Dismissed

Shriram General Insurance Company Ltd. v. M Ramesh and Another

Telangana HC14 Sept 2023CMA/409/2013

Case brief

AI extract

What is this about?

Civil Miscellaneous Appeal by an Insurance Company against a workers' compensation award of Rs.4,68,376/- granted to a cleaner injured in a fatal accident. The High Court dismissed the appeal, holding that the Commissioner's findings on loss of earning capacity and wages were within his fact-finding jurisdiction and not erroneous on any point of law.

What did the court decide?

The Civil Miscellaneous Appeal is dismissed with no order as to costs.

Shriram General Insurance Company Ltd. Vs… — Pension and Retirement Benefits | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY IHREE

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PRESENT

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THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI

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CIVIL MISCELLANEOUS APPEAL NO: 409 OF 2013

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Appeal Under Section 30 of Workmen's Compensation Act, against the order dated 19-03-2013 made in W.C.No.222 of 2011 on the file of the Commissioner for Employees Compensation and Deputy Commissioner of Labour-1, Hyderabad. Between:

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Shriram General lnsurance Company Ltd, Represented by its Manager, # 4-1370/1 , 1st Floor, Kundas Estate, Beside Jaya lnternational Hotel, Abids, Hyderabad

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AppellanUOpposite Party No.2

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AND

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M- Ramesh, S/o. Narasimhulu, Occ - EX-Cleaner, R/o H.No.7-139/9'l , Venkateshwar Nagar, Malkajgiri, Ranga Reddy District

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...RespondenUApplicant

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M. Narayana, S/o. Rukkaiah, Occ - Business, R/o D.No.2-8812, Komshettypally Village, Maripally Mandal, Ranga Reddy District.

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...RespondenUOpp. Pa rty No.1

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Counsel for the Appellant: SRl. C. BUCHI REDDY, Advocate

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Counsel for the Respondent No.1: SRl. AKKAM ESHWAR, Advocate

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The Court delivered the following: JUOGMENT

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THE HONOURABLE SMT. .IUSTICE M.G.PRIYADARSINI

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CTVIL MISCELLANEOUS APPEAL No. I$O9 OF 2013 JUDGMENT:

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Aggrieved by the ordcr dated t 9.03.2013 in W.C.Case No. 222 of 2O1l passed b1, the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour-I, Hyderabad, the opposite party No. 2/Insurance Company has hled the prcscnt appeal.

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For the sake of c<>nvenit:ncc, hereinafter, the part.ics u,ill be referrcd as per thcir array belore the Commissioner.

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The briel facis o[ the case irrc that the applicanl has filed arr application unrler the pl c.rvisionl; of Workmen's Compcnsation Act, I923 (amcndcd as Employees' comperrsation Act) (for short 'the ActJ clainring cornpensation of Rs.5,OO,O0O/ - for l:hc injurics sustained by hirn i i-r the accident that occurred orr 0 i.O 1.201 i. It is statcd that on the fatefui day, upon instructions of opposite party No. 1, employr:r, thc applicant as cleaner was proceeding lron-r Ilydcrabad to Rudram on the DCM van bearing No. AP 09 X 3336, orvncd by oi-rposite party No. l, employer, insured witlr oppositc parly No.2, insurcr. At aboul 02:30 a.m., rvhcn lhe said van lcached Srinidhi Er-rclave, thc driver of the sairl r'an drov<: tl-ic vchiclc in a rash and r-regligr:nt

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)

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MCP,J c t,rA 409 2013

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manner and lost control over the vehicle, due to which, the said van dashed one lorry. As a result, the appticant sustained Iracture tibia shaft, left leg grade-ll compound comminuted fracture, transverse laceration 3"x2" interior aspect, fibula left M/3rd with laceration with avulsion of skin with injury to Nerve, left foot amputation great toe and 3.d toe IP laceration with avulsion of skin over dorso lateral aspect and other multiple injuries all over the body. Immediately, hc was admitted as inpatient on 01.01.201I in tsBR Hospital, Balanagar and discharged on O8.01.2011. Hc spent Rs.70,O0O/- rowards medical treatment. Based on the complaint, the Police, Patancheru Police Station, registered a casc in Crime No. 2 of 2O11. According to the applicant, hc was hale and healthy and aged about 23 years, earning Rs.4,OOO/- per month as cleaner under the employment of opposite party No. 1. Due to the accident, he suffered permanent disability and lost his earning capacity. Hence, the applicant has llted the application claiming compensation of Rs.5,O0,000/- against the opposite party Nos. 1 and 2, who are jointly and severally liable to pay the compensation.

