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2023 DIGILAW 1414 (AP)

Branch Manager v. Kasineni Srinivasulu

2023-10-31

K.MANMADHA RAO

body2023
JUDGMENT 1. The present Civil Miscellaneous Appeal is filed under Sec. 30 of the Workmen's Compensation Act, 1923 (for brevity "the Act") aggrieved by the order dtd. 15/3/2005 passed in W.C.No.52 of 2004 by the Assistant Commissioner of Labour, Cuddapah (for short "the Commissioner"). 2. The Appellant herein is the Respondent No.2/ Opposite Party No.2 and the respondent herein is the applicant/claimant in W.C No.52 of 2004. For sake of convenience, the parties are hereinafter referred to, as they are arrayed before the Commissioner. 3. The applicant has filed the impugned W.C.No.52 of 2004 before the Commissioner seeking for a direction to Opposite Parties No.1 and 2 under Workmen's Compensation Act, 1923 claiming compensation for Rs.4, 00, 000.00 with interest at 15% p.a. 4. Brief facts of the case are that on 15/9/2002 the applicant, who is working as a cleaner, along with driver left Cuddapah in a lorry bearing No.AP 04-T-8449 with the load of Sugar to go to Chennai. After passing Ramapuram, the driver stopped the said lorry and the applicant, got down from the lorry and while he was checking air to the tyres in the course and out of his employment one RTC Bus bearing No.AP 10-Z8109 of Palamaneru depot came from Cuddapha with high speed without hooting horn with a rash and negligent manner hit the rear side of the lorry and also applicant. As a result of which, he sustained fracture on his legs received injuries all over the body. Thereafter he was shifted to Govt. Hospital, Rayachoty for treatment. The driver of the Opposite Party No.1 preferred a complaint and it was registered in Crime No.87/2002 of Ramapuram P.S. Later, the applicant was shifted to Govt. Hospital, Cuddapah on the same day i.e., 15/9/2002 and he was patient upto 11/11/2002 and there he has undergone surgery for fracture shaft of left femur thigh and steel plates were inserted to the said fracture. He has spent nearly Rs.1, 00, 000.00 for medicines and treatment. The applicant was earning Rs.3, 000.00 per month wages at the time of accident. Due to said accident the applicant became permanently disabled and to that effect District Medical Board, Cuddapah has issued Disability Certificate at 55% of loss of earning capacity. He has spent nearly Rs.1, 00, 000.00 for medicines and treatment. The applicant was earning Rs.3, 000.00 per month wages at the time of accident. Due to said accident the applicant became permanently disabled and to that effect District Medical Board, Cuddapah has issued Disability Certificate at 55% of loss of earning capacity. Hence the applicant requested the Opposite parties to pay compensation since the said vehicle was insured with the Opposite Party No.2 and the policy was in force at the time of accident, and the driver was also having valid driving license. Therefore, both the Opposite Parties are jointly and severely liable to pay the compensation to the applicants. 5. Despite service of notice on the Opposite party No.1, neither attended nor filed the counter and hence, he was set ex parte before the Tribunal. The Opposite Party No.2 filed counter and denied all the allegations made in the petition and also denied for not adding the APSRTC as necessary party, the age, wage and employment of applicant, the permanent disability the entitlement of interest and compensation and thereby requested to dismiss the petition. 6. During course of trial, on behalf of the applicants, AW.1 and AW.2 were examined and Ex.A1 to Ex.A11 were marked. 7. The learned Commissioner, after hearing on both sides passed an order holding that both the Opposite Parties are jointly and severally liable to despot an amount of Rs.2, 75, 624.00 compensation besides Stamp duty of Rs.551.00 with interest at 12% p.a from the date of accident till its realization by means of D.D drawn in favour of Commissioner for Workmen Compensation and Deputy Commissioner of Labour, Kurnool drawn on State Bank of India, Kurnool, within 30 days from the date of receipt of the order and also held that if they have failed to deposit the awarded amount within the stipulated time they have to pay penalty under Sec. 4(A) 3(b) of the Workmen's Compensation Act 1923. 8. Heard Sri P. Ramanjaneyulu, learned Counsel appearing for the appellant and none represented for the respondents. 9. During hearing, learned counsel for the appellant submits that the order of the Commissioner is contrary to law, weight of evidence and probabilities of the case. 8. Heard Sri P. Ramanjaneyulu, learned Counsel appearing for the appellant and none represented for the respondents. 9. During hearing, learned counsel for the appellant submits that the order of the Commissioner is contrary to law, weight of evidence and probabilities of the case. He submits that the finding of the Commissioner that the applicant suffered 100% loss of earning capacity is illegal when the Medical Board assessed the loss of the earnings of the injured is only at 55%. He further submits that the Commissioner failed to see that it is not the case of the applicant that he was removed from the duties of the cleaner and he was not working as a cleaner after the accident without admitting that he is a cleaner. He further submits that the Commissioner erred in understanding and committed grave illegality in interpreting the evidence of the doctor that it is difficult for the applicant to work as a cleaner in the manner that the applicant is not fit for working as a cleaner and concluding that the applicant suffered 100% loss of earning capacity. He further submits that the Commissioner ought to have seen that there is no iota of evidence to prove that the applicant worked under the respondent No.2 herein nor was paid any amount much less than Rs.3000.00 as claimed by the applicant. He further submits that the Commissioner also erred in taking the age of the applicant as 30 years in the absence of any documentary evidence. Therefore, learned counsel requests this Court to consider the said facts and allow the appeal by relying on the substantial question of law, which reads as: i) Whether the awarding compensation treating total loss of earning capacity as 100% by the Commissioner in case of non scheduled injury, in the absence of any independent evidence, when the loss of earning capacity of injured is assessed at 55% by the Medical Board, more particularly, when the applicant neither pleaded 100% loss of earning capacity nor claimed or proved? ii) Whether the lower court is correct in applying the decision reported in 1997 ACJ 529 to the above case though the injured was not a skilled person and he was only a cleaner? 