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2020 DIGILAW 98 (MAD)

K. Rajagopal v. R. Anand

2020-01-09

V.BHAVANI SUBBAROYAN

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JUDGMENT : V. Bhavani Subbaroyan, J. 1. This Civil Miscellaneous Appeal has been filed against the award dated 04.03.2013 made in W.C. No. 258 of 2010 on the file of the Deputy Commissioner for Workmen's Compensation - II, Chennai. 2. The case of the appellant is that he worked under the first respondent as a driver in Tipper Lorry bearing Registration No. TN-21-AX-7380 for a salary of Rs. 9,000/- per month. On 06.05.2010 at about 10.00 p.m., while he was driving the above said Tipper Lorry at Maduraival by pass road near the bridge of Aanagaputhur river, he met with an accident as he drove the vehicle in a rash and negligent manner and the Lorry was capsized. Due to the accident, he sustained grevious injuries and was immediately taken to Paravathy Hospital at Chrompet. There he took treatment from 07.05.2010 to 25.05.2010 and thereafter, he took further treatment in a private hospital He spent Rs. 3,00,000/- for medical expenses, and in spite of best treatment, he became permanently disabled. Since the accident had occurred during the course of employment under the first respondent and the second respondent is the insurer of the above vehicle, he filed a Claim Petition in W.C. No. 258 of 2010 before the Deputy Commissioner of Labour - II, Chennai, claiming Rs.6,00,000/- as compensation for the expenses made for the treatment and for the disability. 3. The first respondent was absent during the trial and therefore, he was set exparte before the Deputy Commissioner of Labour-II, Chennai. 4. The second respondent insurance company denying the age, wages and allegations of the appellant/claimant filed a counter affidavit stating that there is no employer employee relationship between the appellant and the first respondent, and the appellant is not entitled to any compensation under this Act against the first and second respondent. Further, it has been stated that the appellant is bound to prove each and every one of the averments and allegations contained in the application through proper documentary evidence, and he is not entitled to any compensation under any forum, and sought for dismissal of the application. 5. The Deputy Commissioner of Labour-II, Chennai, after considering the pleadings, oral and documentary evidence, allowed the petition in favour of the claimant and awarded a sum of Rs. 2,07,962/- as compensation to the claimant. 5. The Deputy Commissioner of Labour-II, Chennai, after considering the pleadings, oral and documentary evidence, allowed the petition in favour of the claimant and awarded a sum of Rs. 2,07,962/- as compensation to the claimant. Aggrieved by the same, the appellant/claimant has filed this appeal before this Court on the following substantial questions of law: "(a) Whether the Learned Deputy Commissioner of Labour-II is right in fixing the loss of earning capacity as 5% where the doctor assessed the disability as 59% and the medical board assessed the disability as 5%? (b) Whether the Learned Deputy Commissioner of Labour-II is right in not fixing the earning capacity as 100%? (c) Whether the Deputy Commissioner of Labour-II is right in not awarding interest at the rate of 12% p.a. from the date of accident excluding 30 days from the date of accident under Section 4(A) of the W.C. Act, while the award was passed in merits?" 6. Heard the learned counsel for the appellant and the learned counsel for the respondents, and perused the materials available on record. 7. On perusal of the award dated 04.03.2013 passed by the Deputy Commissioner of Labour-II, Chennai in W.C. No. 258 of 2010, it is observed that the appellant examined himself as PW1 and filed proof affidavit and marked certain documents in support of his averments made in the petition. When he was cross examined by the second respondent, he has stated that he had worked under the first respondent for one year and he obtained his driving licence on 15.11.2010 from the RTO office and he also has a HTV endorsement badge in the said licence. Further, he has stated that due to the injuries, he got fracture on his left leg knee and he was also made intestine surgery on his stomach. The first respondent has not appeared and has not filed any documents in order to disprove the statement of the appellant, and therefore, the Deputy Commissioner of Labour-II has come to conclusion that the accident had occurred only in the course of employment under the first respondent. 8. It is also observed from the award passed by the Deputy Commissioner of Labour-II that the appellant has marked the R.C. Book and Insurance Policy of the first respondent's vehicle as Exs. 8. It is also observed from the award passed by the Deputy Commissioner of Labour-II that the appellant has marked the R.C. Book and Insurance Policy of the first respondent's vehicle as Exs. P4 and P5, and from which, It came to the light that the vehicle involved in the accident belonged to the first respondent and the same was insured under the second respondent on the date of accident. The second respondent in order to disprove the same has not placed any material or evidence at the time of interrogation, and therefore, the Deputy Commissioner of Labour-II has fixed the liability on the second respondent. Further, it is observed that the appellant has also marked his driving licence as Ex. P6, and only based on which, the Deputy Commissioner of Labour-II has fixed his age at the time of accident as 43. Moreover, it is observed that though the appellant has stated that he had earned Rs. 9,000/- per month when he was working under the first respondent, he has not placed any material before the Deputy Commissioner of Labour-II to prove his income, and therefore, his monthly income was fixed under Minimum Wages Act as per the order issued by the Government vide its G.O. (2D) No. 64, Labour and Employment (JI), dated 23.07.2009. However, the accident had occurred in the year 2010 and as per the G.O. issued on 31st May 2010, his income ought to have been fixed as Rs. 8,000/- per month. But the Deputy Commissioner of Labour-II without considering the said fact has erroneously fixed his income as Rs. 6,148/- per month, and the same is hereby modified as Rs. 8,000/- per month. 