National Insurance Co. Ltd. vs Banda Ashok and Another

Ghulam Mohammed, J.—This appeal by insurance company is directed against the judgment dated 24.3.2005 passed by the Commissioner for Workmen''s Compensation and Assistant Commissioner of Labour-III, Hyderabad, in W.C. No. 143 of 2004, whereby the application of the respondent No. 1 herein was allowed by awarding a compensation of Rs. 4,80,974. Brief facts of the case are that on 14.5.2004, when the respondent No. 1, who was employed as driver by the respondent No. 2 herein, was proceeding on the lorry bearing No. AP 5-T 7992 from Turkapally to Jagtial carrying a poultry load and on reaching near Renigunta Village limit, he lost control over the lorry, due to which the lorry turned turtle and the respondent No. 1 sustained grievous injuries and fractures. He was shifted to Karimnagar Hospital and later was shifted to Osmania General Hospital, Hyderabad, for further treatment. Therefore, respondent No. 1 filed the application before the Commissioner claiming a compensation of Rs. 5,00,000 for the injuries received by him.

To prove his claim, the applicant examined AWs 1 and 2 and marked Exhs. A1 to A7, i.e., F.I.R., original discharge card, disability certificate, original driving licence, R.C. of the vehicle, insurance policy and X-ray films with report. The insurance company examined no witness, however, marked insurance policy, Exh. D1.

The Commissioner, after considering the facts and circumstances of the case and the evidence on record, observed that the accident had occurred during the course of employment and, therefore, the respondent No. 1 is entitled to compensation. The Commissioner further observed that since the respondent No. 1 suffered physical disability at 40 per cent as per the evidence of Orthopedic Surgeon Specialist, AW 2, loss of earning capacity of the respondent No. 1 is 100 per cent and the age of the respondent No. 1 was arrived at 28 years basing on the driving licence. Against the claim of the respondent No. 1 regarding his salary at Rs. 4,000 per month, the Commissioner, taking into account G.O.Ms. No. 30 dated 27.7.2000, whereby minimum wages were fixed by the Government of Andhra Pradesh, took the salary at Rs. 3,773.50 per month. Since the respondent No. 1 was aged 28 years at the time of accident, as per Schedule IV of the Workmen''s Compensation Act, 1923, the Commissioner has taken the relevant factor 211.79 for the purpose of calculating the compensation. Accordingly, the Commissioner arrived at Rs. 4,79,514 towards compensation. The Commissioner granted further sums of Rs. 960 towards stamp fee and Rs. 500 for advocate fee. In total, the Commissioner awarded a compensation of Rs. 4,80,974, which shall be paid within thirty days from the date of the judgment, failing which the compensation shall be paid along with interest at 9 per cent per annum from the date of the application till realization.

The learned counsel for the appellant insurance company has submitted that the Commissioner erred in arriving at the loss of earning capacity at 100 per cent since as per the doctor, the respondent No. 1 suffered only 40 per cent physical disability. In support of his submission he relied upon the decision of the Supreme Court in Oriental Insurance Co. Ltd. v. Mohd. Nasir, 2009 ACJ 2742 (SC).

It is relevant to extract section 2 (1) of the Workmen''s Compensation Act, 1923 (for short ''the Act''), which reads as under:

(1) ''total disablement'' means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement:

Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more,

It is also relevant to extract section 4 (1) (c) of the Act, which reads as under:

Amount of compensation.--(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--

xxx xxx xxx

(c) Where permanent partial disablement results from the injury

(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and

(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;

Explanation I.--Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.

Explanation II.--In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.

According to the evidence of the doctor, AW 2, he found the following injuries on the respondent No. 1: (i) fracture of right femur with a butterfly fragment-post-operative fracture not yet united; (ii) stiffness of right knee and hip with painful restriction of movements - 50 per cent of hip and 20 per cent of the knee and he assessed the physical disability of the respondent No. 1 at 40 per cent, which is permanent and partial. Basing on the doctor''s evidence who stated that it will be difficult for the respondent No. 1 to walk and squat and that there was no possibility of the respondent No. 1 driving the vehicle in future, the Commissioner concluded that since the respondent No. 1 has been totally incapacitated to work as a driver, as per the provisions of the Act, the loss of earning capacity shall be 100 per cent.

A perusal of the judgment of the Commissioner shows that the Commissioner considered all the aspects in a detailed and proper manner. Therefore, I do not see any infirmity in the judgment of the Commissioner while awarding compensation as referred to above. However, as rightly pointed out by the learned counsel for the appellant insurance company, in view of the catena of decisions of the Apex Court and this court, the compensation shall carry interest at 7.5 per cent per annum from the date of application before the Commissioner till the date of judgment of the Commissioner and thereafter at 12 per cent per annum till realization. In all other respects, the judgment of the Commissioner shall remain intact. Accordingly, the C.M.A. is partly allowed reducing the rate of interest to 7.5 per cent per annum from the date of the application before the Commissioner till the date of the judgment of the Commissioner and thereafter at 12 per cent per annum till realization.