This Civil Miscellaneous Appeal has been filed by the appellant against the award, dated 23.07.2007 made in W.C.No.202 of 2005, on the file of the Deputy Commissioner of Labour, Dindigul.
2.The brief facts of the case is as follows:
The claimant was working as a Mini door vehicle driver bearing Registration No.TN-57-V-3273, he was earning a sum of Rs.3000/- per month. On 27.04.2005 around 7.00. a.m. while he was driving a vehicle from Dindigul, Mettupatti to Vanganuthu via, when he was crossing the Jambuliyapatti from west to east, a lorry coming from east to west in a rash and negligent manner, dashed against the said claimant, due to the accident, he sustained injuries all over the body and also fractures in both legs and hands. He was admitted in the Dindigul Hospital, at later point of time he has taken treatment in the private hospital as inpatient. Due to the accident, he sustained permanent disability and not able to work. Hence he filed a claim petition before the Deputy Commissioner of Labour, Dindigul in W.C.No.202 of 2005, sought compensation of Rs.13,60,000/- but he restricted the same by Rs.6,00,000/- and fixed the liability on the first and second respondents and claimed a sum of Rs.1,87,137/- with interest at 12% per annum.
3.The appellant/The Oriental Insurance Company Limited filed a counter- affidavit and denied all the averments stated by the claimant. The second respondent contended that the petitioner should prove that he was a driver under the first respondent on 27.04.2005 and also prove that the alleged injuries sustained during the course of his employment. He denied the age and salary as stated in the petition. The petitioner should produce the original salary receipts received from the first respondent for the previous months and should prove the age through relevant documents. He further contended that in order to get compensation, he has given his age as 28 and the petitioner should produce the original medical records to prove his alleged injuries, and the disability as assessed by the doctor was subject to reference with the concerned medical board. They further submitted that as per Section 10 of the W.C.Act, notice has not been sent to the respondent and hence they are not able to pay compensation to the petitioner. The first respondent was colluding with the petitioner and remained ex-parte in the proceedings. As per F.I.R, the ownership has been suppressed. They further contended that as per policy only two persons can be travelled in the first respondent's vehicle, but at the time of the alleged occurrence 4 persons had travelled in the vehicle. The first respondent has used his vehicle against the policy condition.
4.The second respondent/The Oriental Insurance Company Limited has also filed the additional counter affidavit at later point of time and they reiterated the stand taken in the previous counter.
5.Before the Deputy Commissioner of Labour, Dindigul, on the side of the petitioner, the petitioner himself was examined as P.W.1 and Dr.R.Vijayakumar was examined as P.W.2 and seven documents viz., Exs.P.1 to P.7 were marked and on the side of the respondents, two witnesses were examined as R.W.1 and R.W.2 and two documents viz., Ex.R.1 and R.2 were marked.
6.The Commissioner for Workmen's Compensation, after discussing the evidence and documents on record, held that with regard to the earning capacity of the claimant, directed the second appellant/Oriental Insurance Company Limited to pay a sum of Rs.1,87,137/- as compensation to the claimant as per the following formula:
7.Against the award, the appellant/Oriental Insurance Company has filed the present Civil Miscellaneous Appeal.
8.Heard the learned counsel appearing for the appellant. Though the name of the respondent printed in the cause list, there was no appearance on their side and perused the materials available on record.
9.The learned counsel for the appellant/Oriental Insurance Company has submitted that the Tribunal has failed to consider the oral and documentary evidence in a proper perspective and failed to see that the P.W.2-Doctor has spoken only the partial permanent disability to the extent of 37% and whereas the authority has taken the same was professional disability.
10.He further submitted that only two persons can be travelled as per the policy condition but the Tribunal failed to see that at the time of accident four persons have travelled in the offending vehicle and as such violated the policy condition, this aspect has completely omitted by the authority. The Tribunal failed to see that the accident was occurred on 27.04.2005 and the first respondent has renewed his licence on 04.10.2005 which would clearly show that the first respondent has the capacity to drive the vehicle and the Regional Transport authorities has renewed the licence till 16.10.2008 and as such the first respondent has not suffered any professional disability much less permanent disability and the nature of fracture is curable one and the first respondent has regain his ability to the original position and as such the first respondent has not suffered any monetary loss much less the loss of earning capacity.
