Allowed

Shaik Asif, v. Shaik Saleem and Another

Telangana HC6 Nov 2023CMA/1052/2011

Case brief

AI extract

What is this about?

A workman compensation appeal where the High Court held that the Commissioner erred in assessing loss of earning capacity. The Court enhanced the compensation amount to Rs. 1,54,711 by adopting a 65% disability rating and awarded interest at 12% from the date of the accident.

What did the court decide?

Compensation enhanced from Rs. 1,31,670 to Rs. 1,54,711 payable jointly and severally with interest at 12% per annum from the date of the accident.

Shaik Asif, Vs Shaik Saleem and Another — Pension and Retirement Benefits | Telangana HC (2023)

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t³²⁵³¹

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IN THE HIGH COURT^{FORTHE STATE OF TELANGANA} AT HYDERABAO

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MONDAY, THE SIXTH DAY^{OF NOVEMBER} TWO THOUSAND AND^{TWENTY THREE}

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PRESENT

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THE HONOURABLE SMT^{JUSTICE M.G.PRIYADARSINI}

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CIVIL MISCELLANEOUS APPEAL^{NO: 1052 0F 2011}

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Appeal Under Section^{30 Workmen's CompensationAct,1923, ag-ainstthe Order} Oaie?iiA-Oe-iO1O W.C.No.27^{of 2003 passedby the Commissioner for Workmen's} Compensation and Deputy Commissioner^{of Labour at Nizamabad'}

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Between:

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Shaik Asif, S/o. Shaik Yaqub,^{Ex-Cleanerof lorry bearingNo MH 26b3620} R/o. Biloli M and Tq, District^Nanded.

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...Appellant

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AND

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'l . Shaik Saleem S/o. Shaik Ahmed Hussain, Owner of the Lorry bearing NO' MH 26 B 3620 R/o. Biloli^(V) adn^{Tq, District Nended, State ofMaharastrura}

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The United lndia lnsurance^{Company Limited,, Through its Branch Manager'} Degloor Branch, Dist Nanded,^{MaharashtraState.}

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R -^'l dismissed vide Court Order^{dated11-07-2016}

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...Respondents

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Counsel for the Appellant : SRl.^{LAKKADI DAYAKARREDDY} Counsel for the Respondent^{No.2 : SRl.V VENKATARAMIREDDY}

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The Court delivered the following:^JUDGMENT

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i I I I I L

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THE,IIONOURABLE S^{MT. JUSTICEM.G.PRTTN)ARSINI} CIVIL MISCELL/INFO US^{APPEALNo. 1O52 OF 2()11}

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JUDGMI}NT:

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Di ssatisfied with the^{order dated 18.08.2010 in W C Case} No. 27. of 2OO3 NF^{passedby the Commissionerfor Workmen's} Compenr;ation and Deputy^{Commissioner of labour,Nizamabad} (for short 'the CommissionerJ,^{the claimant has filed the present} appeal.

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For the sake of convenience,^{hereinafter,the parties will} be referred as per their^{array before the Commissioner.}

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3- The brief facts of the^{case are that the claimanthasfrled} an ap:lication under^{provisionsof theWorkmen's} Compensation AcL, 1923^{(amendedas Employees'compensation} Act) (for short 'the Act')^{claiming compensation of Rs'S,OO,OOO/-} lor the injuries sustained^{by him in the accidentthat occurred} on 09.C3.20O1. It is stated^{that on the fateful day, upon} instruct ons o[ the opposite^{party No' 1, employer, the claimant} as a clezLner was^{proceeding on lorry bearing No. MH 26 B 3620'} ou,ned ty opposite party^{No.1, employer, insured with opposite} party N,). 2, insurer, from^{Banswadato Nizamabad' At about} 04:00 p m., when the^{said lorry reachednearVarni bus stand,} the driv:r of the said^{lorry lost controloverthe vehicle, due to}

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\ MCP,J \ CMA No. 1052 of20t t

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which, the said Iorry turned turtle and fell into a ditch. As a result, the applicalt sustained fracture of right leg, fracture of skull, fracture of left hand, fracture of ribs and multiple injuries all over the body. Immediately, he was admitted in Osmania General Hospital, Hyderabad. Based on the complaint, the Police, Varni Police Station, registered a case in Crime No. 27 of 2OOl. According to the claimant, he was hale and healthy, aged about 19 years and earning monthly salary of Rs.S,OOO/- and batta of Rs.50/- per day as cleaner under the employment of opposite party No. 1. Due to the accident, he suffered permanent disability and lost his earning capacity. Thus, he prayed to award compensation of Rs.5,O0,0O0/-.

