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2020 DIGILAW 827 (AP)

Shaik Vali v. Shaik Basheer

2020-12-17

M.VENKATA RAMANA

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ORDER : M. Venkata Ramana, J. 1. This Civil Miscellaneous Appeal is directed against order of the Commissioner for Workmen Compensation and Assistant Commissioner of Labour - II Circle, Guntur, in W.C. No. 23 of 2004, dated 22.02.2005. 2. The dissatisfied applicant is the appellant. The respondents before the Commissioner for Workmen Compensation (Commissioner for short) are the respondents herein. 3. The appellant sought a compensation of Rs. 2,50,000/- with interest at 15% thereon and with costs against the respondents by his application before the Commissioner. The basis for making such claim is the alleged fracture suffered to both his lower limbs in the accident near Khasimpeta village on the highway between Hyderabad and Vijayawada at 6.30 a.m. on 18.05.2000. This accident occurred on account of the lorry AAQ 5956, of which the applicant was the driver, when driven in rash and negligent manner by one Sri Shaik Riyazuddin, cleaner of this lorry and dashed against opposite lorry AP 16W 799 belonging to Sri Gummula Venkata Reddy, a resident of Chityala. 4. The first respondent was the owner of the lorry AAQ 5956 and the second respondent was the insurer on the date of the accident. 5. Setting out his claim, basing on the above accident and that he suffered fracture to his left leg below the hip joint and another fracture to his right knee joint as well as to his right ankle joint, he claimed such compensation. He also stated that he sustained permanent disability on account of these fractures and inspite of surgeries he had, he continued to have such disability. Thus, he claimed that this accident occurred during and in the course of employment of the first respondent, who was paying him Rs. 2,000/- per month as salary and that he was earning Rs. 500/- to Rs. 600/- as batta. 6. The first respondent did not choose to contest this petition. The second respondent denied the claim of the petitioner, with reference to nature of the accident, the nature of injuries said to have been suffered by the appellant and his disability as well as loss of earning capacity thereon. It also denied that the vehicle in question was insured with it. 7. Basing on the material and the pleadings, the Commissioner settled the following issues for the purpose of enquiry: 1. It also denied that the vehicle in question was insured with it. 7. Basing on the material and the pleadings, the Commissioner settled the following issues for the purpose of enquiry: 1. Whether the applicant sustained permanent partial disability due to an accident arising out of and in the course of employment? 2. If so, for what compensation, the applicant is entitled and who is liable to pay compensation? 8. In the course of enquiry, the applicant examined himself as A.W.1 and an Orthopedic Surgeon, who treated him as per his claim to support his version as A.W.2, while relying on Ex. A1 to Ex. A6. 9. On such material, the Commissioner held that the applicant sustained permanent partial disability in the accident alleged, which was a result of the employment of the claimant for the first respondent during and in its course. Findings are recorded basing on the evidence adduced by the appellant, which is supported by copies of FIR, charge sheet, wound certificate, medical certificates (Ex. A1 to Ex. A4 respectively) and that due to this accident, the appellant suffered grievous injuries leading to permanent partial disability. 10. These findings have become final in as much as the respondents did not question them in an appeal. 11. With reference to issue No. 2, the Commissioner held that the appellant suffered 35% disability and the same was applied as percentage of loss of earning capacity. Considering the age of the claimant being 43 years by the date of the accident and also his wages at Rs. 2,587/- per month with VDA at Rs. 389/-, in all Rs. 2,976/-, restricting it to Rs. 2,000/-, the compensation was awarded at Rs. 67,116/- only, making both the respondents liable jointly and severally. Interest at 8% per annum from the date of the accident till the date of realization was added as a default clause in case the respondents failed to deposit the above amount within 30 days from the date of receipt of the above order. 12. Sri K. Siva Rama Krishna, learned counsel for Sri N. Subba Rao, learned counsel for the appellant submitted his arguments and whereas Sri Naresh Byrapaneni, learned Standing Counsel for the second respondent questioned the claim for enhancement of compensation in his submissions for the second respondent. 13. The following are the substantial questions of law raised in this appeal: 1. Sri K. Siva Rama Krishna, learned counsel for Sri N. Subba Rao, learned counsel for the appellant submitted his arguments and whereas Sri Naresh Byrapaneni, learned Standing Counsel for the second respondent questioned the claim for enhancement of compensation in his submissions for the second respondent. 13. The following are the substantial questions of law raised in this appeal: 1. Whether the learned Commissioner is justified in holding that the percentage of loss of earnings is equivalent to percentage of disability sustained by the Workman? 2. Whether the disablement sustained by the workman can be termed as total disablement as per Section 2(1) of W.C. Act? 3. Whether the Award passed by the learned Commissioner is perverse to the facts and contrary to material on record? 4. Whether the learned Commissioner can ignore the evidence of A.W.2 Doctor and Ex. A4, while fixing the age of the workman? 