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2010 DIGILAW 2365 (MAD)

A. Palani @ Raju v. G. B. Jayagopi

2010-06-11

P.P.S.JANARTHANA RAJA

body2010
Judgment :- 1. This appeal is filed under Section 30 of the W.C.Act against the order dated 30.07.2003 passed in W.C.No.138 of 2002 by the Commissioner for Workmens Compensation-II, Chennai raising the following questions of law. (1) Whether the Commissioner for Workmens Compensation-II ought not to have fixed the loss of earning capacity as 100%? (2) Whether the Commissioner for Workmens Compensation-II ought not to have awarded interest at the rate of 12%p.a., from the date of accident under Section 4A(3) of Workmens Compensation Act when the award was passed on merit? 2. The brief facts involved in this appeal as as under: The appellant was working as a tourist driver under the first respondent. He claimed that he was earning Rs.160/- per day. He met with an accident on 17.11.2001 at about 7.00 a.m. when he was driving an ambassador car bearing registration no.TN09 E 7557 belonging to the first respondent from Villupuram to Chennai. The said car collided with a lorry bearing registration no.TN01 J 8212. Due to the impact of the accident, the appellant sustained grievous injuries and also fracture in neck, dislocation in right shoulder, contusion in chest and other severe injuries all over the body. He was treated in the Government Hospital, Chennai from 17.11.2001 to 18.11.2001 and further treatment in the private hospital later. He claimed that the said vehicle belonging to the first respondent was insured with the above mentioned second respondent Insurance company. Therefore, the appellant filed a claim petition under Section 10(1) of the W.C. Act claiming compensation of Rs.4,00,000/-and also claimed interest at 12%. The Insurance company resisted the claim. The Commissioner of Workmens Compensation framed the following issues, (1)Whether the claimant Palani @ Raju is the worker under the W.C.Act. Whether he had sustained injuries during the course of employment with the first respondent? (2) What is the compensation the claimant is entitled to? Who is responsible for the payment? 3. After considering the oral and documentary evidence, the Commissioner held that the accident has occurred in the course of employment and awarded a compensation of Rs.1,64,083/- The details regarding the compensation are as under. Salary : Rs.3013.58/- Age : 33 Relevant factor : 201.66 Loss of earning capacity : 45% Compensation : 60 3013.56 201.66 45 =Rs.1,64,083/- 100 100 4. After considering the oral and documentary evidence, the Commissioner held that the accident has occurred in the course of employment and awarded a compensation of Rs.1,64,083/- The details regarding the compensation are as under. Salary : Rs.3013.58/- Age : 33 Relevant factor : 201.66 Loss of earning capacity : 45% Compensation : 60 3013.56 201.66 45 =Rs.1,64,083/- 100 100 4. He had also further given interest in case the amount is not paid in particular time but he has not awarded any interest from the date of the accident. Aggrieved by that order, the appellant has filed the present appeal. 5. The counsel appearing for the appellant vehemently contended that the Commissioner awarded only a low and meagre compensation and should have considered that 54% of the disability would affect 100% earning capacity of the appellant, who is a driver. He further submitted that the Commissioner ought to have considered this factor before awarding a compensation, he was wrong in not awarding interest from the date of the accident. Therefore, the order passed by the Commissioner is not in accordance with law and the same has to be set aside and it is a fit case for enhancing the compensation. 6. The learned counsel appearing for the second respondent-Insurance company submitted that the tribunal has considered all the facts and circumstances of the case and awarded just, fair and reasonable compensation. Therefore, the order passed by the Commissioner is in accordance with law and the same has to be confirmed. 7. Heard the counsel. Perused the documents on record. The claimant himself was examined as P.W.1. P.W.2 is the Doctor Thiyagarajan. Exhibits P1 to P9 were marked on the side of the appellant. Exhibit P1 is the Discharge Summary given by the Government Hospital, Exhibit P2 is Discharge Summary given by Sapthagiri Hospital, Exhibit P3 is the F.I.R., Exhibit P4 is the Insurance Policy, Exhibit P5 is the Driving licence, Exhibit P6 is the legal notice dated 12.04.2002, Exhibit P7 is the Acknowledgment card, Exhibit P8 is the Acknowledgment, Exhibit P9 is the Disability certificate. On behalf of the Insurance Company no one was examined and no documents were marked to substantiate their claim. After considering the oral and documentary evidence, the Commissioner has given a categorical finding that the accident has occurred during the course of employment and awarded a compensation of Rs.1,64,083/-. On behalf of the Insurance Company no one was examined and no documents were marked to substantiate their claim. After considering the oral and documentary evidence, the Commissioner has given a categorical finding that the accident has occurred during the course of employment and awarded a compensation of Rs.1,64,083/-. At the time of the accident, the age of the claimant was 32 years. There is no dispute regarding the same. The appellant claimed that he was earning Rs.160/- per day. But there is no documentary evidence to show the same. Therefore, the Commissioner fixed the monthly income at Rs.3013.58/-on the basis of the Minimum Wages Act. There is no dispute regarding the same. The Commissioner also adopted the relevant factor at 201.66, which is in accordance with law. 8. P.W.2, Doctor Thiyagarajan, who examined the appellant, has determined the disability and issued Exhibit P9 the Disability Certificate, in which, he has stated that the disability is 50%. Exhibit 10 is the X-Ray. The Commissioner relying on the oral and documents marked has taken the disability at 50%. On the basis of the disability of 50%, he came to the conclusion that the said 50% of the disability affects only 45% of the earning capacity. There is no serious dispute regarding the same. The learned counsel appearing for the appellant is unable to file any material evidence or given compelling reasons before me to take contrary view of the Commissioner. In such circumstances, I am of the view that the Commissioner has correctly determined the loss of earning capacity and awarded the correct compensation. The finding given by the Commissioner is based on valid material evidence. It is a question of fact and not a perverse order. Therefore, the compensation awarded by the Tribunal is in accordance with law. I do not find any illegality or infirmity in the order of the Commissioner so as to warrant interference. Under these circumstances, the award amount passed by the Commissioner is confirmed. Therefore, in the first question referred to above is answered against the appellant and in favour of the respondent. 9. I do not find any illegality or infirmity in the order of the Commissioner so as to warrant interference. Under these circumstances, the award amount passed by the Commissioner is confirmed. Therefore, in the first question referred to above is answered against the appellant and in favour of the respondent. 9. In respect of the second question both the counsel fairly stated that the issue is covered by the decision of Division Bench of this Court in the case of N.Ganesan versus Tmt.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)5MLJ 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. iii. The Registry is directed to list these appeals for final disposal before the concerned Portfolio Judge." Following the above judgment, the second question is answered in favour of the appellant and the interest at 12% for the compensation amount would accrue thirty days after the date of the accident and not from the date of the orders passed by the Commissioner. 10. Accordingly, this appeal is partly allowed. No costs.