Joji M. George, S/o. M. T. George v. Sabu M. I. , S/o. Iype M. I.
2025-05-02
SYAM KUMAR V.M.
body2025
DigiLaw.ai
JUDGMENT : (SYAM KUMAR V.M., J.) This appeal is filed challenging the order dated 27.05.2011 in WCC No.50 of 2008 on the file of the Commissioner for Workmen's Compensation, (Deputy Labour Commissioner), Kottayam. Appellant was the applicant in the WCC and respondents 1 and 2 were the 1 st and 2 nd opposite parties therein. Parties are here and after referred to as per their status before the Commissioner for Workmen's Compensation (CWC). 2. The applicant was a workman employed by the 1 st opposite party as a driver in the autorickshaw owned by him. The applicant suffered bodily injuries in an accident that occurred on 02.09.2006 in the course of and out of his employment with the 1 st opposite party.. At the time of accident, he was deriving a monthly salary of Rs.5,000/- and was aged 26 years. The applicant sustained fracture on the right inferior and superior pubic rumus and urethral injury. The vehicle was insured with the 2 nd opposite party and had a valid policy at the time of the accident. Applicant moved the WCC seeking compensation. After the preliminary inquiry, the 1 st and 2 nd opposite parties entered in appearance and filed their respective written statements. The 1 st opposite party admitted that the applicant was his employee and that the accident had happened during the course of his employment. The 2 nd opposite party in the written statement adopted a stand of total denial. The claims of the applicant, his status as a workman under the 1 st opposite party, the employer- employee relationship between them, the injury suffered, the disability and the claims regarding the age and monthly wages of the applicant at the time of the accident were denied. The CWC framed six issues and the parties proceeded to tender evidence. From the side of the applicant, AW1 and AW2 were examined and Exts. A1 to A7 were marked. No oral evidence was adduced by the 1 st and 2 nd opposite parties. Exts. R1 and R2 were marked. The CWC, after hearing the parties, held that the 2 nd opposite party is liable to indemnify the 1 st opposite party. The workmen's compensation payable to the applicant was fixed at Rs.38,122/- together with interest at the rate of 12%. Dissatisfied with the said compensation awarded, the applicant has preferred this appeal. 3.
Exts. R1 and R2 were marked. The CWC, after hearing the parties, held that the 2 nd opposite party is liable to indemnify the 1 st opposite party. The workmen's compensation payable to the applicant was fixed at Rs.38,122/- together with interest at the rate of 12%. Dissatisfied with the said compensation awarded, the applicant has preferred this appeal. 3. The following substantial question of law is drawn for consideration in this appeal: Whether the order of the CWC impugned herein is perverse and legally unsustainable for the reason that the monthly income of the applicant which was claimed and substantiated with evidence, had been substituted with a different amount, without any reasonable basis and in computing compensation based on the same? 4. Heard Sri.P.M.Joshi, Advocate for the appellant (applicant) and Sri.VPK Panicker, Advocate, for the 2 nd respondent (2 nd opposite party). 5. The learned counsel for the applicant submitted that the impugned order of the CWC is contrary to law, facts and evidence of the case and is hence liable to be modified. It was contended that the CWC ought to have found that the petitioner had substantial injuries as explained Exts. A1 to A3. The CWC failed to note that the permanent disability of the petitioner had been assessed at 10%. The deposition of AW2 doctor who had issued Ext.A6 disability certificate was ignored by the CWC. AW2 had asserted that the fracture caused due to the accident had led to malunion at the joint and that sensory deficit had also been caused. The CWC failed to consider the occupational disability that had been suffered. The applicant suffers from inability to do any work and cannot engage in any task requiring physical exertion. He cannot travel without the help of another person and hence the CWC erred in not granting a 100% loss of earning capacity. Though it had been validly brought out in evidence that the monthly salary of the applicant was Rs.4,000/- at the time of the accident, the CWC, without any valid cause or reason, reduced the same to Rs.3,000/- per month. The computation of the compensation thus made by the CWC in the impugned order, is erroneous and merits enhancement. 6. Per contra, the learned counsel appearing for the 2 nd opposite party submitted that no evidence whatsoever has been tendered to substantiate the contentions seen now put forth in the appeal.
The computation of the compensation thus made by the CWC in the impugned order, is erroneous and merits enhancement. 6. Per contra, the learned counsel appearing for the 2 nd opposite party submitted that no evidence whatsoever has been tendered to substantiate the contentions seen now put forth in the appeal. The same relate to factual aspects which cannot be interfered with or considered even in this appeal which ought to be limited to the consideration of substantial questions of law. The contentions with respect to occupational disability as well as a 100% loss of earning capacity are totally devoid of any substantiating material. The learned counsel thus submitted that the order of the CWC does not merit any interference and the appeal is only to be dismissed. 7. I have heard both sides in detail and have considered the contentions put forth. It is trite that an appeal under the Act would lie to this Court only on a substantial question of law. As per Section 30 of Workmen's Compensation Act, 1923 , the High Court cannot enter into the arena of findings of fact unless they are proved to be perverse and unless there is a question of law involved. Thus contentions put forth based on facts are beyond the purview of this appeal. [See Golla Rajanna and others v. Divisional Manager and another , [ (2017) 1 SCC 45 ] , Mayan v. Mustafa and another ( (2022 KHC 2356) ) and Salim v. New India Assurance. Co. Ltd. and another ( (2022 KHC 2357) )]. It is hence necessary to refrain from develving on such contentions on facts and to confine to substantial questions of law. 8. Nothing perverse had been pointed out by the applicant with respect to the appreciation of Exts.A1 to A7 rendered by the CWC. The conclusion arrived at in the said respect cannot thus be interfered with in this appeal. Moreover, the contentions with respect to occupational disability as well as a 100% loss of earning capacity are not substantiated by any record by the appellant before the CWC. Accordingly, I find no merit in the contentions put forth in the said respect. 9. As regards monthly income, it is trite that the employee is entitled to get compensation on the basis of actual monthly wages drawn by him.
Accordingly, I find no merit in the contentions put forth in the said respect. 9. As regards monthly income, it is trite that the employee is entitled to get compensation on the basis of actual monthly wages drawn by him. [See the dictum laid down by the Hon’ble Supreme Court in K. Sivaraman and others v. P. Sathishkumar and others [ (2020) 4 SCC 594 ] . I find merit in the contention of the appellant that the CWC erred in reducing the monthly wages of the applicant to Rs.3,000/- from the amount of Rs.5,000/- claimed by him without stating any reason. The substantial question is thus answered in favour of the applicant and against the 2 nd opposite party. The 1 st opposite party, employer, had admitted that the monthly wages paid to the applicant was Rs.4,500/-. No document had been produced to substantiate the same. Granting some leeway to the claim that had been put forth by the applicant, in the circumstances of the case, it is deemed fair, just and reasonable to re-fix the monthly wage at Rs.4,000/- per month and to calculate the compensation payable under Section 4 of the Workmen's Compensation Act, 1923 on the said basis. Accordingly, the compensation amount is re-fixed at Rs.50,830/- [4000x60/100x211.79x10/100 = Rs.50,829.60]. The applicant will also be entitled to interest at the rate of 12% per annum on the said amount from 02.09.2006. The order dated 27.05.2011 in WCC No.50 of 2008 on the file of the Commissioner for Workmen's Compensation, (Deputy Labour Commissioner), Kottayam shall stand modified to the above said extent. MFA (ECC) is disposed of as above. No costs.