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Andhra High Court · body

2010 DIGILAW 676 (AP)

National Insurance Company Limited v. Banda Ashok

2010-07-29

GHULAM MOHAMMED

body2010
Judgment This appeal by the insurance company is directed against the judgment dated 24.03.2005 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad, in W.C.No.143 of 2004, whereby the application of the first respondent herein was allowed by awarding a compensation of Rs.4,80,974/-. Brief facts of the case are that on 14.05.2004, when the first respondent, who was employed as driver by the second respondent herein, was proceeding on the lorry bearing No.AP 5T 7992 from Turkapally to Jagtial by carrying poultry load and on reaching near Renigunta Village limited, he lost control over the lorry, due to which the lorry turned turtle and the first respondent sustained grievous injuries and fractures. He was shifted to Karimnagar Hospital and later was shifted to Osmania General Hospital, Hyderabad, for further treatment. Therefore, first respondent filed the application before the Commissioner claiming a compensation of Rs.5,00,000/- for the injuries received by him. To prove his claim, the applicant examined A.Ws.1 and 2 and marked Exs.A-1 to A-7 i.e., F.I.R., original discharge card, disability certificate, original driving license, R.C. of the vehicle, insurance policy and x-ray films with report. The insurance company examined no witness, however marked Ex.D-1 insurance policy. The Commissioner, after considering the facts and circumstances of the case and the evidence on record, observed that the accident occurred during the course of employment and therefore, the first respondent is entitled compensation. The Commissioner further observed that since the first respondent suffered physical disability at 40% as per the evidence of A.W.2 – Orthopaedic Surgeon Specialist, loss of earning capacity of the first respondent is 100% and the age of the first respondent was arrived at 28 years basing on the driving licence. Against the claim of the first respondent regarding his salary at Rs.4,000/- per month, the Commissioner, taking into account G.O.Ms.No.30 dated 27.07.2000, whereby minimum wages were fixed by the Government of Andhra Pradesh, took the salary at Rs.3,773.50 per month. Since the first respondent was aged 28 years at the time of accident, as per Schedule IV of the Workmen’s Compensation Act, 1923, the Commissioner has taken the relevant factor ‘211.79’ for the purpose of calculating the compensation. Accordingly, the Commissioner arrived at Rs.4,79,514/- towards compensation. The Commissioner granted further sums of Rs.960/- towards stamp fee and Rs.500/- towards advocate fee. Accordingly, the Commissioner arrived at Rs.4,79,514/- towards compensation. The Commissioner granted further sums of Rs.960/- towards stamp fee and Rs.500/- towards advocate fee. In total, the Commissioner awarded a compensation of Rs.4,80,974/-, which shall be paid within thirty days from the date of the judgment, failing the compensation shall be paid along with interest at 9% per annum from the date of the application till realization. The learned counsel for the appellant-insurance company submitted that the Commissioner erred in arriving the loss of earning capacity at 100% since as per the Doctor, the first respondent suffered only 40% physical disability. In support of his submission he relied on the decision of the Supreme Court in Oriental Insurance Company Limited vs. Mohd. Nasir (2009) 6 SCC 280 It is relevant to extract Section 2(l) of the Workmen’s Compensation Act, 1923 (for short ‘the Act’), which reads as under: “(1) ‘total disablement’ means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more.” It is also relevant to extract Section 4(1)(c) of the Act, which reads as under: 4. Amount of Compensation: - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- (c) where permanent partial disablement results from the injury (i) in the case of an injury specified in Part II of Schedule I, such percentage of the 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, and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation 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. Explanation I:- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II:- In assessing the loss of earning capacity for the purposes of sub-clause (ii), 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.” According to the evidence of A.W.2 - the Doctor, he found the following injuries on the first respondent - (i) fracture of right femur with a butterfly fragment – postoperative fracture not yet united (ii) stiffness of right knee and hip with painful restriction of movements – 50% of hip and 20% of the knee and he assessed the physical disability of the first respondent at 40%, which is permanent and partial. Basing on the Doctor’s evidence who stated that it will be difficult for the first respondent to walk and squat and that there was no possibility of the first respondent driving the vehicle in future, the Commissioner concluded that since the first respondent has been totally incapacitated to work as a driver, as per the provisions of the Act, the loss of earning capacity shall be 100%. A perusal of the judgment of the Commissioner shows that the Commissioner considered all the aspects in a detailed and proper manner. Therefore, I do not see any infirmity in the judgment of the Commissioner while awarding compensation as referred to above. However, as rightly pointed out by the learned counsel for the appellant insurance company, in view of the catena of decisions of the Apex Court and this Court, the compensation shall carry interest at 7.5% per annum from the date of application before the Commissioner till the date of judgment of the Commissioner and thereafter at 12% per annum till realization. In all other respects, the judgment of the Commissioner shall remain intact. Accordingly, the C.M.A. is partly allowed reducing the rate of interest to 7.5% per annum from the date of the application before the Commissioner till the date of the judgment of the Commissioner and thereafter at 12% per annum till realization.