Dismissed

United India Insurance Company Limited v. D.Prabhakar Rao and Anr.

Telangana HC11 Sept 2023CMA/1270/2011

Case brief

AI extract

What is this about?

The High Court dismissed an appeal by United India Insurance Company against a Commissioner's award of roughly Rs. 5.4 lakh for a workman's injury. The Court held that the appeal raised questions of fact, not law, and the Commissioner's assessment of disability was supported by medical evidence.

What did the court decide?

The Civil Miscellaneous Appeal was dismissed; no order as to costs.

United India Insurance Company Limited Vs… — Civil Procedure and Limitation | Telangana HC (2023)

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[^32s3 ]

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IN THE HIGH COURT FOR THE^{STATEOF TELANGANA} AT HYDERABAD

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MONDAY, THE ELEVENTH^{DAY OF SEPTEMBER} 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 MISC ELLANEOUS^{APPEALNO:1270OF 2011}

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Appeal Under Section 30^{Workmen'sCompensationAct, '1923, against the} order the Order dated^{17-03-2011 in WC No. 58/2008 on the file of the} commissioner for^{workmen's compensation aM Assistant commissioner of} Labour-ll, T.Anjaiah Karmika^{Samkshema Bhavan, RTC X Roads,at Hyderabad}

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Between:

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United lndia lnsurance^{Company Limited, rep by its Divisional Manager,DO-|,} Ramalaya Building, S.D.^{Road,Secunderabad.}

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...APPELLANT/2N'I OPPOSITE PARTY

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AND

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D.Prabhakar Rao, S/o^{GaniRaju, Aged 37 Years, Occ: R/o} '^{H'No.5-8-37/D'} Boduppal, Hyderabad.

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.....RespondenU APplicant

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M/s. Sony Transport,^{repby [vlr.K.PrabhakarRe'Ldy,havingoffice at A-21 and} 22, APIE, Balanagar, Hyderabad,^{Ranga Reddy District-}

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(R2 is dismissed vide C.O. daled^12.7.2016)

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...RESPONDENTS/1 "t Opposite Party

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Counsel for the Appellant:^{SRl. V SAMBASIVA RAO}

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Counsel for the Respondent^{No.1: SRISUBBAGARI SUDARSHAN REDDY} The Court made the^{following: JUDGMENT}

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THE EIONOURABLE SMT.^{JUSTICE M.G.PRTYADARSINI}

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CTVIL MISCELLANEOUS^{APPEALNo. 1270OF 2O11}

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JUDGMENT

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Aggrieved by the order dated^{l7.O3.2Ol Iin W-C.Case} No. 58 of 2O08^passed by the^{Commissionerfor Workmen's} Compensetion and Assistant^{Commissioner ofLabour-Il,} Hyderabad, the opposite^{party No. 2/lnsuranceCompany has} hled the tr)resent apPeal.

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

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Th<: brief facts of the case are^{that the applicant has filed} an application under the^{provisionsofWorkmen's} Compensation Act, 1923^{(amendedas Employees'compensation} Act) (for short 'the ActJ claiming^{compensationof Rs-6,OO,OOO/-} for the irLjuries sustained^{by him in the accidenttlrat occurred} on 22.Oii.2OO9. It is stated that on^{the lateful dav, on the} instructions of the opposite^{party No.l} ,^{employer, the applicant} was proc eeding as driver on bus^{bearingNo. AP 28 X 9OO9,} owned b]' opposite^{party No. 1, emplover,insureds'ith opposite} party No, 2, insurer, from Madhapur^{to drop the cmployees of} M/s.GIS software company in^{theirrespective places. Whenthe} said bus reached near Yousufgr-tda, in^{order to a'ert hitting of} the lorry which came in the^{opposite direction,the applicant}

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MGP,J cMA 1270_2011

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lost his control over^{the said bus, due to which, it ran over the} footpath. As a result,^{the applicant sustained fracture to his} both legs and other^{multipte injuriesallover the body'} Immediately, he^{was shifted to Gandhi Hospital, where he was} admitted as inpatient^{ftoro 22.05-2OO9to 15.O6.20O9.Based on} the complaint, the^{Police, JubileeHillsPolice Station,} Hyderabad, registered^{acase inCrime No' 24O of2009'} According to the applicant,^{he was hale and health,aged about} 34 years and earning^{Rs.5,OOO/- per monthas driver under the} employment of opposite^{party No. 1. Due to the accident,he} suffered^{permanentdisability and lost his earning capacity'} Hence, the applicant^{has filed theapplicationclaiming} compensation of^{Rs.6,OO,OOO/- against the oppositeparty Nos'} I and 2, who are^{jointly and severally liable to pay the} compensation.

