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2012 DIGILAW 966 (AP)

Oriental Insurance Co. Ltd. v. Sri Ravula Krishna

2012-10-04

B.N.RAO NALLA

body2012
Judgment This appeal has been filed by the Oriental Insurance Company Limited assailing the order dated 21.06.2005 in W.C.No.210 of 2004 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-1, Hyderabad whereby and whereunder the applicant-claimant was awarded an amount of Rs.3,02,803/- as compensation as against the claim of Rs.5,00,000/-. 2. The parties hereinafter referred to as they arrayed in the W.C. 3. The brief facts of the case of the applicant are that he was working as driver of auto trolley bearing No. AP 29 T 2193 belonging to opposite Party No.1 and he was paid monthly salary at the rate of Rs.4,000/-; that on 31.08.2004, while he was proceeding in the said auto trolley from Hyderabad towards Vijayawada, at about 3.30 p.m., near Toopranpet village, a lorry was coming in high speed and was trying to overtake a bus and he tried to avoid head on collision with the said vehicle and took the auto trolley to the extreme left side and in that process, the auto trolley fell down, as a result, he sustained a crush injury to his left leg and a head injury besides fractures to his right ankle and that P.S. Choutuppal registered a case in Crime No.140 of 2004 and he was shifted to Osmania General Hospital, Hyderabad, where the doctors suggested him that his left leg is to be amputated because of the injuries sustained to his left tibia. The applicant and his parents had opposed for such amputation, and as such, he was discharged from Osmania General Hospital and was admitted in Anurag Orthopaedic Multi Speciality Hospital, where he was operated and nails and rods were inserted into his leg; that for the treatment he had incurred an expenditure of Rs.1,25,000/-and he has to further spend Rs.30,000/-to Rs.50,000/-towards medical expenses and that he has taken those amounts from his relatives and friends. Because of the fractures, his life became miserable as he is unable to walk, sit, fold his leg, squat and attend to his nature calls and is limping while walking and the movements of his left leg are restricted. The doctors informed him that he is unable to drive, and thus stated he has suffered 100% loss of earning capacity. The accident arose out of and during the course of his employment with opposite party No.1. The doctors informed him that he is unable to drive, and thus stated he has suffered 100% loss of earning capacity. The accident arose out of and during the course of his employment with opposite party No.1. He was aged about 21 years at the time of the accident. Opposite party No.1 visited him in hospital and informed him that the auto trolley was insured with opposite party No.2. Opposite party No.1 is the registered owner of the auto trolley and opposite party No.2 is the insurer, and as such, he claimed that both the opposite parties are jointly and severally liable to pay a compensation of Rs.5,00,000/-. 4. Opposite Party No.1 filed her counter stating that there is no dispute with regard to occurrence of the accident, narration of the accident, employment of the applicant, registration of a case by the police and his treatment in Osmania General Hospital. It is stated that the claim of the applicant that he suffered loss of earnings at 100% has to be substantiated by filing necessary documents. It is denied that the applicant was paid Rs.4,000/-per month towards salary/wages and his age was 21 years. It is also stated that she has paid Rs.3,000/-towards medical expenses in addition to his wages. It is further stated that the auto trolley was insured with opposite party No.2 and opposite party No.2 is liable to pay compensation, and as such, the petition may be dismissed against opposite party No.1. 5. Opposite party No.2 filed its counter denying the averments made in the claim petition. It is stated that the applicant has not filed any documents to show that he worked as driver of the auto trolley bearing No. AP 29 T 2193 belonging to opposite party No.1, the occurrence of the accident out of and during the course of employment with opposite party No.1, he was aged 21 years at the time of the accident and he was paid salary/wages at Rs.4,000/ per month besides batta. It is denied that the accident occurred and the applicant sustained injuries, hospitalised and subsequent disablement and medical expenditure incurred by him. The applicant has not filed any documents to show that he suffered 40% permanent disability and 100% loss of earning capacity. 6. Based on the rival pleadings, the trial Court framed the following points for consideration. 1. It is denied that the accident occurred and the applicant sustained injuries, hospitalised and subsequent disablement and medical expenditure incurred by him. The applicant has not filed any documents to show that he suffered 40% permanent disability and 100% loss of earning capacity. 6. Based on the rival pleadings, the trial Court framed the following points for consideration. 1. Whether the applicant, Sri R. krishna, met with an accident on 31.8.2004, which arose out of and in the course of his employment as a driver on the auto trolley bearing No. AP 29 T 2193 in the employment of the 1st opposite party and sustained injures. 2. If yes, what is the percentage of physical disability suffered by the applicant and consequent loss of earning suffered by the applicant? 