.
MOHD.NASIR AND ANOTHER (1st cited) relied on by the appellant, the Honourable Supreme Court found fault with the disability taken by the court below at 100% loss of earning capacity though the Disability Certificate was only 15% on the ground that there was no evidence from a qualified Medical Practitioner and opined that the injury was permanent and complete loss of leg and that the victim was rendered totally unfit to work as driver.
But here in our case, there is evidence of Medical Officer who clearly deposed that the claimant was unfit to drive vehicle on account of injury and that he cannot walk without the help of walker and he can not sit and squat.
Though this doctor was cross-examined on behalf of Insurance Company, nothing was elicited from him to discard his opinion in respect of claimant’s disability. Except putting suggestions to the doctor, nothing was elicited from him to doubt his testimony with regard to assessment of claimant’s future prospectus to work as driver and therefore, decision relied on by appellant cannot be applied to this case, particularly, in view of the evidence of Medical Officer.
I n N.SREE RAMULU AND OTHERS Vs. B.LAKSHMI NARAYANA (DIED) AND OTHERS. (CM.A.No.856 OF 2003 DECIDED ON 24-4-
2013), this court while dealing with disability of a workman, by considering the decisions of the Honourable Supreme Court, quoted certain principles which are as follows:
(a) All injuries or permanent disabilities arising from injuries do not result in loss of earning capacity.
(b) Where permanent partial disablement results from an injury and the said injury is specified in Schedule I, it would be covered by Section 4(1)(c)(i) of the Act. In such a case, the workman would be entitled to such percentage of compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury;
(c) Where permanent partial disablement results from an injury and the injury is not specified in Schedule I, it would be covered by Section 4(1) (c) (ii) of the Act. In such a case, the workman would be entitled to such percentage of compensation which would have been payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.
(d) In assessing loss of earning capacity in a case of permanent partial disablement resulting from an injury not specified in the Schedule I, the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.
Considering these principles, 40% Disability Certificate by the Doctor was not accepted and the loss of earning capacity was taken as 100% in view of the nature of injury and nature of profession of claimant.
The principles referred to above squarely applies to this case and when there is medical evidence showing the claimant cannot sit and squat and cannot drive the vehicle in future, the Assistant Commissioner of Labour was right in fixing the loss of earning capacity at 80% though the Disability Certificate was only for 40%.
For these reasons, I am of the view that there are no merits in the appeal and the learned Assistant Commissioner has rightly assessed compensation considering the gravity of the injury and nature of profession of the claimant.
This C.M.A. is accordingly dismissed confirming the order of the Assistant Commissioner of Labour-III, Hyderabad dated 10-4-2003 in W.C.No.52 of 2002.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR
Dated 17-10-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR
Dvs
C.M.A.No.3209 of 2003 Dated 17-10-2014
[1] (2009) 6 SUPREME COURT CASES 280