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Before the Commissioner,^{theoppositepartyNo' l,} owner/employer,^{hled counter stating that the applicantwas} employed under^{him as driver on thc said bus and admittedthe} fact that the applicant^{sus[ainedinjuries while performing his} duties. He furthcr^{stateclthat the said bus was insured with} opposite party No. 2 and prayed to dismiss the application against him. On the other hand, thc opposite party No. 2, appellant herein,^{filed counter dcn-'"ing} [he averments of the

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MGP,J cMA 1270 201 r

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applicatio n such as employee-employer relationship, salary,^age of the aptr,licant and manner of accident.^{He furthercontended} that unler;s and until it is proved that the applicant sustained injuries during the course of his employment and having valid and effective driving licence, ttte Insurance Company is not liable to 1>ay the compensation. He lastly contended that claim is exces:;ive and exorbitant and prayed to dismiss the applicatic n.

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On behalf of the applicant, AWs. I and 2 were examined and Exs.A.l to A.9 were marked. Exs.A. I and A.2 arc the certihed :opies of FIR and charge sheet, Ex.A.3 is the original dischargt: card of Gandhi Hospital, Secunderabad, Ex.A.4 is the original <tisability certificate, Ex.A.S is the Photostat copy of RC of the brrs, Ex.A.6 is the Photostat copy of insurance policy, Ex.A.7 is the Photostat copy of driving licence of the applicant, Ex.A.S is the X-ray films and Ex.A.9 is the disability certificatc issued br the medical board. On behalf of opposite part_"- Nos. I to 3, norle was examined but Ex.B.1, copy of insurance polic-v documerrt, was marked.

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6- The Commissioner after considering the evidencc on record, troth oral and documentary, by determining the',vages o[ applicant as Rs.4,O0O/- per month, bv applving the factor

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MGP,J cMA_1270_2011

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'199.40' for the age of injured^{being 34 years, has awarded} compensation of Rs.5,41,932l^-.

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Aggrieved by the compensation^{awarded bythe} Commissioner, the opposite^{party No. 2/lnsuranceCompany} has filed the present appeal^{to set asidethe impugned order.}

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Heard both sides and^{perused the record.}

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g. The main contention^{of the learned Standing Counsel for} the opposite^party No.2/lnsurance^{Company contended that the} Commissioner has erroneously^{hxed the loss of earning capacity} at lOO% instead of^{7Oo/oas per the Scheduleof the Act and} prayed to dismiss the application against^{the lnsurance} Company.

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On the other hand,^{learned counselfor the applicant} sought to sustain the^{impugnedorder o[ the Commissioner} contending that considering^{all aspects includingthe age and} avocation of the applicant,^{thc Commissionerhas awarded} reasonable compensation^{and the same needs no interference} by this Court.

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1 1. In view of the rival^{contentions,this Court has perused} the entire record and^{found that the applicant himselfwas} examined as AW. 1 and in^{his chief examination, he reiterated}

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MGP,J CMA I27O 2OI I

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the avernrents of the application. In support of his claim, the applicant got examined AW. 2, Orthopaedic Surgeon. AW. 2 in his chief examination, deposed that he examined the applicant clinically and radiologically on 25.08.2010 and found that the applicant sustained closed fracture both bones of left leg and amputatir)n of right leg and the applicant could not walk, sit, squat wil.hout help. He further deposed that he assessed the disability at 7 5o/o and loss of earning capacity at 1o0o/o as the applicant could not perform his duties as earlier with the same efficiency and issued disability certificate under Ex.4. Though AWs. I and 2 were cross examined at length nothing was elicited t o discredit their statements. In the United India Insurance Company Limited v. S.K.Razak and othersr, the High Corrrt for the erstwhile State of Andhra Pradesh held as follows:

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"What is of significance in the euidence of both the uilnesses is that theA haue spoken on the disabitttg suffered bg the claimant as a driuer. Neither of them haue deposed that the disablement hns reduced the claimants eanung caltacitg in euery emplogment u-thich he uas capable of undertaking at tfiat time. As noted aboue, the claimant has merely stated that he is not u.torking angu.there: else, from ruhich it can be infened that though he is capable of un,Tertaking uorks other than diuing, he is not undertakinq such tuorks. In order to be entitled for looqi of ktss of eaning, it is necessary for the claimant to proue th(tt he uas noi only disabled to diuer, but also to perfomr antl other work which he u.tas capable of performing at the time of acr.'.[dent. The Commissioner has thereJore comntitted a setious error in toking the loss of eanting capactty ot t loy,)

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'^{trl,r.NU Lt' ollg/2015}

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MGP,J cMA t270 20t t

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Luithout consideing the fact tllat the^{cLaimanttuas capableof} perfonning uorks other than diuing."