14. Substantial questions 1, 2 and 4: In as much as the findings recorded on issue No. 1 have become final, since no appeal is preferred by the respondents in respect thereof, it is not necessary to discuss the nature of accident or permanent partial disability claimed by the appellant. 15. It is the specific contention of the appellant that on account of fracture suffered to both his lower limbs, he is unable to discharge his duties as driver and that he is deprived of an opportunity to any other work. Thus, it is contended that when the evidence of the appellant and the Orthopedic Surgeon, who treated him, are clear in this respect, the Commissioner is not correct in considering loss of earning capacity at 35% only than 100%. Thus, it is contended that the factor of disability has to be reevaluated with reference to loss of earning capacity of the appellant. 16. As A.W.1, the appellant stated describing nature of fracture suffered by him. He further stated that his left leg suffered shortening in length and consequently, he is limping. Thus, it is a factor to be reckoned, according to the appellant in this context. He denied the suggestion for the second respondent that he did not suffer any physical disability on account of the injuries suffered in this accident. 17. Dr. Y. Lakshmana Swamy (A.W.2) is an Orthopedic Surgeon at Guntur. Thus, it is a factor to be reckoned, according to the appellant in this context. He denied the suggestion for the second respondent that he did not suffer any physical disability on account of the injuries suffered in this accident. 17. Dr. Y. Lakshmana Swamy (A.W.2) is an Orthopedic Surgeon at Guntur. He deposed that the appellant was admitted in his hospital next day of the accident and two surgeries were performed to both the limbs. His evidence reflects that interlocking of right tibia and left medial condyle was done by fixation of screws apart from skin grafting. He further deposed that interlocking nail fixed to left tibia was removed on account of infection suffered by the appellant. He also deposed that there is restriction of left knee joint movement, associated with pain and that there is restriction in right ankle and knee movements. He also supported the version of the claimant that he suffered shortening of his right leg by ½" and that his right knee joint suffered a deformity. His evidence is also that the appellant is not fit to drive the vehicles. He opined that the disability of the appellant being 35% partial permanent. He also deposed that all the fractures though united resulted in mal-union and that there would not be any improvement of disability by undertaking further surgeries. He explained that due to nature of these fractures, the appellant suffered disability, which would affect his routine work also. 18. While discussing issue No. 2, the Commissioner did not address the nature of fractures and their consequent effect on the appellant. He accepted the version of the Orthopedic Surgeon that the appellant suffered 35% disability and applied the same measure towards loss of earning capacity. 19. Learned counsel for the appellant referring to Section 2(l) and (g) of the Workmen Compensation Act, contended that the nature of disability suffered by the appellant should be considered as total disablement, since the fractures suffered, incapacitated him to perform any other work, which he was capable of performing at the time of the accident and such disablement is permanent nature reducing his earning capacity in every employment, which he was capable of undertaking at the time of the accident. For this purpose, learned counsel also relied on a judgment of the then High Court of Andhra Pradesh, at Hyderabad in NAKKA RAMBABU v. AKKA RAO : 2015(4) ALD 50 . This ruling in turn relied on N. SRIRAMULU @ SREE RAMA MURTHY v. B. LAKSHMI NARAYANA AND ANOTHER : 2013 (5) ALD 249 , where after referring to various decisions of Hon'ble Supreme Court explaining permanent partial disablement and total disablement for the purpose of awarding compensation, observed in para - 26 as under: "(a) All injuries or permanent disabilities arising from injuries do not result in loss of earning capacity. (b) Where permanent partial disablement results from an injury and the said injury is specified in Schedule I, it would be covered by Section 4(1)(c)(i) of the Act. In such a case, the workman would be entitled to such percentage of 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; (c) Where permanent partial disablement results from an injury and the injury is not specified in Schedule I, it would be covered by Section 4(1)(c)(ii) of the Act. In such a case, the workman would be entitled to such percentage of compensation which would have been 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. (d) In assessing loss of earning capacity in a case of permanent partial disablement resulting from an injury not specified in the Schedule I, 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. (e) The opinion of the medical practitioner as to the percentage of loss of earning capacity would be normally binding on the Court where permanent partial disablement results from an injury not specified in Schedule I. (f) The importance of medical evidence is only in case where disablement in performing duties which the workman was performing earlier cannot be decided without the aid of medical evidence. In case where it can be so decided with or without medical evidence (like amputation of limbs), medical evidence is not relevant and the question of the victim not suffering specified injuries is also not relevant. In case where it can be so decided with or without medical evidence (like amputation of limbs), medical evidence is not relevant and the question of the victim not suffering specified