Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 2284 (MAD)

V. Sekar v. Afcons Chennai

2010-06-08

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. The appeal is preferred by the claimant/appellant against the order dated 22.12.2000 passed in W.C.No.290 of 1999 on the file of the Commissioner for Workmens Compensation-II, Chennai-6 and when the appeal came up for admission on 01.02.2002, it is admitted on the following questions of law. a) Whether the Commissioner for Workmens Compensation – II has power to reduce the percentage of disability and fix the same as 50%, when the Doctors fix the same as 70%? b) Whether the Commissioner for Workmens Compensation-II ought not to have awarded interest at the rate of 6% p.a. from the date of accident under Sec.4A (3) of W.C. Act when the award was passed on merit. 2. Background facts in a nutshell are as follows: The appellant/claimant was working as labour in Afcons Pauling Joint Venture Company. On 26.09.1994 at about 1.15 p.m., during the course of the employment, the appellant /claimant sustained the following grievous injuries: i) Fracture left side Acetabeli ii)Fracture both public femus right side iii)Multiple injuries all over the body Immediately the appellant was admitted in Chenglepattu Medical College Hospital for treatment and then he was treated as inpatient from 26.09.1994 to 06.10.1994. Later he was taken treatment in Nambi Nursing Home and Poly Clinic, Chenglepattu. The claimant/appellant filed the claim petition claiming a sum of Rs.73,472/-. The respondents resisted the claim. On pleadings the Commissioner framed the following issues:- "1. Whether the accident had occurred during the course of the applicants employment. 2. What is the age and salary of the claimant? 3. What is the percentage of loss of earning power of the claimant? 4. What is the compensation, the claimant is entitled to? 5. Who is liable to pay the compensation? After considering the oral and documentary evidence, the Commissioner has awarded a compensation of Rs.52,480/- and also further directed the Insurance Company to deposit the said amount of Rs.52,480/-with interest at 6% p.a. within twenty days from the date of receipt of the order. Aggrieved by that order, the claimant filed the present appeal for enhancement. 3. The learned counsel appearing for the appellant contended that the Commissioner ought not to have reduced the disability from 70% to 50%. The Commissioner should have accepted the disability as claimed by the appellant. Aggrieved by that order, the claimant filed the present appeal for enhancement. 3. The learned counsel appearing for the appellant contended that the Commissioner ought not to have reduced the disability from 70% to 50%. The Commissioner should have accepted the disability as claimed by the appellant. Further the learned counsel appearing for the claimant/appellant submitted that the claimant is entitled to the interest from the date of the accident and not from the date of receipt of the order. Therefore, the order passed by the Commissioner has to be set aside and it is a fit case for enhancement. 4. The learned counsel appearing for the respondents submitted that the Commissioner had considered the facts and circumstances of the case and awarded the compensation and the finding made by the Commissioner was based on valid materials and evidence and also in accordance with law. He further submitted that the Commissioner has rightly rejected the claim in respect of the interest from the date of accident. Therefore, the order of the Commissioner is in accordance with law and the same has to be confirmed. 5. Heard the learned counsel on either side and perused the materials available on record. The claimant himself examined as AW1. Exs.A1 to A5 were marked. Ex.A.1 is the discharge summary issued by Chenglepet Medical College Hospital. Ex.A2 is the Out patient case sheet. Ex.A3 is the Transfer certificate. Ex.A4 is the photo copy of Identity card. Ex.A5 is the Disability certificate. On the side of the respondents, no witness was examined and Exs.R1 and R2 were marked. Ex.R1 is the Insurance Policy. Ex.R2 is the Medical Report. After considering the oral and documentary evidence, the Commissioner had given a categorical finding that the accident had occurred only during the course of the employment and awarded a compensation. The Commissioner computed the compensation as follows: Age Factor for 29 years : 209.92 Wages : Rs.1000/- Percentage of disability : 50% Compensation payable : 50/100 x 100 x 209.92 x 50/100 Rs.52,480/- 6. The learned counsel appearing for the appellant/claimant disputed the percentage of disability reduced by the Commissioner from 70% to 50%. Ex.A5 is the disability Certificate. The first respondent-Company undertook to lay of Tar Road. The learned counsel appearing for the appellant/claimant disputed the percentage of disability reduced by the Commissioner from 