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Before the Commissioner, the opposite party No. I , employer, filed counter admitting that the claimant was employed under him as cleaner on the said lorry and sustained injuries while performing his duties. He also admitted rhar the claimant was being paid salary of Rs.3,OOO/- per month and batta of Rs.75/- per day. He further stated that the said lorry was insured with opposite party No. 2. Hence, prayed to dismiss the application against him. On the other hand, the opposrre party No. 2, insurer, hled counter denying the averments of the application such as employee-employer relationship, satary, agc

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MCP,J CMA No. 1052 of20l I

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of the claimant and manner of accident. He further contended that unless and until it is proved that the claimant sustained injuries during the course of his employment and the driver of the said lorry was having valid and effective driving licence, the Insurance Company is not liable to pay the compensation. He lastly centended that claim is excessive and exorbitant and prayed t.o dismiss the application.

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On behalf of the claimant, AWs. I & 2 were examined and Exs.A. I to A.9 were marked. Ex.A. 1 is the certified copy of FIR, Ex.A.2 is the certified copy of charge sheet, Ex.A.3 is the certihec copy of injury certificate, Ex.A.4 is the disability certifica te, Ex.A.S is the discharge summary issued by Osmania general hospital, Hyderabad, Ex.A.6 is the prescription by Dr.P.Sudarshan, Ex.A.7 is the pathological report, Ex.A.8 is the photostat copy of insurance policy and Ex.A.9 is the CT scan report. On behalf of opposite party Nos. I and 2, none was examin,:d but Ex.B.1, copy of insurance policy, was marked.

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Tne Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of claimar t as Rs. I ,792 / - per monrh, by applying the factor '221.37' for the age of claimant being 22 years, by fixing percentage of loss of earning capacity at '55%', has awarded

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4 MGP-J CMA No. 1052 of20l )

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compensation of Rs. 1,31,670/-. Dissatisfred with t.I e same, the claimant preferred the present appeal.

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Heard learned counsel for the claimant and learned Standing Counsel for the Insurance Company. Perused the material available on record.

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Learned counsel for the claimant contended that the Commissioner ought to have fixed the income of claimant at Rs.S,OOO/- per month. He further contended that as per the decision of the Apex Court, the Commissioner ought to have fixed the interest rate at l2%o per annum from the date of accident and prayed to a-llow the appeal.

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On the other hand, learned Standing Counsel for the Insurance Company sought to sustain the impugned order of the Commissioner contending that considering all aspects including the nature of injuries sustained by the claimant and the period of treatment, the Commissi,oner has awarded reasonable compensation and the same needs no interference by this Court.

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lO. [n view of the rival contentions, this Court has perused the evidence available on record and found t].at the claimant examined himself as AW. 1, reiterated the contents of the

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'*:

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MGP,J CMA No. 1052 of20l I

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appli(:ation and deposed about the manner of accident and injuries sustained by him, in order to prove the same, he got exam:ned. AW. 2, Orthopedic Surgeon AW.2, in his chief exam:nation, deposed that he examined the claimant clinically and- radiologically on O7.O2.2OO3 and found that the claimant susta Lned malunited fracture of tibia of right leg with wasting of leg rruscles and pain on walking. He also deposed that he asses;ed the percentage of loss of disability at 600/o and loss of earnfurg capacity at 650/o as the claimant suffered malunited with restricted and painful movements of right leg are permirnent partial disability. Further, it is the case of the claimirnt that he cannot discharge his duties as cleaner with the same efficiency as earlier. The Honourable Supreme Court in In the United India Insurance Company Limited v. S.K.Razak and cthersl, the High Court for the erstwhile State of Andhra Prade sh held as follows:

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'What is of significance in the euidene of both tle witnesses is that tlrcg houe spoken on tlrc disabilitg suffered by the claimant as a diuer. Neitler of them haue deposed that the disobLement hos reduced the claimants earning capacity in euery emplogment uhich Lte utas capable of undertaking at thot time. As noted aboue, tLrc claimant has merelg stated ttutt he is not utorking anyuhere else, from uthich it con be infened that though he is copable of undertoking uorks other than driuing, he is not undertaking such utorks. In order to be entitled for looo/o of loss of earning, it is

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'^{MaNL /,qPlo t tsrzot:}

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-.'I I i

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MGP,J CMA No. 1052 of20l I

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necessary for the claimant^{to proue tlwt he was not onlA} disabled to diuer, but^{also to perform ang otheruork} uhich he uas capdble of^performingat tle^{tine of} accident. The Commissioner^{has tlereforecommitted o} seriozs error in taking tle^{loss o/ eaming capacity at} 100% without consideing^the fact^tlat tle^daimant uas capable of performing utorks^{otlerthan diuing-"}

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in T.J.Parameshwarappa v. the^{BranchManager,New} India Assurance Company Limited^{andothers2the}

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Honourable Supreme Court^{heldas under:}

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"8- TIE perlEntage of^{petmanent di.sabilitg ts} expressed bA the Doctots tuith^{reference to the tthole bodg'} or more often thon not, tuith^{referetrce to a porticularlimb.} When a disobility certifrcate states^thot tle^{injured has} suffered pennanent disobilitg^{to an ertent of 45% of tle lefi} louer limb, it is not the same^{as45%opermanent disabilitg} ruith reJererrce to the wlnle bodg.^{Theertentof disabilifu of a} limb (or part of the^bodg) expressed^{in tenns of a percenlage} of the total functions of that^{limb, obuianslg connot be} assumed to be the extent of dAabilitg^{of tle u.tlale bodg. If} there is 6o0lo permanent dbabilitg^{of *rc nghf hanl' and. 8oo/o} peflnanent disabitity of lefi leg, it does^{rwt meanthat the} extent of pennanent disabilitg tttith^{reference to tleuhale} body i.s 14O"/" (that is 8oo/o^{plus60%o). If differentparts of the} bodg haue suffered different^{perentages of di-sabilities,tlrc} sum total thereof expressed in^{term.s of thc permanent} disobility tuith^reference to the^{uhole bodg, cannot obuiouslg} exceed l OOok.

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12- In Raj Kumar v. Ajay^{Kumar3 the Honourable Supreme}

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Court held as under

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"11. The Tribunal should not be a silent spedator when medicol euidence is tendered^{in regard.to the injuies} and their effect, tn particular the^{ertent of permnnent} disability. Secfions 168 and¹⁶⁹ of ttrc^{Act mnke it eui.dent}

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-, MANU/SC/ 1s r O/2022 I (20r tl l scc 343

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MGP,J CMA No. t052 of20l I

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! rl! I ti i l

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i i i. {I 1 II . I tF I

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that the Tibunal d-oes not function as a neutral unq)ire as in a ciuil suit, but as an actiue explorer and seeker of tnttll who is required to^'lnld an enquiry into the claim, for determtning |lLe :just compen-sation'. The Tribunal sllould therefore take zn actiue role to ascertain th.e true and cotrect position so lhat it can assess the .just compensation,. While dealing taith personal injury ca_ses, th,e Tibunal slnuld preferabtA equrp 'tself with a Medical Dictionary and. i iandbook- for zualuation of pennanent phgsical impainnent lfor example ,he Manual for Eualuation of permanent phgsicai Impairment ' .br Orthopedic Surgeons, prepared bg American Acidemy of t)rttapedic Surgeon-s or its Ind ion equiuolent or other outLnrized texts) for understanding the medical euid.ence and. rzssessing the phgsical and functional disabilitg. The 'lribunal mag also keep in uietu the frst scleduli to the M2*men's )ompensotbn__Ac4 1923 u.thich giues some rndication about the ertent of pemnnent aisobilitg tn dffirent tgpes of injuies, in th,e case of ulorkmen. If a Doctor living^{euidence uses} technical medical terms, thi Tibunat :;hould instntct him to state in addition, in simple non_ tnedical terms, the nature and tlrc effect of the injury. If a tlodor giues euidence about the percentage of jeianent tli^sabilitg, the Tibunal has to seek claijicaiion aslo ulrcther :uch percentage of disability is the functional disabititg wittt r eference to the uhote bodg or tuhether it is ontl uith r.efereny to .a limb. If the percentage of permanent diabilitg i; stated utith rekrence to a limb, the Tibunal wi haue to seek the doctor's opinion os to uhether it is possible to cte.duce ^tfrc conesponding functional perrnaneit di,sabilitg tlith reference to the uhole bodg and if so the percentage.

