Allowed

Injam Prasada Reddy at Prasad v. D. Venkateswara Rao and Another

Andhra Pradesh HC1 May 2024CMA/672/2009

Case brief

AI extract

What is this about?

A lorry cleaner whose leg was amputated after an accident appealed for enhancement of compensation fixed by the Commissioner at 50% disability. Following Supreme Court precedent on functional disability of manual workers, the Court treated loss of earning capacity as 100%, recomputed compensation at Rs.2,57,872.71 and allowed the appeal.

What did the court decide?

Compensation enhanced to Rs.2,57,872.71 plus statutory interest from date of accident; Commissioner's order set aside; no costs.

Injam Prasada Reddy at Prasad Vs D… — Labour and Industrial Disputes | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AMARAVATI THURSDAY ,THE SECOND DAY OF MAY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

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CIVIL MISCELLANEOUS APPEAL NO: 672 OF 2009

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Appeal under Section 30 of Workmen’s Compensation Act, aggrieved by the Order Dt. 01-11-2007 in W.C.No.38 of 2005 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Vijayawada.

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BETWEEN:-

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Injam Prasada Reddy @ Prasad, S/o. Saida Reddy, aged³³ years, C/o. K. Srinivasd Reddy, D.No.1-127, Indira Nagar, 1 Ward, Yanamalakuduru Post, Penamaluru Mandal, Krishna District.

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...APPELLANT/ (APPLICANT) AND

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D.Venkateswara Rao, S/o. Sambaiah Sattenagudem Post, Vissannapet Mandal, Krishna District.

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The United India Insurance Co., Ltd., Rep. by its Divisional Manager, Patamata, Vijayawada.

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...RESPONDENTS

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Counsel for the Appellant:- SRI. N SUBBA RAO

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Counsel for the Respondents:- SRI. M.V. RAJA RAAM

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The Court made the following :-

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THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

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CMA No.672 of 2009

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JUDGMENT:

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.1. The present C.M.A is filed aggrieved by the Order dated 01.11.2007 in W.C.No.38 of 2005 passed by the Commissioner for Workmen’s Compensation and the Assistant Commissioner of Labour, Vijayawada.

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The claimant is the appellant herein and the facts leading to the present appeal are as follows:-

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The claimant was working as a cleaner in a lorry bearing No. AP 16 U 6929 of O.P.No.l. On 27.09.2003, while the claimant was attending his duties on the lorry near main gate of^{LimeSteelKarkanaat} Bhugal in Maharashtra State, the driver of the lorry^{drovethevehicleina} rash and negligent manner without instructions to him in a rash and negligent manner had reversed the stationery lorry. As a result, the lorry ran over his left leg, immediately after the accident,^theclaimant was shifted to Government Hospital, Sewagram and subsequently^wasshifted to University General Hospital, Vijayawada and then was shifted to Government General Hospital, Guntur. In the course of treatment, the left leg of the claimant was amputated upto knee joint and^{thathesustained} total permanent disability. A crime in Cr.No.50 of 2003 was registered by Sewagram P.S., of Maharashtra State. The claimant made a claim on the premise that he is aged 30 years and was being paid Rs.2,500/- per month as salary by O.P.No.l and therefore sought for compensation @ Rs.3,00,000/-. O.P.No.l remained absent and was set ex parte. O.P.No.ll i.e. insurance company filed their counter opposing the contents with regard to wage, employment and disablement due^{totheaccident.} In the course of enquiry, the claimant examined himself^asA.W.1 and

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Dr.V.N.Krishna Prasad was examined as A.W.2. No witnesses were examined by the insurance company. The claimant filed as many as 13 documents which were marked as Exs.A.1 to A.13 and the insurance company got marked Ex.B.1 insurance policy.

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The Commissioner framed four issues, which are extracted as hereunder:-

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i) Whether the applicant Injam Prasada Reddy is a workman under Section 2(1 )(n) of the Workmen’s Compensation Act?^{Andwhetherthe} accident has arisen out of and in the course of employment^andwhether the applicant sustained any permanent disablement?

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ii) What is the age, wage of the applicant workman^andwhat is the percentage of Loss of earning capacity?

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iii) What is the amount of compensation?

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iv) Who are liable to pay compensation to the applicant?