9. It is also observed from the award passed by the Deputy Commissioner of Labour-II that one Dr. Saravanabavanandham was examined as PW2 and has deposed as follows: "On 08.01.2011 I examined Mr. K. Rajagopal. He was injured in RTA on 06.05.2010. He was having bleeding from mouth due to upper lip injury. Loss of upper 2 teeth incisor. He sustained thoroxic injury. He had bilateral pleural effusion. Surgical procedure wherein 320 ml blood stained fluid was aspirated. He underwent an abdominal surgery in the resection of Ileum and end to and anesthumoses done. He had laceration of mesentry, Ileum and Ceacum. X-ray Fracture of left tibia. He underwent close reduction and Inter nailing. He sustained thoroxic injury. He had bilateral pleural effusion. Surgical procedure wherein 320 ml blood stained fluid was aspirated. He underwent an abdominal surgery in the resection of Ileum and end to and anesthumoses done. He had laceration of mesentry, Ileum and Ceacum. X-ray Fracture of left tibia. He underwent close reduction and Inter nailing. Now an examination along with fresh X-ray left tibia and ultra sonogram and abdomen. I assess the disability as below. He is having restricted mobility of left knew joint in flexion, extension and dorsa flexion. The Muscle strength and flexors and extensors Grade IV. Pain on left leg moderate for which I have given 6%. He has got mal united and shortening of left leg more from 1/2 Disability 20%/Extra points 15% for the following Different in Walking slope, Climbing stairs, Squatting, sitting. Abdominal injury: He has resection and Ileum, Present ultra sonogram shows multiple adhesion and abdominal weakness. Disability 14%. He has got permanent loss of 2 incisors 4%. Total (6+20+15+14+4) 59%" 10. The doctor who examined the appellant assessed 59% disability and he also marked certain documents i.e. Ultra Sonogram Report, X-Ray and Disability Certificate, in order to prove the same. The second respondent insurance company denying the above assessment stated in his cross examination as follows: "The shortening of leg is not mentioned in that discharge summary. Loss of 2 teeth is mentioned in discharge summary. While discharging all wounds healed. Abdominal injury, upper lip injury and muscle injury well healed. To say that, these injury will not affect his normal function is not correct. He said to be a driver. I met him earlier to examination and advised for ultra sonogram and X-ray. I am of the opinion that he cannot do his previous job which he was doing earlier. I am not aware if the individual has renewed the Driving Licence on 15.11.2010 and to deny the same profession. I deny that as per X-ray there is no malunion. I deny to say that disability will not arise for abdominal and muscular injuries. I deny to say that the disability is liked to help the petitioner. The percentage of figure disability when aggregated will be only on formula is correct. But for only upper lip injury done will come also. To say that different scale of disability to differ category of injuries will only gave erroneous disability. I deny to say that the disability is liked to help the petitioner. The percentage of figure disability when aggregated will be only on formula is correct. But for only upper lip injury done will come also. To say that different scale of disability to differ category of injuries will only gave erroneous disability. To say I referred to Medical Board the result and disability will affirm or negate the disability is correct." 11. The second respondent has also filed an interlocutory application in order to suggest the appellant for reexamination and confirm the disability, and the appellant has also not raised any objection for the same and hence the Deputy Commissioner of Labour-II, Chennai, has allowed the application and sent the appellant to the Medical Board, Chennai for reexamination. The Medical Board after reexamined the appellant assessed 5% disability and based on which, the Deputy Commissioner of Labour-II has fixed his disability as 5%. 12. However, when the doctor who examined the appellant at the first assessed 59% disability, the Deputy Commissioner of Labour-II has fixed only 5% disability based on the report of the Medical Board, which is found to be inappropriate and this Court is inclined to increase it to 10%. The sum of Rs. 1,75,585/- awarded towards Medical Expenses is quite reasonable as the appellant had spent huge for medical expenses and he has also placed all the medical bills to prove the same and hence the same is hereby confirmed. As per the terms provided under Section 4(A) of the Workmen Compensation Act, the appellant is entitled for interest along with the compensation, but the Deputy Commissioner of Labour-II has omitted to award the same. Hence, this Court is inclined to award the same. 13. In view of the above observations, the compensation awarded by the Deputy Commissioner of Labour-II, Chennai, is modified as follows: 1. Age at the time of accident 43 2. Age Factor 175.54 3. Monthly Income 8,000 4. Loss of Income 10% Compensation Amount (60/100 X 175.54 X 8000 X 10/100) 84,259 (+) Medical Expenses 1,75,585 Total Compensation 2,59,844/- 14. 13. In view of the above observations, the compensation awarded by the Deputy Commissioner of Labour-II, Chennai, is modified as follows: 1. Age at the time of accident 43 2. Age Factor 175.54 3. Monthly Income 8,000 4. Loss of Income 10% Compensation Amount (60/100 X 175.54 X 8000 X 10/100) 84,259 (+) Medical Expenses 1,75,585 Total Compensation 2,59,844/- 14. Accordingly, the second respondent insurance company is directed to deposit the entire award amount with interest at the rate of 12% per annum from the date of petition till the date of realization as fixed by this Court, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the appellant/claimant is permitted to withdraw the same by filing a formal petition before the concerned Court, less the amount if any, already withdrawn. 15. In the result, this Civil Miscellaneous Appeal is partly allowed and the substantial questions of law raised by the appellant are answered in favour of him. No Costs.