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12- Further, in T.J.ParameshwaraPpa^{v. theBrauch}

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Manager, New India Assuraace^{Company Limited and}

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others2 the Honourable Supreme^{Courtheld as under:}

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'8. The^{percentage of permanentdisabilitais expressed bg} the Doctors ruith reference to the^{whole bodg, or moreoften than} not, tuith reference to a partianlar^{limb. Whena disabilitg certificate} states thot tle injured lns^{sulferedperrnatent disabilityto an} ertent of 45% of tlv lef lower^{limb, it is not thesameas 45o/"} pemanent disabilitg tuith reference to^{the whole bodA. The extent} oJ disabilitg of a linb^{(or part of the bodA)expressedin tertnsof a} percentage of the total furrctions of that^{limb, obuiouslg cannolbe} asgtmed to be the ertent^of disabilitg^{of the whole bodg.If there is} 600/o permanenl disabilitg of^{the ighlhand and800/0perrnattent} disability of tefi leg, it^{doesnot mean that the ertentof pennonent} disabilitg ruith reference to^{the whole bodgis 14O%(that is 8oo/"} plus 6o0/o). If dillerent parts oJ the bodg^{haue suflered d{ferent} percertages of disabilities, the^{sumtotal thereof expressedin lenns} of the pennanent disabilitg^{rtilhrefetence to the wholebodlJ,} cannot obviouslg exceed^10094.

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In Raj Kumar v.^{Aiay Kumar3 the Honourable Supreme}

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Court held as under:

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'11. T'he Tribunal^{stutuldnot be asilerspc-ctotor uthen} medical evidence is^{tenderedin regardto the in&ries atld lheir} eJfect, in particular the^{extentof pemanerttrlisability} Sec{i /t.s i68 and 169 oJ the Act^{make it euident that tle Tibutml} does nol Junction^{as a neutral umpire as tn a ctuil suit, btrtas atl actiue} explorer and seeker ol truth^{who is requiredlo 'hold atr etlqutry} inio ttle claim' for determining^{the 'Just compettsatiott. Tlte Tibttttol} should therefore take an^{actiuerole to ascedain lhe tnlcattd} cotect position so tlnt it^{canossess lhe 'iltst competlsottonWhile} dealing uith^personol injury^{cases, the Tibunalshoulcl preferablu} eqtip itself tutth a Medical^{Dictiotlar.l and aHanclbook} for eia[uation of pennanent^{phgsicalintpa(nettt (for exattlPLe the} Manual for Eualuation of^{Petma\eil Physrcalhrrpoinnerl} fot Orthopedic Surgeons,^{preparedbyAmerican Acaden4l of} Onhopedic Surgeons or its^{Indian equirnle-nt or othcr Qutlonze'l} turt! for understanding^{the medicaleuiderrce and assess"lgthe} phgsical and functional disabilitll-^{The Tnlxunl ntoyolso keepirr} ui;LU the first scfledule to the^Worktnctts epllpcttstttott^{AC!, lg23} which giues some indication^{about the ertenlofpennatrcttt} disabiliiy in different^{tgpesof injunes,rn lhe cGseof workmenlf o} Doctor giuing evidence^{uses technical medtcal tenns, tle'fnl)ttttol}

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1 (2Or I) l SCC 343

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,, MANU/SC/ 1s 10/2022

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MGP,J cMA 1270 2011

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shol ld instruct him to state in^qddition, in simple non-medical tems, the nature and. the effect of the injury. IJ a doctor gives euid?nce about the percentage of perma nent disabilitg, the Tibunal has to seek claifrcation as to uhether such percentage oJ disabilitg is tle functional disabilitg with reference to the Luhole body or whether it is onlA with rekrence to a limb. If the percentage of per,tanent disabilitg is stated. uith reference to a limb, the Tibunal will haue to seek the doctor's opinion as to uhether tt is possible to dedirce the corresponding functional pemanent disabilttg with rele'ence to the whole bodg and if so the percentage.

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The Tibunal should also act with caution, if it proposed to accept the expert euidence of dodors uho dtd. not treat the irt1u.'ed but who grue^'readA to use' disabilitg certifi.cates, uithout proper medtcal assessmenf. There are seueral inslances of unsirupulous doctors wfa without treating the injured, readilg giuitg liberal disabilitg cerTificates to help tle claimants. But where the disabilitA cerltficates are given by dulg constituted Medical Boords, theA maV be accepted subject to euidence regarding the gen,ineness of such certificates. The Tribunal may inuaiablg make it o point to require the evidence oJ the Doctor u.,ho treated the inju.ed or ruho cssessed tfle permanent disabilitg. Mere production oJ a disabilitg certificate or Discharge Certificate uill not be prooJ of the "rtent of dtsabilitg stated tLlerein unless the Doctor uho treated the clainant or uho medicallg examtned and assessed lhe extenl of^('isabilitg of claimont, is tend.ered. for cross- examination uith reference to the certilicate. If the Tibunal is rD, satistred with the tneclical euidence produced bA the claimant, it can constitute o Mettical Boerd (from a panel maintained bg it in consultation wittT reptted local Hospitals/ Medical Colleges) and. reJer the claimant to strc'r Medrcal Board for assessment of the disabilitg."