3. Who are liable to pay compensation to the applicant? And 4. What is the amount of compensation entitled by the Applicant? 7. On behalf of the applicant, applicant himself got examined as AW.1 and also got examined an Orthopaedic Surgeon as AW.2 and got marked Exs.A.1 to A.15. On behalf of opposite party No.1, her husband was examined as RW.1 and Ex.B.1-original policy Ex.B.2-authorisation letter were marked, and on behalf of opposite party No.2, no oral evidence was let in, however, Ex.D.1 was marked. 8. The trial Court, taking into consideration the evidence of AW.1, AW.2 and RW.1 and Exs.A.1 to A.15, B1, B2 and D.1, and the submissions made on either side, held that the accident occurred on 31.08.2004 and the applicant was driver of the auto trolley bearing No.29 T 2193 at the time of the accident, which was insured with opposite party No.2 and the accident occurred out of and in the course of his employment with opposite party No.1 and he sustained injuries in the accident. As such, opposite party No.1 and opposite party No.2 are jointly and severally liable to pay a compensation of Rs.3,02,803/-. Aggrieved by the same, opposite party No.2 -insurance company filed this Civil Miscellaneous Appeal. 9. Heard the learned counsel on either side and perused the material on record. 10. As such, opposite party No.1 and opposite party No.2 are jointly and severally liable to pay a compensation of Rs.3,02,803/-. Aggrieved by the same, opposite party No.2 -insurance company filed this Civil Miscellaneous Appeal. 9. Heard the learned counsel on either side and perused the material on record. 10. The case of the insurance company is that no employer and employee relationship exists between the applicant -driver of the accident auto trolley and the owner of it (opposite party No.1), and as such, the trial Court committed an error in not considering the above plea of the insurance company, and in awarding compensation to the applicant. It is further its case that the applicant is the son of opposite party No.1 and Exs. A.1 -FIR, A.2 -charge sheet, A.6 -medical certificate, A13 -driving licence of the applicant, A-14 -R.C. Papers indicate the same, and so also their address. Therefore, it establishes that the applicant is the son of the opposite party No.1 and as such, it cannot be said that there exists employer and employee relationship between them. 11. On the other hand, it is the case of the applicant that opposite party No.2 insurance company did not adduce any evidence, though participated in the trial. It was open for opposite party No.2-insurance company during the course of the trial before the trial Court to adduce evidence to disprove the case of the applicant. It did not do so. Therefore, opposite Party No.2 is estopped from raising any plea at this appellate stage. Moreover, it is in the evidence of RW.1, who is the husband of the opposite party No.1 that the applicant is not his son though they belong to same village. His evidence also reveals that the name of the mother of the applicant is one Ilamma, and that his (RW.1) wife’s name is Lakshmamma. His evidence reveals that the applicant was the driver of the accident auto trolley at relevant point of time. The said auto trolley belongs to them. They used to pay the monthly salary/wages at Rs.4,000/-to the applicant. Therefore, it is contended that the plea or the contention raised or advanced on behalf of opposite party No.2 -insurance company that the applicant is the son of the opposite party No.1 is not supported by any material on record. The said auto trolley belongs to them. They used to pay the monthly salary/wages at Rs.4,000/-to the applicant. Therefore, it is contended that the plea or the contention raised or advanced on behalf of opposite party No.2 -insurance company that the applicant is the son of the opposite party No.1 is not supported by any material on record. The trial Court taking into consideration the evidence available on record, has awarded a total compensation of Rs.3,02,803/-as against the claim of Rs.5,00,000/-. In fact, the trial Court ought to have granted the compensation as claimed by the applicant. 12. It is seen that the husband of opposite party No.1 was examined as RW.1 and he stated that the applicant is not in any way related to him and the applicant is only in their employment. The case of the applicant is that his mother’s name is Ilamma and his father’s name is Ravula Narsimha, and the record shows that opposite party No.1’s name is Lakshmamma and her husband’s name is Ravula Narsimha. Though the surname of RW.1 and the applicant is one and the same and they are residents of the same village, it cannot be said that the applicant is son of opposite party No.1 and that their address is one and the same without there being any evidence on record. So far as the evidence of AW-2-doctor, who is Orthopaedic Surgeon, is concerned, he has issued disability certificate after examining the applicant clinically, radiologically and after verifying the medical record. Therefore, it cannot be said that AW.2 is not competent to issue disability certificate and that he is interested witness. 13. In view of the above discussion and having regard to the facts and circumstances of the case, this Court is of the view that the impugned order does not suffer from any illegality or irregularity warranting interference, and as such, the C.M.A. is liable to be dismissed. 14. In the result, the C.M.A. is dismissed. No order as to costs.