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Before the Commissioner, the opposite party No. 1 remained ex parte and whereas, the opposite party No. 2,

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MCP,J cMA 409 2013

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appellant herein, hled counter denying the averments of the appiication such as employee-employer relationship, salary, age of the applicant and manner of accident. He further contended that unless and until it is proved that the applicant sustained injuries during the course o[ his employment and the driver of the said van having vaiid and effective driving licence, the Insurance Company is not liable to pay the compensation. He lastly contended that claim is cxcessive and exorbitant and prayed to dismiss the application.

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On behalf of the applicant, AWs. 1 [o 3 were examined and Exs.A. I to A. 14 were marked. Exs-A. 1 and A.2 are the certified copies of FIR and charge sheet, Ex.A-3 is the certified copy of MLC, Ex.A.4 is thc original discharge card of BBR Hospital, Balanagar, trx.A.5 is thc disability oertificate issued by Dr.G.Subash Rao, Ex.A.6 is the l{ospital bilts tor Rs.7a,299 /-, Ex.A.7 is the bunch of medical bitls for Rs. lO,73Bl-, Ex.A.8 is the OP tickets of follow-up prescripLions of BBR hospital, Balanagar, trx.A.9 is the photostat copy of driving licence of the driver of the vehicle, Ex.A. 10 is the photostat copy of RC of the vehicle, Ex.A.1 I is the photostat copy of fi[ness of the vehicle, Ex.A.12 is the photostal copy of pe rmit of the vehicle, Ex.A.13 is the photostat copy of insurance policy and trx.A. 14 is the^X-ray

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MGP,J cMA 409 2013

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Itlms. On behalf of opposite party No. 2, none was examined but Ex.B.1, insurance policy, was marked_

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The Commissioner aJter considering the evidence on record, both oral and documentary, by determining the rvagcs of applicant as Rs.4,209.5O per month, loss of earning capacity as 7Oo/o, by applying the factor '219.95' for the age of applicant being 23 years, medical expenditure at Rs.T 8,229 l- and stamp and advocate fee of Rs. I ,27 8 / - , has zrwarded compensation of Rs,a,68,376l-.

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7 . Aggrieved by the compensation awardcd by the Commissioner, the opposite party No.2/lnsurance Company has filed the prcsent appeal to set aside the impugncd order.

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Heard both sides and perused the record

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lrarned Standing Counsel for thc opposite party No.2/Insurance Company contended that although the applicant has not adduced any oral or material evidence to prove his income, the Commissioner has erroneously taken the income at Rs.4,209.5O. He further contended that the Comrnissioner ought not to have taken the loss of earning capacity at 7 Oo/o when the doctor assessed the disability as 5O%o

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MGP,J CMA 4O9 20 13

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and prayed to dismiss the application against the opposite party No. 2.

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I0. On the other hand, learned counsel for the applicant sought to sustain thc rrrrpugned ordcr of the Commissioner contending that considering all aspects including the age and avocation of the applicant, the Commissioner has awarded reasonable compcnsation arrd the samc needs no interference by this Court.

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I 1. In vicq' of thc rival conLcntions, this Court has perusec{ the entire record and found that the applicant himself was cxamined rrs AW. i and reiterated thc averme nrs of the application in his chief examination. In support ot his claim, he got examined AW.2, RMO rn BBR hospital and AW. 3, Orthopaedic Surgeon. AW_ 2, RMO in BBR hospitai, deposed that the applicant admitted in his hospital on Ol.l i.2Ol 1 a.nd discharged on 08.01.201I. He furtht_,r dcposed that he was one of the doctors tearn, who trcated thc applicant. He also deposed that the applicant paid Rs.78,229/- tou,ards medical bill and Ex.A.4, original disc-harge card o[ RBR hospital, Lialanagar; Ex.A.5, disability certificate issued b1, Dr.C.Subash Rao; Ex.A.6, hospital bills tor Rs.1 a,299 I - ancl Ex.A.7, bunch of nrcclicai bills for Rs.lO,738/ -, u.ere issucd by his hospital. AW. :.], orr.hopedi()

