The appellant/second opposite party has filed this civil miscellaneous appeal No.1033 of 2005 against the award passed in W.C.No.379 of 2003 dated 24.01.2005 by the Workmen Compensation Commissioner, Salem, awarding a compensation of Rs.1,84,321/-.
2. The respondent/applicant has filed a claim petition claiming a total compensation of Rs.5,00,000/. The Tribunal had awarded a compensation of Rs.1,84,321/-. Aggrieved by the said order, the appellant/United India Insurance Company Limited has filed this appeal and challenged the quantum of compensation.
3. The short facts of the case is as follows;-
The applicant was employed as a driver by the first opposite party in his bus bearing registration No.KA 03 C 7899. On 24.01.2002, at about 02.45 a.m. the applicant was driving the above mentioned bus on the Bangalore to Madras road. When the bus was nearing Pallikonda, Vellore District, the bus hit against the bridge and the bus capsized. The accident happened during the course of his employment with the first opposite party. Due to the accident, the applicant had suffered multiple fractures and grievous injuries all over his body. The applicant took treatment in Government Hospital at Vellore and Subsequently, he was admitted as inpatient at the Gopi Hospital, Salem and operation was performed to set right, his fractures and injuries. The applicant was aged only 35 years at the time of the accident. As a result of the accident, the applicant is suffering from 100% permanent disability and is not able to do any work. His whole future is put in darkness.
4. The monthly salary of the applicant was Rs.4,500/. In addition, the first opposite party paid Rs.5,000/- as festival bonus. The applicant is the sole breadwinner of his family and they are depending only on his income. The first opposite party is the owner of the bus bearing registration No.KA 03 C 7899 and the second opposite party is the insurer of the above said bus. Hence, both the opposite parties are jointly and severally held liable to pay a compensation of Rs.5,00,000/-
5. The second opposite party in his counter has denied all the allegations made by the applicant. It was further contended that in the said accident, the applicant has sustained only simple injuries and recovered completely and attending his work normally as before the accident. The applicant has further asked to prove injuries sustained by him by way of documentary evidence. Further, it was claimed that there was no employer/employee relationship between the applicant and the first opposite party and hence the second opposite party is not liable to pay any compensation to him. Further, the age, income of applicant was denied. Further, the amount claimed by applicant is excessive and that the applicant is not entitled for it. Hence it was prayed that the petition should be dismissed with costs.
6. The first opposite party was absent and set exparte. The workmen compensation commissioner perused the claim petition and the counter filed by the second opposite party and recorded oral and documentary evidence on both sides. Further, the applicant was examined as PW1, and the Doctor, V.Muthusamy was examined as PW2, and their statements were recorded. No witness was examined from the opposite party's side and no documents were furnished. On the applicant's side, documents Ex.P1 to Ex.P8 were marked as exhibits. The Commissioner framed five issues to be decided namely;
1) Whether the accident happened while the applicant was a driver under the employment of the first opposite party?
2) What was the age and salary of the applicant at the time of accident?
3) What was the extent of disability sustained by the applicant due to the accident?
4) What is the compensation amount which the applicant is entitled for? And
5) Who is liable to pay the compensation?
7. PW1 in his evidence has deposed the same statements that he had made in his petition. To prove the same, he furnished Ex.P1, the first information report and Ex.P4 and Ex.P5, the wound certificate issued by Gopi Hospital, Salem and the discharge summary respectively. From the inspection and scrutiny of the oral and documentary evidence, it was concluded that the applicant was a driver under the employment of the first opposite party and that he had sustained the injury during the period of employment.
8. From an examination of Ex.P3, driving licence of applicant, it was established that the age of the applicant was 32 at the time of accident. But, the applicant has not filed any documentary proof regarding salary. Hence, the applicant's salary was fixed at Rs.3,014/- as per the Tamil Nadu Government Minimum Wages Act.