injuries is also not relevant. (g) Loss of earning capacity is not a substitute for percentage of physical disablement and is only one of the factors taken into account. (h) The loss of earning capacity arising from a permanent disability may be different from the percentage of permanent disability. Equating the percentage of loss of earning capacity to the percentage of permanent disability would result in the award of either too low or too high a compensation. What requires to be assessed is the effect of permanent disability on the earning capacity of the injured. This involves ascertainment of what activities the claimant can carry on in spite of permanent disability and what he could not do as a result of the permanent disability; ascertainment of his avocation, profession and nature of work before the accident and also his age; and finding out whether he is totally disabled from earning any kind of livelihood (or) whether in spite of permanent disability, he can still effectively carry on the activities and functions, which he was earlier carrying on (or) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. In para. 14 of Raj Kumar's case (supra) and in para. 8 of Mohan Soni's case (supra) appropriate guidance is available. (i) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Commissioner/Court with reference to the evidence in entirety. (j) Where a claimant is a workman who suffered injuries in an accident and his employer either provides for pension after retiring the workman on the grounds of medical invalidation or the dependants of the claimant are given appointment on compassionate grounds, he has a duty to disclose these facts and they would have a material bearing on the ascertainment of the percentage of loss of earning capacity. (k) It is a question of fact in each case whether there is permanent total disablement on account of the injuries suffered by the claimant. In a given case, the loss of earning capacity caused by an injury can amount to 100% disablement. But, if the injured claimant is in a position to earn a living by doing a job other than the one which he was doing at the time of his accident, he cannot be said to have suffered 100% disability. (l) Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income." 20. Sri Naresh Byrapaneni, learned standing counsel for second respondent has drawn attention of this Court to the provisos appended to Section 2(g) and (l) of the Workmen Compensation Act and their effect, which require consideration of part I and II of Schedule I of this Act, for this purpose to categorize any disability as permanent partial or permanent total disablement, particularly when it is sought to be claimed that the loss of earning capacity, is 100%. In this context, learned standing counsel relied on UNITED INDIA INSURANCE COMPANY LIMITED, REP. BY ITS DIVISIONAL MANAGER, DIVISION OFFICE I, SECUNDERABAD v. S.A. RAZAK: 2016 ACJ 314 . In this ruling also, the method of assessing the effect of partial permanent disability as well as permanent disability vis a vis loss of earning capacity was considered while relying on ruling of Hon'ble Supreme Court in RAJ KUMAR v. AJAY KUMAR: (2011) 1 SCC 343 . 21. In order to consider the nature of disability and its effect of loss of earning capacity, the claimant is required to adduce evidence. 21. In order to consider the nature of disability and its effect of loss of earning capacity, the claimant is required to adduce evidence. Except his testimony in this context, there is no other material to support him. Evidence of the Orthopedic Surgeon, who he examined, did not specifically bring out as to effect of this disability on the earning capacity of the appellant. His version that the appellant cannot drive the vehicle in future cannot necessarily lead to an inference that he cannot attend to any other work, which is capable of earning a living. Though he stated that there will be difficulty for the appellant to attend his routine work, it cannot indicate by itself that such difficulty would prevent him from pursuing any other activity by which he is capable of making out a living. 22. Therefore, when there is no evidence as such on record, it cannot be inferred that the factor of disability claimed by the appellant had lead such situation completely incapacitating his earning capacity. The decisions of this Court relied on for both the parties, referred supra, support this inference and stand in tandem. 23. Added to it, as rightly contended by learned Standing Counsel for the second respondent, the disability is attributable to the injuries, which are not specified in the schedule, under the Act are required to be considered for assessment of compensation in terms of Section 4(1)(c)(ii). It clearly requires that loss of earning capacity shall be based on the assessment of a qualified medical practitioner and that it shall be in proportion to permanent total disablement, if an injury is not specified in schedule I. Explanation II appended thereto clearly states that the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I while assessing loss of earning capacity for this purpose. The evidence of the Orthopedic Surgeon (A.W.2) remained obscure without making out this factor. This is an additional circumstance, apart from paucity of evidence from the claimant to support his contention. 24. Another contention of learned counsel for the appellant is that the Commissioner had taken into consideration the age of the appellant at 48 years by the date of the accident, though was only 43 years old. This is an additional circumstance, apart from paucity of evidence from the claimant to support his contention. 