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Ivi G P,J cMA 409 201 3

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surgeon, deposed that he examined the applicant^{clinicallyand} radiologically on 23.1 1.2011 and found that ihe^applicant sustained fracture right 1ibi4, fracture of left^{tibiaand left foot} crush injury for which interlocking nailing^{was doue at BBR} hospitat. He further deposed that hc assesssd^{the disability of} the appticant as 5O7o and loss of earning^{capacityas 1OO7o as} the applicant could not perform any^{work as earlier with thc} same cfficiency and issued disability ccrtificatc^{ur-rder Ex.A.S.} 1'holrgh AV,/s. I to 3 were cross examined a'.^{lcngth nothingwas} clicited to discredit their staternents.

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It is thc contention of the learned^{Standing Counsel lor} the I nsurance Company is that the^{Commissioncre rrcd in} taking the loss of earning capacity as^{7 Oo/u rvhen the disability} u'as only' 50%. The Honourable Supremc Court in Jithendran

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v. The New India Assurance Company Limited^{and anotherr,} hcld as under:

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"13. The ertent of economic^{loss arising} from^o disabilitg moA not be measured in^{proportions to the} extent of permanent disabilitg. This aspect^{tuos noticed} in Roj Kumar Vs. Ajay Kumar and Anr.4, where^Justice R.V. Raueendran made the follouing^{apt obseruations:} " 10. Where the claimant^suffersa permanent disability as a result^{of injuies,} the assessment oJ compensation^undertLre heod of loss orf future eamings tuould

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' {'ivit,r.ppeal No.6.194 of 202 I⁽ \rising out of st-P(C) No.^I i2^I I^{oF 20 I 9)} dccicled on 27.10.202 I

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MG P,J cMA 409 2013

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depend upon ttLe effect and impact of such permanent disability on his earning capacitg. The Tibunal should not mechanicallA applA the percentage of pennanent di.sability as the percentage of economic loss or loss of eaming capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss o/ eanting capocity, aising from a permanent disability taill be different from the percentage of pennanent disabilitg. Some TibunaLs urongly ossume that in all cases, a particular extent (percentage) of pernanent disability tuould result in a corresponding loss of eaming capacitg, and consequentlg, if the euidence produced shous 45o/o as the permanent disabilitg, toill hold thot there is 45o/o Loss of future earning capocity. In most of the cases, equating the extent (percentage) of loss of earning capacitg to tLE extent (percentage) of pennanent disabilitg will result in award of eitter too lou.t or too high o compensation.

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Wltat requires to be assessed bg the Tibunal is the effect of tLrc pennanent disability on the eaming capacitg of the injured; and after assessing the loss of earning capacitg in tenns of a percentage of th-e income, it has to be quantifted in terms of moneA, to anriue at the future loss o/ earnings (bA opplging the standard multiplier method used to deterrnine loss o/ dependency). We may houeuer note that in some cases, on appreciation of euidence and assessment, the Tribunal may find th-at tlle percentage o/ Ioss of earning capacitA as a result of the permanent disability, is opproximately the same as the percentage of permanent disabiLity in uhich case, of course, the Tribunal uill adopt tle said percentage for deterrnination of compensation. "

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[n view of the principle laid down above, it is clear that extent of economic loss arising from a disability may not be measured in proportions to the extent of permanent disability. Moreover, it is observed that AW. 2 i.e., the doctor has assessed the partial permanent disability at 50% and Ioss of earning capacity at 10O%. However, the Commissioner by considering the nature o[ injuries sustained by the applicant and the nature o[ the duties discharged by the applicant, has observed that the applicant developed moderate stiffness of both knee and amputated and great toe, 3.d toe were amputated, as such it was not possible for the applicant to perform the duties as cleaner with same efficiency as earlier. Thus, the Commissioner, has rightly hxed the percentage of Ioss of earning capaciry of the applicant at 7Oo/o. Therefore, this Court is not inclined to interfere with the f-rndings of the Commissioner, so far as percentage of loss of earning capacity of the applicant.