70% to 50%. Ex.A5 is the disability Certificate. The first respondent-Company undertook to lay of Tar Road. On 26.09.1994, at about 1.15 p.m. while laying the Chenglepet Road, the appellant/claimant was engaged in fixing the mixer box door with the screw jack which was kept on the loader bucket. The jack slipped and the bucket moved, which resulted in the claimant losing balance and falling on the back of the bucket and sustained injuries and also sustained fracture in his left and right hip. He was admitted in C.M.C. Hospital and subsequently took treatment in Nambi Nursing Home. Due to the injuries he is unable to walk on his own and he left ower limb was shortened by one inch. 7. After considering the oral and documentary evidence the Commissioner held as follows: "In the accident the applicant had sustained multiple injuries, left hip joint fracture and shortening of left lower limb by one inch. Mal-union of fracture pubis. The applicant could walk with support only. The doctor in the disability certificate Ex.A5 had assessed the disability at 70%. After seeking the applicant and perusing the medical records and on discussion with the parties concerned, if the disability at 50%. As to the age of the applicant, based on Ex.A3 School record, in which the date of birth of the applicant is mentioned as 11.11.1964 I hold the age of the applicant to be 29 year at the time of accident." A reading of the above, it is clear that the Commissioner has considered all the relevant materials on record and fixed the disability at 50% and also there is no serious dispute regarding the same. Therefore, I am of the view that the finding given by the Commissioner is based on valid material evidence and the same is confirmed. 8. In respect of the wages and other aspects are concerned, I am of the view that after considering the materials on record, the Commissioner has rightly come to the conclusion and awarded the compensation. Therefore, I do not find any error or illegality in the order passed by the Commissioner. Hence, the amount awarded by the Commissioner is confirmed. Under these circumstances, the first question is answered in favour of the respondent and against the appellant. 9. Therefore, I do not find any error or illegality in the order passed by the Commissioner. Hence, the amount awarded by the Commissioner is confirmed. Under these circumstances, the first question is answered in favour of the respondent and against the appellant. 9. In respect of the second question, both the counsel fairly stated that the issue is covered by the decision of the Division Bench of this Court in the case of N.GANESAN Vs. THILAGAVATHI AND ANOTHER reported in 2010 (2) TNLJ 449 in favour of the appellant and held in paragraphs 26 and 27 as follows: "26.The learned Judge of this Court in the decision reported in (2007) 5 MLJ 1059 (cited supra) and 2008 (1) TN MAC page 38 (cited supra) after taking into consideration the above cited Larger Bench decision of the Honble Supreme Court of India, has correctly held that the interest on compensation is payable 30 days after the date of the accident in which workman sustained injuries resulting in death". 27. In the result, the reference is answered as follows:- i. The word "falls due" occurring under Section 4-A of the Workmens Compensation Act, 1923 in the light of the ratio laid down in the Larger Bench decision of the Honble Supreme Court of India reported in 1976 (1) SCC 289 – in Pratap Narain Singh Deo V. Srinivas Sabata and another and 2000 ACJ page 5 (SC) – Kerala State Electricity Board vs. Valsala.K, means that interest for compensation amount would accrue 30 days after the date of the accident and not from the date of quantification/orders passed by the Commissioner for Workmens Compensation. ii. The decisions rendered by the Single Bench of this Court in the decisions reported in (2007) 5 MLJ 1059 : 2007 (2) TN MAC page 98 – Marimuthammal @ Marimuthu and Another -v- R.P.P.Construction (P) Ltd., Chennai and others, 2008(1) TN MAC page 38 – A.Chairmen -v-A.Thirumeni & Another, had laid down the correct proposition in consonance with the ratio laid down by the Larger Bench of the Honble Supreme court of India in the above cited decisions. Iii. The Registry is directed to list these appeals for final disposal before the concerned Portfolio Judge." 10. Iii. The Registry is directed to list these appeals for final disposal before the concerned Portfolio Judge." 10. Following the above judgment, I answer the second question referred to above in favour of the appellant and to that extent, the order of the Commissioner for Workmens Compensation is set aside and the interest for the compensation amount would accrue thirty days after the date of the accident and not from the date of qualification/orders passed by the Commissioner for Workmens Compensation. 11. Accordingly, the Civil Miscellaneous Appeal is allowed partly. No costs.