9. From PW2, Dr.V.Muthusamy in his evidence had submitted that he had examined the applicant on 20.12.2004. He has found that the applicant had suffered fractures in his spinal cord and because of this there will be permanent pain and that the applicant cannot bend his body in front and touch the floor. Further, the pain on movements extends to his lower leg joints as well and that two bones in the leg had also been fractured and that the disability sustained by the applicant is 35% and accordingly the doctor had given the disability certificate, which is Ex.P6. So, the Commissioner after inspection and considering the nature of the applicant's employment, fixed the income loss due to disability as 50%. Based on the above, the compensation was arrived as under;
Age- 32, (factor)Karani-203.85, Monthly income- Rs.3014/-, disability percentage- 50% = 60/100 X 3014 X 203.85 X 50/100 = Rs.1,84,321/-
10. Further, the Commissioner decided that as the applicant was the driver of the bus owned by the first opposite party and as the said bus was insured with the second opposite party, the second opposite party is liable to pay the compensation. Hence, the Workmen Compensation Commissioner awarded a compensation of Rs.1,84,321/- to be paid to the applicant by the second opposite party within 30 days on failure to do so an interest of 9% per annum should be paid on the compensation awarded from the date of accident till the date of deposit of claim into the credit of W.C.No.379 of 2003 on the file of the Deputy Commissioner of Labour at Salem. There was no order as to costs.
11. The appellant, aggrieved by this award, filed the civil miscellaneous appeal in C.M.A.No.1033 of 2005.
12. The learned counsel for the appellant has argued that the learned Commissioner had overlooked the fact that except Ex.P4 (Wound Certificate) and Ex.P5, discharge summary, no other document was filed to prove the nature of injuries and the period of treatment undergone by applicant. The learned Commissioner had also overlooked the fact that PW2, Doctor had assessed the disability of the petitioner at 35%, but the learned Commissioner had assessed that the earning capacity of applicant has come down by 50%. Hence, the learned Commissioner had completely overlooked provisions of
Section 4 of the Workmen's Compensation Act while computing compensation. Further, the learned Commissioner's fixing of salary of applicant as Rs.3014 per month was erroneous as there was no material evidence with regard to employment and income of the applicant. As such, the appellant contends that the award of the learned Commissioner is erroneous and is liable to be set aside.
13. The learned counsel for the respondent submitted that the learned Commissioner passed the award on the basis of the evidence regarding disability, the doctor also had adduced evidence and certified that the applicant sustained injuries and that in the result, he has a disability of 35%. This was not overlooked by the learned Commissioner as alleged by the appellant's counsel. The learned Commissioners findings that the earning capacity of the applicant has come down by 50% is reasonable and the award passed by the learned Commissioner is a well considered and meritorious one.
14. For the foregoing reasons and on consideration of the facts and circumstances of the case, this Court opines that qualified doctor had issued the disability of applicant as 35% and he had also adduced evidence in support of the above. This is purely on medical ground; but the Commissioner had not overlooked the disability certificate of the doctor. The Commissioner has come to a conclusion, after seeing the physical condition of the applicant and after consideration of the nature of work he was doing when the accident took place i.e. as a driver, had felt that his earning capacity has come down by 50%. This observation of the Commissioner cannot be held erroneous. The monthly income of the applicant was fixed by the Commissioner as Rs.3014/- per month. During the course of employment of the applicant as a driver under the first opposite party i.e. employee/employer relationship has been well established. The accident happened in the year 2002, so the income of the driver was fixed at Rs.3014/- on the basis of Tamil Nadu Government Minimum Wages Act and therefore, it is reasonable.
15. Considering all the above facts, the Commissioner has come to a fair conclusion on the basis of doctor's certificate, evidence, applicant age, income and nature of employment. The Court cannot find any discrepancy in the award passed by the Commissioner of Labour, Salem in W.C.No.379 of 2003 dated 24.01.2005.
16. Already the appellant has deposited the entire compensation amount into the credit of W.C.No.379 of 2003, on the file of Commissioner of Labour, Salem, as per the order of this Court dated 06.04.2005 in C.M.P.No.5866 of 2005. Further the Court permitted the applicant to withdraw half of the compensation amount which has been deposited in W.C.No.379 of 2003. It is open to the first respondent/applicant to receive the balance amount lying to the credit of W.C.No.379 of 2003 on the file of the Workmen's Compensation Commissioner of Labour, Salem by filing necessary payment out application in accordance with law. Resultantly, the civil miscellaneous appeal is dismissed and the order passed by the Workmen's Compensation Commissioner of Labour, Salem is confirmed. The parties are directed to bear their own costs in this appeal.
JIKR To The Workmen Commissioner Court/Workmen Compensation Commissioner, Salem