24. Another contention of learned counsel for the appellant is that the Commissioner had taken into consideration the age of the appellant at 48 years by the date of the accident, though was only 43 years old. The basis for the Commissioner to consider the age of the appellant at 48, on the date of the incident is his description in Ex. A2 charge sheet. A charge sheet is a product of investigation by the police and it cannot as such be a right indicator to consider the age of the appellant. His version being 43 years old, if considered by the Commissioner, it would have been appropriate. Basing on G.O. Ms. No. 71 dated 16.04.1991, learned Commissioner arrived at the compensation so awarded applying factor at 159.80, considering the age of the appellant at 48 years. Wages, restricting to Rs. 2000/- per month was considered for this purpose. 25. Sri Naresh Byrapaneni, learned standing counsel strongly objected this manner of calculation of compensation pointing out that by the date of G.O. Ms. No. 71 dated 16.04.1991, there was no provision to consider VDA and for the first time, it was introduced by G.O. Ms. No. 30 dated 27.07.2000. Therefore, in terms of G.O. Ms. No. 30 according to Sri Naresh Byrapaneni, fixed wages for this purpose should have been considered and that G.O. Ms. No. 30 did not have retrospective effect. Thus, learned Standing Counsel contended that the entire calculation adopted by the Commissioner, has lead to awarding an unnecessarily excessive compensation to the appellant. 26. Learned Standing Counsel contended that this impropriety is pointed out only to support his contention that what is already awarded is excessive and that there is no justification in the present appeal. 27. This contention is correct. Even if the age of the appellant on the date of the accident is considered at 43, the appropriate factor applicable as per schedule IV of Workmen Compensation Act is 175.54. When on such basis, applying the same measure, restricting the wages of the appellant to Rs. 2,000/- as was done by the Commissioner, the loss of earning capacity at 35% is computed, the compensation to award is Rs. 61,439/-. Therefore, what has been already awarded to the appellant is not based on proper calculation. When on such basis, applying the same measure, restricting the wages of the appellant to Rs. 2,000/- as was done by the Commissioner, the loss of earning capacity at 35% is computed, the compensation to award is Rs. 61,439/-. Therefore, what has been already awarded to the appellant is not based on proper calculation. Nonetheless, the appellant has had the benefit of the same. There is no necessity to disturb the amount so awarded, in the absence of any challenge to the order of Commissioner by an appeal by the insurer. 28. Another contention of the appellant is that the Commissioner did not award interest in terms of Section 4A of the Workmen Compensation Act. In terms of Section 4A(3) of WC Act, in case of default in paying compensation under this Act within one month from the date it fell due, an obligation lies on the employer to pay interest as prescribed therein. For the purpose of reckoning the date when liability of the first respondent fell due for paying compensation is the date of the accident itself, i.e., 18.05.2000. The employer is under obligation to deposit compensation payable to the employee within one month there from. 29. In this case, it remained an undisputed fact that the first respondent did not pay compensation as required under Workmen Compensation Act, within one month from the date of the accident. Therefore, as rightly contended for the appellant his liability stands to pay interest on the compensation so awarded. In as much as the contract of insurance in between the respondents was subsisting on the date of the accident for the lorry in question, the second respondent is also liable to account for this interest, in order to indemnify the first respondent. If rate of interest at 9% is awarded for this purpose from the date of the accident, viz. 18.05.2000 till the date of deposit of compensation amount as awarded by the Commissioner, it stands, in the interests of justice. Default clause imposed by the Commissioner in the order under appeal is not a proper application of Section 4A of WC Act and question of subjecting depositing compensation, to such default clause cannot arise. The Commissioner is under an obligation to apply Section 4A(3) of WC Act in awarding interest properly. 30. Default clause imposed by the Commissioner in the order under appeal is not a proper application of Section 4A of WC Act and question of subjecting depositing compensation, to such default clause cannot arise. The Commissioner is under an obligation to apply Section 4A(3) of WC Act in awarding interest properly. 30. Therefore, the interest as claimed by the appellant on the amount of compensation requires to be awarded and as such, the contention of the appellant in this context has to be accepted. 31. Thus, these three substantial questions are answered. 32. Substantial Question No. 3: The order of the Commissioner is cryptic and without appropriate discussion on the material on record. Elaboration and a discussion on merits and demerits of evidence is required in cases of this nature. The order under appeal requires modification to the extent stated above, granting interest. Thus, this question is answered. 33. In the result, this Civil Miscellaneous Appeal is allowed in-part awarding interest on compensation amount of Rs. 67,251/- at 9% per annum from the date of the accident, viz., 18.05.2000 till the amount was deposited before the Commissioner. On such deposit, the appellant is entitled to withdraw the same, which the Commissioner shall permit as per existing rules. No costs. Interim orders if any, stand vacated. All pending petitions, stand closed.