11. On perusal of the documents, it is seen that the accident occurred on 27.04.2005 and due to the accident the claimant sustained fractures on his two knees and hands, the doctor has certified 37% disability, which was marked as Ex.P6 and wound certificate marked as Ex.P2. From the F.I.R, which was marked as Ex.P.1 would clearly reveal that on 27.04.2005 at around 7.00.a.m. while he was driving a vehicle from Dindigul Mettupatti to Vanganuthu via, when he was crossing Jambuliyapatti from west to east, a lorry coming from east to west in a rash and negligent manner dashed against the said claimant, due to the accident, he sustained injuries, fractures in both legs and hands and sustained injuries all over the body has been proved.
12.P.W.1 deposed that the first respondent has not stated that the petitioner was not employed under him, he has produced Ex.P1-F.I.R; Ex.P2- Wound Certificate and also the second respondent/Oriental Insurance Company has not produced any documents with regard to the petitioner employment under the first respondent.
13.From the evidence of P.W.2-Dr.R.Vijayakumar, it is seen that the petitioner sustained fracture in the right leg tibia, from the X-ray it would seen that it has been joined in the deformed condition, hence he had problem for working and sitting in the floor and also problem for doing daily regular work, hence he certified 37% of disability. In the cross examination also he deposed that he could not be able to go for any driving job and could not be able to sit for a long time, this job can be done only some difficulties. This evidence would clearly reveal that the claim of the petitioner was proved beyond doubt.
14.From the evidence of R.W.1-C.Parameswara Moorthy, Junior Assistant, Regional Transport Office, Dindigul, it is seen that the driving license was renewed from 04.10.2005 to 16.10.2008, even though his license period getting over on 16.10.2008. After following the normal procedure, they have renewed the license, but the petitioner has only produced xerox copy of the same. He also submitted that normally while renewing the driving licence they do not ask to drive the vehicle.
15.From the evidence of R.W.2 would submit that two persons can travel as per the policy condition but at the time of accident four persons have travelled in the offending vehicle and as such violated the policy condition and hence, they have not liable to pay any compensation. In the cross examination he would submit that the policy was in existence at the time of the accident, as per policy they are liable to pay, and would further submit that since violation of the policy condition, the Insurance Company need not pay any amount as compensation.
16.From the evidence of P.W.1 it is seen that the petitioner was working as a driver with the first respondent's vehicle and even though he did not produce any document that he was working as a driver, there was no objection raised regarding the same by the second respondent and hence he has been treated as a workman under the first respondent by the Tribunal, which this Court finds as correct as there was no contra evidence has been produced by the respondent.
17.From the evidence of R.W.1-Regional Transport Official, it is seen that even though there was a renewal of license by the driver, he has not produced any evidence to show that at that point of time who was driving the vehicle.
18.On the basis of the oral and documentary evidence, the Tribunal has come to the conclusion that the appellant/Insurance Company is liable to pay the compensation to the claimant. For the loss of earning capacity or any income which was not contradicted by the Insurance Company since the Doctor has certified 37% of disability, which was not proved by the Insurance Company that he was not working as a driver, this Court need not take into account that the order of the Tribunal is not sustainable. Taking his date of birth is 10.02.1998, the Tribunal has taken his age was 27, based on the licence, Rs.3466/- has been fixed as per the Minimum Wages Act G.O.Ms.No.2(d)27 ? Workmen and Employment Department, dated 01.08.2003 and dearness allowance fixed as Rs.481/-. In total, Rs.3947/- has been fixed as monthly salary and taken his disability fracture as 37% and totally fixed Rs.1,87,137/- as compensation with 12% interest.
19.Hence, this Court do not find any infirmity or illegality in the award passed by the Deputy Commissioner of Labour, Dindigul and this Court confirms the order passed by the Tribunal.
20.In the result, this Civil Miscellaneous Appeal is dismissed and the award, dated 23.07.2007 made in W.C.No.202 of 2005, on the file of the Deputy Commissioner of Labour, Dindigul is hereby confirmed. The claimant/ first respondent is entitled to withdraw the entire amount deposited before the Deputy Commissioner of Labour, Dindigul to the credit of W.C.No. 202 of 2005 after filing formal petition. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Deputy Commissioner of Labour, Dindigul.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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