10. The respondents failed to argue the matter to disprove the contentions of the appellant herein. 11. ii) Whether the lower court is correct in applying the decision reported in 1997 ACJ 529 to the above case though the injured was not a skilled person and he was only a cleaner? 10. The respondents failed to argue the matter to disprove the contentions of the appellant herein. 11. The High Court of Andhra Pradesh in a case of "National Insurance Company Limited, Ananthapur vs. D. Sivasankar and another", 2006(4) ALD 398. wherein, the learned Single Judge, held that: "21. There is absolutely no quarrel with this proposition. The whole controversy would be, as to whether deviation from such a percentage is warranted, and an exercise contemplated under Explanation-II to Sec. 4(1) c (ii) was undertaken, before such deviation. In the instant case, except that the Commissioner had expressed his own personal view in the matter, no technical or scientific examination in the matter was undertaken. When amputation of the leg, below knee, is to result in loss of 50% earning capacity, under Entry-21, of Part-II of Schedule-I, mere stiffness in the leg cannot result, in 100% disability. The assessment must be realistic and not imaginary. " 12. The Hon'ble Supreme Court in a case reported in Indra Bai vs. Oriental Insurance Company Ltd and Another", 2023 LawSuit (SC) 674. wherein it was held that: "28. In light of the aforesaid decisions and the definition of the term "total disablement" as provided by clause (I) of sub-sec. (1) of Sec. 2 of the Act, it is the functional disability and not just the physical disability which is the determining factor in assessing whether the claimant (i.e workman) has incurred total disablement. Thus, if the disablement incurred in an accident incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement, the disablement would be taken as total for the purposes of award of compensation under Sec. 4(1)(b) of the Act regardless of the injury sustained being not one as specified in Part I of Schedule I of the Act. The proviso to clause (I) of sub-sec. (1) of Sec. 2 of the Act does not dilute the import of the substantive clause. Rather, it adds to it by specifying categories wherein it shall be deemed that there is permanent total disablement. 13. The proviso to clause (I) of sub-sec. (1) of Sec. 2 of the Act does not dilute the import of the substantive clause. Rather, it adds to it by specifying categories wherein it shall be deemed that there is permanent total disablement. 13. The proviso under Sec. 4 (c) of the Employees Compensation Act, 1923, where reproduced hereunder: 4. Amount of compensation : a).... b)..... c) Where permanent partial disablement result 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 it proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; 14. On perusing the entire material available on record, it is observed that the applicant cleaner has been assessed permanent disability 55% as per the Ex.A4 Disability Certificate issued by the Medical Board, Cuddapah, and as he is unfit to his cleaner job due to mal-union of fracture of shaft of femur with Osteomyclites discharging Sinus of lateral aspect of left thigh and restricted movements of left hip and left knee and hence the Commissioner has taken his permanent disability and loss of earning capacity has been equated to 100% and awarded compensation Rs.2, 75, 624.00. However, as per disability certificate, which is an admitted fact that the applicant suffered 55% disability, therefore the loss of earnings also taken into consideration at 55% only as contended by the learned counsel for the appellant and whereas, the learned Commissioner has decided 100% loss of earnings, which is untenable. 15. Therefore the quantum of compensation payable to the applicant i.e., 1st respondent under the Act is, age 28 years factor 211.79 x 60/100 x 55/100 x 2169 = Rs.1, 51, 592.92 which is rounded to Rs.1, 51, 593.00 (Rupees One Lakh fifty one thousand five hundred and ninety three only) only, which the claimant is entitled to. 16. 15. Therefore the quantum of compensation payable to the applicant i.e., 1st respondent under the Act is, age 28 years factor 211.79 x 60/100 x 55/100 x 2169 = Rs.1, 51, 592.92 which is rounded to Rs.1, 51, 593.00 (Rupees One Lakh fifty one thousand five hundred and ninety three only) only, which the claimant is entitled to. 16. Having regard to the facts and circumstances of the case, and on considering the submission of learned counsel for the appellant, this Court is inclined to allow the appeal in-part to the extent of 55% of disability and also considered the loss of earnings instead of 100%. The rest of ratio taken by the Commissioner for calculation for awarding the compensation amounts need no interference by this Court. 17. Accordingly, the C.M.A is partly allowed, while directing the 1st respondent/ applicant to withdraw an amount of Rs.1, 51, 593.00 only. The 1st respondent/ applicant is permitted to withdraw the same, without any further delay, as the claim of the 1st respondent is of the year 2004, which is oldest one, so also, the appellant is also permitted to withdraw the whatever the amount excess lying in the court deposit, after deducting the amount claimed by the 1st respondent/ applicant. There shall be no order as to costs. 18. As a sequel, all the pending miscellaneous applications shall stand closed.