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ThE Tibunsl should also act with caution, if it 1roposed^{to accept the} expert euidence of doctors ulho did not tieot tlle injured but tuho giue 'readA to use' disabititg c?rtificates, utithout proper medical asjessment. There are seueral in-sto-nces of unscntpulous doctors raho tuitlnut h eating the injured, readilg giuing tiberal d.isability c?rtificates to help the claimants. But u.there the disabiliig o.zrtiftcates are giuen by ctutg constituted. Med.ical Board_i, tlleA .maA be orcepted subject to euidence regarding the g erutineness of such ceftirtcebs. Tle Tribunal ruay irtuaiablg make it a point to require the euidence of thL Loctor u-tla treated the injured or who assesseil the pznnanent disabilttg. Mere production of a disabilitg a?rtiflcate or Dbcharge Certirtcarc utilL not be proof of the e-ctent of disabilitg stated therein unless the Doctor' uho b eated the claimant or uho medicaltg examined. and. assessed the ertent of disttbility of claima.nt, is tendered for ct oss- examtnation Luith reference to the certificate. If ihe

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MGP,J CMA No. t052 of2011

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Tibunal is not satisfied with the indicat euid.ence produced. bg the claimant, it can constitute a Medical Board. (from a panel maintained bg it in consultation ulith reputed locat Hospitals/ Med,bal Colleges) and refer the claimant to such Medical Board. for assessmenf of the disabilitg."

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In view of the principle laid down above and as per the evidence of AW. 2 i.e., the doctor has assessed tJ:e partial permanent disability at 6o,yo and loss of earning capacity at 657o. However, the Commissioner has not considered the same and erroneously hxed the percentage of loss of earning capacity as 55%. It is pertinent to note that the applicant sustained malunited fracture of tibia of right leg with wasting of leg muscles and developed restricted and painful movements of right leg on walking, as such it was not possible for the applicant to perform his cleaner duties with same eflicienry as he was doing on the date o[ the accident. Therefore, considering the nature of injuries sustained by the applicant and t]le nature of the duties discharged by the applicant, this Court is inclined to fix the percentage of loss of earning capacity at 65yo in consonance with the evidence of AW. 2.

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Coming Lo the quantum of compensation, the claimant stated that he was earning Rs.S,OOO/- per month and batta of Rs.5O/- per day as cleaner under the employment of opposite party No. 1 However, no oral or documentary evidence is filed

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MGP,J Ct"L4 No. t0s2^of 20lt

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to pro /e his income. Hence,^{considering the age,avocation of} the applicant and minimum^{rates of wages as per G O No' 30} labour, employment,^{training and factories (Lab-II)dated} 27.O7.2OO, the Commissioner^{has rightly frxed the monthly} incom,: of the claimant at^Rs. 1,792/-^{and tlte same is not} disturbed herewith. Therefore,^{the claimant is entitled for the} compensation of Rs.1,54,7111-^{(Rs-L,7921-x 6011OOx 65/10O} x22r.371.

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Insofar as rate of^{interest is concerned,as per the} decisi<>n of tlre Honourable^{SupremeCourt in P- Meenaral u. P,} Adlgurusamgf , held as under:

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"70- As^regards the^{date of commencement of the} tiobilitll of interest, the learned^counsel for^{tlleappellant} appears to be risht tlvt^{euen in the case of PratapNarain} Sinqh Deo^(swra), this Court^{has not laid down the law} that the interest tuould^{be payable onlq 30 daas Qfter the} accident. In our vielu^too, tle^{sandstdtutoru periodof3O} dags does 'i;ot^put a moratortum^{ouer the liabilitu of interest-} Such interest is related^u.)ith ttle^{omount of compensqtion} receiuabLe bg the claimant and^{there appears no reason} for not allouing interest for 30 daus from^{the date of accident-} In fdct, in tle refened decisions^{too, thisCourt has qlLoued} interest from tlle date of accidenL^{Thdt beinqtheposition,} the^{qtestionedpart} of the order of^{theHLqhCoutl calls for} interference and tle same is^{modiliedto the extentthatthe} appellant uould be entitled to^tnterest front^{the date of} accident-"

