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2023 DIGILAW 958 (AP)

Undralla Chinna Rao v. N. Babu Rao

2023-07-03

VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT 1. This Civil Miscellaneous Appeal is preferred under Sec. 30 of Workmen"s Compensation Act, 1923 (in short The Act") against the impugned order dtd. 24/1/2006 in W.C. No.94 of 2004 on the file of the Commissioner for Workmen"s Compensation and Assistant Commissioner of Labour, Vijayawada (hereinafter be referred to as "the Commissioner"). 2. The Appellant herein was the Applicant. The respondent Nos.1 and 2 herein were the Opposite Party Nos.1 and 2 before the learned Commissioner.For the sake of convenience, the parties hereinafter will be referred to as arrayed before the learned Commissioner. 3. The case of the appellant in brief is that: The Applicant worked as a lorry driver under opposite party No.1. On 2/8/2003. While he was travelling from Madras to Visakhapatnam, when the vehicle reached Gokul Krishna Engineering College gate, he met with an accident and sustained grievous injuries to his right leg, resulting in permanent disability. He took treatment at Government Hospital, Sullurpet. The Police registered it as Cr.No.67/2003. Thereafter, he took treatment at Government Hospital, Vijayawada, and he underwent surgery and a steel rod was inserted. As the accident occurred during the course of employment, he sought compensation of Rs.3, 00, 000.00 along with 15% interest per annum as he used to get Rs.3, 500.00 per month as salary, apart from Rs.500.00 to Rs.600.00 per month as the batta before the accident. 4. Version of the Opposite Parties: The Opposite Party No.1 is the owner of the Vehicle, who is an ex-parte, did not choose to file the counter. Opposite Party No.2, who is the Insurance Company, filed the counter denying averments made in the petition and putting the applicant instrict proof of the contents of the petition as to his employment, wages paid and age, the manner in which accident was occurred and the income etc. 5. Enquiry - Finding: During the course of enquiry, the Applicant was examined as AW.1. The Doctor, who treated the Applicant, deposed as AW.2 (Exs. X1 to X4) and (Exs. A1 to A6) were the documents marked. The Opposite Party No.1 was examined as AW.3. No evidence was examined on behalf of the respondents. 6. 5. Enquiry - Finding: During the course of enquiry, the Applicant was examined as AW.1. The Doctor, who treated the Applicant, deposed as AW.2 (Exs. X1 to X4) and (Exs. A1 to A6) were the documents marked. The Opposite Party No.1 was examined as AW.3. No evidence was examined on behalf of the respondents. 6. After hearing both the counsel and on appreciation of the material on record, the learned Commissioner awarded compensation of Rs.70, 181.00 against the Opposite Parties and they are directed to deposit the amount within 30 days from the date of the receipt of the order. 7. Substantial questions of law: Having been aggrieved by impugned order, the applicant preferred the present appeal on the grounds that the learned Commissioner failed to appreciate in right perspective and the percentage of loss of earnings is not equivalent to percentage of disability, that there is a shortening of right leg about 3/4th, that the applicant cannot worked as driver as earlier to the accident, that the learned Commissioner ought to have held that the workman lost his entire earning capacity. The appellant framed the following substantial questions of law for consideration in the Memorandum of Appeal: 1) Whether the disablement sustained by the workman comes under the definition of total disablement" as defined under Sec. 2(1) of W.C. Act? 2) Whether the learned Commissioner is justified in fixing the loss of earning equivalent to the percentage of disablement sustained by the workman? 3) Whether the learned Commissioner can ignore the evidence of A.W.2 Doctor while determining the loss of earnings? 4) Whether the learned Commissioner is justified in ignoring the fact that the workman sustained permanent partial disability and there is shortening of leg, while determining the compensation? 5) Whether the learned Commissioner is justified in not awarding interest as per the provisions of W.C. Act? 8. Heard Sri K.Siva Prasad, learned counsel representing Sri N.Subba Rao, learned counsel for the Appellant and Sri D.Praveen Kumar, learned counsel representing Sri Challa Srinivasa Reddy, learned counsel for the respondents. 9. During the course of the arguments, learned counsel for the Appellant submits that though the disability certificate shows 30% of disability, the learned Commissioner has taken into consideration the evidence of AW.2. The Doctor, deposed that the disability is 15%, and that the disability and the loss of earning capacity are two different things. 9. During the course of the arguments, learned counsel for the Appellant submits that though the disability certificate shows 30% of disability, the learned Commissioner has taken into consideration the evidence of AW.2. The Doctor, deposed that the disability is 15%, and that the disability and the loss of earning capacity are two different things. Learned Commissioner ought to have taken the loss of earning capacity as 100%, since the applicant is a driver and after the accident he cannot worked as a driver. 10. Per contra, learned counsel for the respondents would submits that the learned Commissioner has rightly fixed the compensation. Since it is a non-scheduled injury, the evidence of the Doctor is the criteria to calculate the loss of earning capacity. 11. Having heard the submissions of learned counsel representing both parties, on perusal of the material on record, I am of the view, that since the applicant suffered injuries, which are not scheduled injuries, the evidence of the Doctor is the basis for the learned commissioner to arrive at the conclusion as to percentage of loss of earning capacity. In the present case, AW.2 is the Doctor, who treated the applicant. He deposed that the applicant suffered from 15% disability.Accordingly, the learned Commissioner calculated the compensation and this Court does not find any infirmity on this point. 12. Coming to the point of awarding the interest, the impugned order does not reveal awarding any interest on the claim, which is not sustainable under law. In Ajaya Kumar Das and another vs. Divisional Manager and Another, [2022] 1 S.C.R. 468 where the Commissioner awarded compensation alongwith interest of 12% per annum from the date of accident, the Hon"ble Apex Court had an occasion to reiterate the law at para 5 as follows; "The error on the part of the High Court has led a labourer and his spouse to travel all the way to this Court. Though the accident took place in 2000, the course of litigation would now end only with the present judgment. To set the record straight, the High Court has erred on merits as well. Though the accident took place in 2000, the course of litigation would now end only with the present judgment. To set the record straight, the High Court has erred on merits as well. Sec. 4A of theWorkmen's Compensation Act 1923, stipulates that the Commissioner shall direct the employer to pay interest of 12% or at a higher rate, not exceeding the lending rates of any scheduled banks specified, if the employer does not pay the compensation within one month from the date it fell due. In SaberabibiYakubhai Shaikh vs. National Insurance Co. Ltd., (2014) 2 SCC 298 this Court held that interest shall be paid on the compensation awarded from the date of the accident and not the date of adjudication of the claimin view of the decision of this Court in Oriental Insurance Co. Ltd. v. Siby George, (2012) 12 SCC 540 where it was held that, compensation would fall due from the date of the accident. Further, in the recent decision in P. Meenaraj vs. P.Adigurusamy and Anr., [Civil Appeal No 209 of 2022, decided on 6/1/2022 - Hon'ble Supreme Court of India. ] this Court reiterated that the applicant is entitled to interest from the date of accident while rejecting the submission that the award of interest should be after the expiry of 30 days from the date of accident. Thus, there was no legal basis for the High Court to delete the order of payment of interest." 13. In the light of the precedent, the Appellant is entitled to the interest@ 12% p.a. from the date of accident. 14. In result, the Civil Miscellaneous Appeal is partly allowed granting interest @ 12% p.a. from the date of the accident to till date. Rest of the claim is dismissed. No order as to costs. As a sequel, interlocutory applications pending, if any, in this Civil Miscellaneous Appeal, shall stands closed.