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With regard to hxing the wages of the applicant, the applicant claimed to have received Rs.4,OOO/- per month as wages. However, the applicant has not adduced any oral or documentary evidence to prove his income. Hence, considering the minimum wages prevailing at the relevant point of time in pursuance of the G.O.Ms.No.83, LET & F (Lab-ll) dateci

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MGP,J CMA 4O9 20 13

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22.1I.2006, the Commjssioner has rightly fixed the monthly wages of the applicant at Rs.4,209.50, which needs no interference by this Court.

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Though several grounds were raised by the learned Standing Counsel for the appellant _ insurance company, it appears that most of such grounds are based on question of fact but not on question of law, more particularly, when the opposite party No.2 failed to establish that there are errors apparent on the face of the record. The Honourable Suprene Court in North East Karnataka Road Transport Corporation v. Sujatha2 held as under:

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"9. At the outset, we mag toke note of the Jact, be.ing. a settted pinciple, thit the question is t-o tuhether the emplogee met ulith an aciide,t, -n"tnu the accident occurred during the course if emplogment, uhether it arose oit o1 ,n emptogrnei, hotu and in u.that manner the cLccidLnt ""ru'n.i, ii utas negligent in causing the accid.ent, uthether there ex,isted ang relationship of emptoyee ora .^pto-q"r, tDhal u)as the age and monthtg salary^{'of "the} e:ploAee, hotu mang are the aip"na.nis iy tne deceased emplogee, the extent of d"isobilitg .ori"a io th7 gytoloyee due to injuries suifered in in occiaini, uhether the-re LUas ang insurance couerage obtained by the employer to couer the incident "t". Lr" some of the material jssues zuhich arise for the iust decision if the Commissioner in a claim petiiion uthen ;; employee-suffers a.ng bodilg injury or dies during the course of his emplogment and he/ his lR.s sue6j fus emploger to claim compensation under the Act10. The aforementioned questions are essentiallg t.he questions of fact and therefore, theA are required to be proued wittt the aid of euidend.

-(10t9) IISCCst4

MGP,.' cMA_409^20I3

Once they^{are prouedeitheru-tag'the ftndings} l.iaii-in"r."n^{ire regorded' as the rtndings of fact'} - -l 1. The appeat prouid-ed uncier Section 30 of the Act to^{the High Ciurtogainst the.order-of the.} Ci^ii."ion^{, lies onlg against the speciftcorders set} iiri"i1-"i'."^{(a) rc} [)^{oi section so 9f ltLe A9t luit.a} ' nLter rider conlained- in lhe first prouiso to tLre. section that^{Lhe appeal must inuolue substanttal} questions of loLU.

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t 2.'ln other^{uords,the appeal prouided und3r} Section 3O^{oI the Act to the High Court agafist tne.} ord.er of the^{Commissioneris not like a regular[rst.} ;;;"i -ii."a"r", akin 1908 to uthich Section can be^{96 of} heard-^{the Code} both on^tJ facts?u.il ona U*.^{The appellote jurisdiction of the High. Court} to decide he^{ap'peatis confined. onlgto examine the} subslantial^{qucslions ol lau anstng tn tne cose'}

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f6. ln view of^{the principlelaid down inthe abovesaid} IS clear that the^{above contentionofthe} authoritY, lt appellant -^{insurance companyis not basedon a question o[} law but it is^{purcly a questionof fact, which cannot be raised} beforc thrs Court^{as perSection 30 of theWorkmen's} Compensation^Act

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Under these^{circumstances,this Court is ofthe} considered opinion^{that the Commissioner after considering all} thc above said^{aspects has rightlyawarded the cornpensationin} lavour of the^{applicant and thus, the Commissionerhas not} committed any^{irregularity orillegalitywhile passing the} impugned order.^{Hence, this Court does not see anyreasonto} interfere^wi th the^{impugned order passedby the Commissioncr'}

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Thus, thc Civil Miscellancous Appeal is devoid ot. me rits and

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liable to be dismissed

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