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2014 DIGILAW 1026 (AP)

Battu Madhan v. B. Sailaxmi

2014-08-13

C.V.NAGARJUNA REDDY

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Judgment : This appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 [renamed as Employee’s Compensation Act, 1923] (for short ‘the Act’) partly aggrieved by the order in W.C.No.212 of 2002 (NF) of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nizamabad (for short ‘the Commissioner’). The appellant, cleaner of lorry bearing No.AP25T 348, filed an application under Section 22 of the Act before the Commissioner claiming compensation of Rs.4,00,000/- for the personal injuries sustained by him in the accident involving the said lorry. The appellant pleaded that he is under the employment of respondent No.1 as a cleaner and that in the course of his employment, he was travelling in the lorry from Adarshanagar to Kanteshwar on 24.04.2001 and that when the lorry reached the place near Rythu Bazar, Subashnagar, Nizamabad, the driver has lost control over it, as a result of which, it fell down resulting in multiple injuries to him and the driver. The appellant pleaded that he received fracture on right shoulder clavicle, injuries on head, back, hands, chest and other parts of the body, that as the said injuries were sustained in the course of employment of respondent No.1, the said respondent and respondent No.2, which is the insurer of the vehicle, are liable to pay compensation. Respondent No.1, owner of the lorry, filed a counter affidavit, wherein he admitted the accident and also the employment of the appellant with her. She has stated that the lorry was insured with respondent No.2 and that the insurance was valid from 09.09.2000 to 08.09.2001. Respondent No.2 filed a counter affidavit denying all the material allegations. On the respective pleadings, the Commissioner has framed the following issues: “1. Whether the Applicant is a workman within the meaning of the Act and whether the accident occurred during the course of employment under Opposite Party No.1? 2. If so, to what relief the Applicant is entitled and against which of the Opposite Parties?” The appellant examined himself as PW.1 and also examined Doctor as PW.2. He has filed Exs.A1 to A7. No evidence was adduced on behalf of the respondents. 2. If so, to what relief the Applicant is entitled and against which of the Opposite Parties?” The appellant examined himself as PW.1 and also examined Doctor as PW.2. He has filed Exs.A1 to A7. No evidence was adduced on behalf of the respondents. On appreciation of the documentary and oral evidence, the Commissioner has held that the accident has occurred involving the lorry in which the appellant was travelling, that the appellant has suffered one simply injury and one grievous injury due to which he suffered permanent partial disability of 40%. The Commissioner has taken the wages at Rs.1,800/- per month, age as 20 years and applied the relevant factor prescribed under the Act and awarded a sum of Rs.96,768/- as compensation. The Commissioner has not awarded any interest on the said sum. He has made both the respondents jointly and severally liable for payment of the compensation. While neither of the respondents has filed any appeal against this order, the appellant has filed the present appeal partly aggrieved by the same. At the hearing, Sri K.Mahender Reddy, learned counsel for the appellant, submitted that the appeal is filed mainly on three grounds, namely, (1) that the Commissioner has not awarded interest, (2) that he has taken only Rs.1,800/- as wages as against the sum of Rs.4,000/- claimed by the appellant and (3) that instead of taking the disability as 100%, the Commissioner has only taken the disability at 40%. As regards interest, under Section 4A(3) of the Act, where any employer is due under the Act and he fails to pay the same, within one month from the date it fell due, the Commissioner shall direct the employer to pay simple interest thereon at the rate of 12% or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification, on the amount due. A perusal of the order of the Commissioner shows that he has not assigned any reasons for denying the appellant the benefit of interest. Entitlement to interest is a statutory right conferred on the claimant and the same does not fall within the discretion of the Commissioner. Therefore, it is incumbent upon him to award interest wherever payment is not made within one month from the date compensation fell due. Entitlement to interest is a statutory right conferred on the claimant and the same does not fall within the discretion of the Commissioner. Therefore, it is incumbent upon him to award interest wherever payment is not made within one month from the date compensation fell due. In a case where compensation is determined by the Commissioner under the Act, liability to pay compensation would date back to the time of accident and therefore, the same is deemed to have fallen due on the date the accident has occurred. A fortiori, in every case of determination of compensation, the claimant is entitled to payment of interest at a minimum rate of 12% pa. It is not the pleaded case of the respondents that any part of the compensation was paid within 30 days from the date of accident. Hence, the Commissioner has committed a serious error in denying interest on the compensation awarded by him. With regard to wages, in his complaint, the appellant has mentioned his monthly income as Rs.4,000/- per month. Respondent No.1 in the counter affidavit has left the amount towards monthly salary blank. Ex.A5-salary certificate stated to have been issued by respondent No.1 also contains blank against the column relating to the amount of monthly salary. Thus, except the ipsi dixit of the appellant that he was earning a monthly salary of Rs.4,000/-, no corroborative evidence has been placed by him to prove the said plea. In the absence of any such evidence, the Commissioner is justified in adopting a rough and ready figure of Rs.1,800/- per month obviously considering the scale of wages/salaries being paid to the lorry cleaners at that time. Therefore, I do not find any error in the Commissioner taking Rs.1,800/- as the monthly wages of the appellant. As regards the percentage of disability, PW.2 who is a Civil Assistant Surgeon, Government Head Quarters Hospital, Nizamabad has stated that the appellant has suffered two injuries, that injury No.1 is simple in nature and injury No.2 is grievous in nature i.e., fracture of right shoulder clavicle. He further deposed that he has issued disability certificate showing 45% as permanent partial disability and also functional disability with loss of earnings of 45%. Based on the said evidence, the Commissioner has taken 40% as the disability. He further deposed that he has issued disability certificate showing 45% as permanent partial disability and also functional disability with loss of earnings of 45%. Based on the said evidence, the Commissioner has taken 40% as the disability. In my opinion, marginal reduction of percentage of disability from the assessment of the Doctor cannot be said to be an error warranting interference with the order of the Commissioner. For the above-mentioned reasons, the appeal is partly allowed by directing payment of simple interest at the rate of 12% per annum from the date of accident till the date of payment.