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On issue No.1, the Commissioner held that the accident occurred in the course of employment. As regards the compensation, the Commissioner taking into consideration the minimum wages payable to the cleaner as per G.O.Ms.No.30, dated 27.07.2000^underMinimum Wages Act and the percentage of disability @ 50% in spite the evidence of A.W.2 i.e. Dr.V.N.Krishna Prasad awarded compensation of Rs. 1,28,936/-. The claimant filed the present appeal seeking for enhancement of compensation. In the grounds of appeal, it was contended that whether the finding of the Commissioner in fixing the earning capacity of the workman on par with Part-11 of Workmen’s Compensation Act, 1923 though the claimant was incapable of doing any work by virtue of amputation.

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Heard proxy counsel for Sri N.Subba Rao, learned counsel^forthe appellant and Smt.A.Jayanthi, learned counsel representing the respondents.

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The counsel for the appellant contended that A.W.2^{Dr.V.N.Krishna} Prasad, who worked as Assistant Professor of Orthopaedics in G.G.H. Guntur since the year 2002 was examined as A.W.2 and deposed that the amputation was done on 28.10.2003 to the left lower^limb of the claimant. It was also deposed that though the physical disability is 40 to 45%, the disability being permanent, the applicant can no longer discharge any duties as cleaner and that loss of income has to be assessed @100%. In view of the medical opinion, the^{claimantisentitled} for loss of income @ 100%.

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The counsel for the insurance company contended that^100% compensation cannot be awarded as the claimant can be employed in any table job and it cannot be said that there is the total loss earning capacity of the claimant.

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In the light of the submissions made by the respective counsels, the substantial question of law is “whether loss of income earning ability of the appellant has to be assessed @100% even though the physical disability is 40-45%?

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It is true there is a possibility of the appellant being engaged in any table job and there may not be a loss in total income.^{Thefactthatthere} is a possibility of the claimant being employed in any table job cannot be a ground to deny compensation @ 100% as the Courts cannot go by hard possibilities, but would rather look at status as on^thedate. It is not the case of the Insurance that the appellant was engaged in any job during pendency of the claim before the Commissioner. The claimant having been involved in physical jobs like cleaner and other^{associatednatureof}

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works and being uneducated may not find jobs on mere asking. It is also not the case of the Insurance company that the appellant is skilled in any table job.

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It is not uncommon that a private employer would be un-accommodative to provide employment to physically disabled and more so, to an uneducated and whose movement is restricted. 11. The Hon’ble Supreme Court in Indra bai Vs Oriental Insurance Company Ltd.^ while considering whether permanent disablement^ofleft hand of a loading and unloading worker, which was medically^assessed @ 40%, held that considering the nature of work, the disability should be taken @ 100% as she cannot do the work of loading and unloading work. The observation at paragraph 31 of the above Judgement^{isextractedfor} ready reference.

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"Para 31. In the instant case, on the basis of medical certificate provided by the Board, the Commissioner found the appellant unfit for labour inasmuch as there was complete loss of grip In appellant's left hand. Prior to the accident, the appellant worked as a loading/unloading labourer. Even if she could use her right hand, the crux is whether she could be considered suitable for performing her task as a loading/unloading labourer. Such a task is ordinarily performed by using both hands. There is no material on record from which it could be Inferred that the appellant was skilled to perform any kind of job by use of one hand. It is also not a case where the appellant had the skill to perform her job by using machines which the appellant could operate by using one hand. In such circumstances, when the Board had certified that the appellant w/as rendered unfit for labour, there was no perversity^{inthedecisionofthe} Commissioner in awarding compensation by treating the disability as total on account of her functional disability. Consequently, no question of law, much less a substantial one, arose for consideration by the High Court so as to allow the appeal in exercise of power under Section 30 of the Act. In

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^ 2023 LiveLaw (SC) 543

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c//

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our considered view, the High Court erred in partly setting aside the order of the Commissioner and assessing the disability as 40% instead of 100%, as assessed by the Commissioner. ”

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Therefore, considering the nature of job being performed by the claimant and the evidence of A.W.2, this Court deems it appropriate to treat the loss earning capacity of the claimant @ 100%.^Thereworked compensation as per Section 4(i)(c) of Employees’ Compensation Act, 1923 is as under:-

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60/100 X 2181X 197.06 = Rs.2,57,872.71 ps.

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The insurance company shall make the payment along with statutory rate of interest from the date of accident till date of payment within a period of 3 months.

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The order of the Commissioner for Workmen’s Compensation^and Assistant Commissioner of Labour, Vijayawada in W.C.No.38 of 2005 dated 01.11.2007 is set-aside and the C.M.A stands allowed.

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There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.

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SD/-P.VENKATA RAMANA JOINT REGISTRAR

//TRUE COPY//

^SECTION OFFICER

To,