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Thr:refore, this Court is of the considered view that the Commiss ioncr aftcr considering the evidence of AWs. I and 2, oral anc documentary evidence, has rightly assessed the percentaile of disability and loss of eaming capacir. in consonarrce n.ith the evidence of AW. 2 and thereby this Court finds no reason to interfere with the percentage of disabilitv and loss o[ e rrning capacity as assessed by AW. 2 and as fixed by the Comrnissioner in computing the compensation.

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Though other grounds were raised by the learned counscl for the zrppellant - insurance company, it appears that those

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MCP,J cMA_l270 201 I

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grounds are based on question of^fact but^{not on question of} law, more particularly,^{whenthe oppositeparty No.2failed to} establish that there are^{errors apparent on the face of the} record. The Honourable^{Supreme Court inNorthEast}

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Karnataka Road Transport^{CorPoration v. Sujathaaheld as} under:

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"9. At the outset, LUe maV take note of the fact, being a settled principle, that the^{questionas to uhetherthe} emplogee met utith an^{aeident,uhethertheaccident} occured. during the course^{of emplogment,uhetherit arose} out of an employment,^{lww and in uhatmanner the} accident occurred, uLa^{was negligent incausingthe} accident, uhetLler there existed^{angrelationshrpof} emplogee and emploger,^{ruhat utas tlLe age and monthly} salary of the employee, taut^{many are the d.ependentsof} the deceased emplogee,^{the ertent of disability causedto} the employee due to injuies^{sulfered in an accidett'} Luhether there uas any^{insurance couerageobtained ba the} emploger to cover tle^{incidentetc. are 9me of the matenal} issues uthich ari.se for the iust^{decision of the Commissiotter} in a claim petition utlen an^{emplogeesuffersang bodilg} injury or dies duing the^{courseoJ his employment and} he/ his LRs suefs/ fus ernploger^{to clqimcompensation} under the Act.

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1O. The aforementioned^{questions are essentiolly} the questtons of Jact and^{therefore, tleg are requved to be} proued with the aid of euidence. Once theg^{ore proued} either ua4, tfle findings^{recordedtltereonareregarcled os} the findings of fad.

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1 1. The appeal^prouided under^{Section3O oI the Act} to the High Court agait$t tle^{order of *eCommissrortr:rlies} onlg against the sPecific^{ordersset out in clauses (o) to (e) of} Section 30 of the Act utith^a furlher^{ider contairreclin tle} frrst^{prouisoto the sectiotlthat the appealnTust itll)olue} substantial^{qtesliortsof laut.}

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In other uord-s, the appeal^{prouideduruler} Section 3O of *Le Act to^{the High Court agatnst the orclerof} the Commissioner is not^{like a regular} first^{appeal akutlo} Section 96 oJ the Code of^{Civil Procedure, 19o8ruhrch carr} be heard both on facts and^{law. Theappellate} iun.sdrctiorr of the High Court to^{decide tleaPpeal is confircd ottllJ lo} exam[ne the substantial^{questionsof law arisirrgut tle} case.^"

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'^(lol9) ll^{scc 5t4}

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MCP,J cMA_1270_20r1

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In r iew of the principle laid down in the above said authority, it is clear that the above contention of the appellant/ insurance company is not based on a question of raw but it is prrrely a question of fact, which cannot be raised before this Court as per Section 30 of the Workmen,s Compensation Act

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Und,:r these circumstances, this Court is of the considered opinion that the Commissioner, after considering all the aspecl s, has rightly come to the conclusion in awarding compensation ro the applicant. Thus, this court is not inclined to interfer(. with the findings of the Commissioner and thereby the Civil Miscellaneous Appeal is liable to be dismissed.

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Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no orcler as to costs.

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Pend ing Miscellaneous applications, if any, shall stand

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closed

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Sd/. C.V.MALLIKARJI'NAVA MA JOINT REGIS R //TRUE COPY//

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sEcTtoN o ICER

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To,

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The Commissioner for Workmen's Compensation and Assistant Commission,.'r of Labour-ll, RTC X Roads, Hyderabad. (with records, if anv) 2. One CC to [iRl. V SATVBASIVA RAO, Advoiate tOpUC]

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