Partly allowed

DM the Oriental Insurance Co. Ltd. Hyd v. Syed Zaheer and Another

Telangana HC4 Sept 2013CMA/1952/2002

Case brief

AI extract

What is this about?

In a personal accident compensation appeal, the High Court held that the Commissioner erred in assessing 100% loss of earning capacity against a medical finding of 60% disability. The Court reduced the compensation amount accordingly. A cross objection regarding wage enhancement was dismissed due to lack of evidence supporting the claimed salary over the minimum wage fixed.

What did the court decide?

Compensation awarded reduced from Rs.3,31,960/- to Rs.1,99,177/-; cross objections dismissed.

DM the Oriental Insurance Co. Ltd. Hyd Vs Syed Zaheer and Another — Telangana HC (2013) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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WEDNESDAY, THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND THIRTEEN

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PRESENT

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THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR

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CIVIL MISCELLANEOUS APPEAL No.1952 of 2002 & CROSS OBJECTIONS (SR).No.56259 of 2002

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BETWEEN

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The Oriental Insurance Co. Ltd.

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... APPELLANT

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AND

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Syed Zaheer and another.

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...RESPONDENTS

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Counsel for the Appellant: MR. T. RAMULU Counsel for the Respondents: MR. B. PARAMESWARA RAO

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The Court made the following:

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JUDGMENT:

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CMA.No.1952 of 2002:

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In this appeal by the insurance company against the award passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour – IV, Hyderabad in W.C.No.114 of 2001 dated 16.05.2002 the only question that requires consideration is whether the Commissioner was justified in treating the loss of earning capacity of the claimant at 100% though the disability certificate assessed the disability at 60%.

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2. The evidence on record, particularly, that of P.W.2,

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the Orthopedic Surgeon, shows that the respondent/claimant sustained Grade I compound fracture of left tibia and right foot fracture and of stiffness of foot. Based on the recovery made by him after treatment, his disability was assessed on Bride Scale at 60%.

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The respondent/claimant worked as a driver of the Goods Van and mere fractures, which have been treated, have, however, been assessed by the Commissioner as 100% loss of earning capacity.

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3. The evidence, on record, does not support the conclusion drawn by the Commissioner that the disability is 100%.

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The respondent/claimant was only 26 years at the time of the accident and mere fractures, suffered by him, cannot be said to cause disability of such an extent when the said fractures are appropriately treated by an Orthopedic Surgeon and the disability certified by the Orthopedic Surgeon is only 60%. The compensation awarded treating the said disability at 100%, therefore, requires appropriate modification reducing the disability to 60%.

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In the result, the appeal stands allowed in part to the extent of reducing the compensation awarded from Rs.3,31,960/- to Rs.1,99,177/- (Rs.2570 x 215.28 x 60/100 x 60/100 = 1.99,177/-).

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CROSS OBJECTIONS (SR).No.56259 of 2002:

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5. The respondent/claimant filed cross objections seeking enhancement of the compensation on the ground that though the wages claimed by him are Rs.4,000/- per month and batta of Rs.50/- per day, the Commissioner has taken the minimum wage at Rs.2,570/-. According to the respondent, there was no reason for reduction of the said salary claimed.

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6. I have seen the evidence on record and except P.W.1, claimant himself, there is no evidence in support of the said claim for salary, as neither the employer is examined nor any salary certificate is filed.

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Learned Commissioner, therefore, has rightly held that there is no evidence in support of the salary claim, as made by the respondent, but, however, fixed the minimum wages in terms of G.O.Ms.No.81 Labour Employment and Training and Factories Lab-II Department dated 02.12.2000. The wage fixed at Rs.2,570/-, therefore, cannot be said to be unjustified.

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7. So far as loss of earning capacity is concerned, the appeal filed by the insurance company is already disposed of, as above, considering the evidence on record and finding that the loss of earning capacity is 60%. In view of that, the cross objections are liable to be dismissed and are accordingly dismissed.

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In the result, the civil miscellaneous appeal is allowed in part above and the cross objections are dismissed. The miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.

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_____________________ VILAS V. AFZULPURKAR, J September 4, 2013 DSK

DM the Oriental Insurance Co. Ltd. Hyd v. Syed Zaheer and Another

Case brief

What is this about?

What did the court decide?

DM the Oriental Insurance Co. Ltd. Hyd v. Syed Zaheer and Another

Case brief

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What did the court decide?

What the court decided

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