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o ci;l , \ppeal No 2O9 of2o22, decided on 6 January 2022

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MGP,J CIrA No. 1052 of 2U t

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In Shobha and others v. The Chairman, Viothalrao Shinde Sahakari Sakhar Kartrhana Limited aad otherss, the

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Honourable Supreme Court held as under:

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'4.1 Thus, .7rrom Section 4A oI the Act, lg23 compensation under Section 4 shc.lt be paid. as soon as it falts due. It can be seen thnt the liabitttu to pa! th.e iiiriJ iriit* amount of compensation due and. pagable would be ' under Section 4A(3)(a) and tte penalty utould. be leuiable unrler Section 4A(3Xb). As per Section an(fx"), the emploger sholl pau, in adrlition to te amount of tle anears, sirile interest tlereon @, l2yo p.a. or at such highEr rate ,wt exceeiina the moximum of *e lending rates of anA scneautea iii os mag be specified. on the amount due. As per Section O 4A(l) compensation undersection 4 shall be patd o"-"ror, ^ .falls^{due.Therefore,} on the death of the emplouee/ai"ua itnmediatelu, the amount of compensation can be said. to be .fallinq^{due.Therefore,} the tituilitu to pau the -ipoiit_n tuould arise tmmediatelg on the deoth oJ the a""*r.il.. eii- o" per Section 4A(2), in cases, where the emploger d.oes not accept the liabilitu for contprcnsaton to the extent ifuimea, ne sni-oe ?.oy:!^{bmake prouisionalpallment basedon the} extent oS liabilitu uhich he accepts, and, such paltment inol- a" deposited uith the Commissioner or made to tle emplogee, as the case maa be, uithout prejudice to the ight oftto eiiiiaee to make any furttler claim. Therefore, the liabiiitu a p"ilto compensation would aise from the date on tuhich ite dieasea died for uhich he ts entitled to the compensation ana tireire, the liabitity to paa tLLe interest on n" i^i"iiior anrears/ compensation sha be from ttrc date of accident and not from the d.ote of the order passed bg the Commissioir. As per Section 4A(3Xb), if the Commissioner is sotisfed that tlrcre is no iustificotion for the delou, tl con direct the enp,loller, in addition to the amount of the anears and interest theieon, to pa.tl a fiarther sunt not exceedinq 5Oo/, <tf such amount bu uau of penaltu. Thus, prouision for intelest and prouision fri p"i"tty are dilferenL As observed heretnaboue, tne prousion for leug if inlerest uould be under Section aA (l) (a) and the p;uisio; for leug of penalty woutd be under Secrion 4A Ot b). Wtule tf,e directino the empLouer to paq the interest from n" i"L "f order passed bg the Commisstoner, the Mgh Cnurt lrcLs not at all considered Section .lA (J) (a,l and has considered Sectiol 4A (3) (b) onlg, uhich is the penaltA prousion."

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'^zozz i:;^annr

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,IIG P,J CMA No 1052 of20) I

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f 6. I r view of the principle laid down in the above said citatiorrs, it is evident that the claimant is entitled for interest at 12o/o p<:r annum on the compensation amount from the date of accident till the date of deposit. Hence, this Court is inclined to award interest at l2%;o per annum on the compensation amount from the date of accident till the date ofdeposit.

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ltccordingly, the Civil Miscellaneous Appeal is allowed by enhanr:ing the compensation amount from Rs. | ,31 ,670 / - Lo Rs.1,54,711l- to be payable by the opposite party Nos. I and 2 jointly and severally. The enhanced compensation amount shall carry interest at l2%o per annum from the date of accident till the da-e ofdeposit. There shall be no order as to costs.

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)ending Miscellaleous applications, if any, shall stand

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closed

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SD'. M VIJAYA^BHASKER, JOINT REGISTRAR.

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/ffRUE COPY//

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$r'

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SECTION OFFICER