Md.Azeemoddin vs Bashetty Saroja Anr

This appeal is filed by the appellant-claimant-Md.Azeemoddin, against the orders of the Commissioner for Workmen’s Compensation and

Assistant Commissioner of Labour, Nizamabad, in W.C.No.61 of 2003 dated 26.05.2004.

The appellant-claimant filed this appeal with the following substantial questions of law:

1) whether commissioner can reduce the wages;

2) whether commissioner can grant an interest at a rate other than 12% per annum as laid down by the Supreme Court from the date of accident till

the date of realisation;

3) whether commissioner can reduce disability/ loss of earning capacity.

The appellant-claimant prayed this Court to award compensation of Rs.4,11,030/- with interest at the rate of 12% per annum from the date of

accident till the date of realisation.

Learned counsel for the second respondent-Oriental Insurance Company Limited would mainly contend that Dr.L.Ramuloo who was examined as

P.W.2 was a stock witness and in 2015(4)ALD164 this Court directed the Medical Council of India to conduct enquiry against the said doctor and

also to inflict appropriate penalty for professional misconduct by duly giving an opportunity to him.

Perusal of the order shows that the said doctor assessed the disability at 60% and the Assistant Commissioner after considering the arguments of

the insurance counsel, took the loss of earning capacity at the rate of 40% for calculating compensation. He took his income as Rs.1,800/- per month,

but the learned counsel for the claimant contended that as per the evidence of the owner of the vehicle, she paid salary of Rs.5,700/- to the driver,

Rs.4,700/- to cleaner and Rs.4,400/- to labour, apart from bata. As per the provision of Section 4 of the Workmen’s Compensation Act (as per the

amendment which came into force on 08.12.2000), the claimant is entitled to a salary at the rate of Rs.4,000/- per month wherein the salary exceeds

Rs.4,000/-. But the Assistant Commissioner wrongly considered the salary to be Rs.1,800/- without any basis.

The said accident occurred on 18.12.2002 and the amendment was brought into force in the year 2000, and as such, this Court concur with the

argument of the learned counsel for the claimant regarding salary and it is to be taken as Rs.4,000/- per month instead of Rs.1,800/- per month.

As regards the disability, the learned counsel for the claimant relied upon a case law in CHARAN SINGH V/s. G.VITTAL REDDY 2003 SCC

OnLine AP 263, in which it was held that the doctor who treated the workman may not be available for various reasons and the workman cannot be

expected to stay at a particular station forever. It was held in the said case as follows:

“If section 4 is read with reference to Schedule-I, the inevitable conclusion is that in case of non-scheduled injuries, the percentage of total

disablement as is proportionate to the loss of earning capacity has to be assessed by the qualified medical practitioner and it is not necessary that the

Doctor who treated the workman should be the only assessing authority.â€​

P.W.2, in his evidence stated that he found mal-united fracture medial mallioes left and right ankle and painful and restricted movements of the left

and right ankle. On clinical and physical examination he issued disability certificate Ex.A.7 and also assessed the disability at 60% permanent partial

disability and loss of earning capacity at 60%. He further stated that P.W.1 cannot stand for a long time and he cannot do hard work and lift heavy

weights.

In DIVISIONAL MANAGERR, NEW INDIA ASSURANCE COMPANY LIMITED V/s. GADDAMIDI PAPAIAH 2015 (4) ALD 164

, it was also observed that L.Ramuloo preferred SLP and the Hon’ble Apex Court expunged the observations relating to the Doctor as he was not

heard before condemning him. Though the learned counsel of the Insurance Company argued that his evidence cannot be relied upon, he has not filed

any document to show that Dr.Ramuloo was guilty of professional misconduct.

Previously, all the doctors who treated the claimant were not appearing before the Courts for deposing evidence, as they were detained in the

Courts for longer hours due to the work schedules of Advocates and the Courts. As such, only some of the doctors are coming forward to give

evidence and thus the claimants have no other option but to approach the said doctors to establish their case in the Tribunals. Merely because the

doctor deposed in several cases, his evidence cannot be brushed aside. Considering the nature of the injuries and on physical and clinical examination,

he assessed the disability at 60%. The Commissioner simply observed that the disability will be reduced in future course of time, and with the said

observation reduced the loss of earning capacity to 40%. The said reasoning of the Assistant Commissioner is without any basis and cannot be

accepted.

Admittedly, the appellant-claimant is a labourer engaged in physical work and he sustained injuries in the accident and it was held by the doctor

that he cannot stand for a long time, cannot do hard work and lift heavy weights. The disability assessed by him at 60% is reasonable and rational.

Hence, this Court finds it reasonable to take the loss of earning capacity as 60% instead of 40%.

Therefore, the appellant-claimant is entitled to the following amounts of compensation:

a. Monthly wages of the applicant: Rs.4,000/-

b. Age of the applicant: 31 years

c. Loss of earning capacity: 60%

d. Relevant age factor: 205.95

e. Compensation: 60% of the wage x relevant factor x percentage of loss of earning capacity = 4000 x 60/100 x 205.95 x 60/100 = Rs.2,96,568/-

The judgement of the Supreme Court in SABERABIBI YAKUBBHAI SHAIK V/s. NATIONAL INSURANCE COMPANY LIMITED (2014)

2 SCC 298 lays down the payment of interest from the date of accident instead of the date of application. As per the said judgement, the appellant-

claimant is entitled to interest at 12% from the date of the accident to the date of realisation.

Therefore, the Insurance Company is directed to deposit the amount of Rs.2,96,568/- after deducting the amount already deposited, with interest at

the rate of 12% per annum from the date of accident till the date of realisation and they are directed to deposit the same within one month from the

date of the order. On such deposit, the appellant-claimant is entitled to withdraw the entire amount along with the interest.

Accordingly, this appeal is allowed. There shall be no order as to costs.

Miscellaneous Petitions, if any, pending in this appeal shall stand closed in the light of this final order.