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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the Insurance Company against the award dated 24.06.2005 made in W.C. No.
144 of 2004 on the file of the Commissioner for Workmen Compensation (Deputy Commissioner of Labour), Dindigul, raising the following
substantial questions of law:
i) Whether the learned Commissioner right in holding that the 1st respondent sustained injuries in the course of employment?
ii) Whether the learned Commissioner right in holding that the 1st respondent was earning Rs. 4000/- per month in the absence of any proof?
iii) Whether the learned Commissioner right in accepting the evidence of doctor, that the professional disability is 100%?
When this matter was taken up on 07.12.2005, this Court admitted the appeal and framed the following substantial question of law:
Whether the learned Commissioner is right in holding that the first respondent was earning Rs. 4000/- per month in the absence of any proof?
Background facts in a nutshell are as follows: The first respondent-Murugesan was injured in an accident that took place on 08.03.2004 at
about 14.15 hours. The said Murugesan was working as driver under the second respondent herein, who is the owner of the bus bearing
Registration No. TN-57-F-4223. The said bus was insured with the appellant-Insurance Company. The said bus met with an accident. Due to the
accident, the first respondent/claimant sustained fractures on his hip and both the legs. He claimed a compensation of Rs. 5,00,000/- before the
Commissioner for Workmen Compensation (Deputy Commissioner of Labour), Dindigul. The appellant/Insurance Company, resisted the claim.
On pleadings, the Deputy Commissioner of Labour framed the following issues:
Whether the accident had occurred in the course of employment?
Whether the claimant is entitled to get any compensation? If so, what is the amount and from whom?
How the disability affects the earning capacity of the claimant?
After considering the oral and documentary evidence, the Deputy Commissioner of Labour held that the accident occurred in the course of
employment and also there was employer-employee relationship and awarded a sum of Rs. 4,35,288/- and the same was directed to be deposited
within a period of 30 days from the date of receipt of the order, failing which 12% interest p.a. would be levied from the date of accident till the
date of deposit. Aggrieved by the award of the Deputy Commissioner of Labour, the Insurance Company has filed the present appeal.
Learned Counsel for the appellant/Insurance Company has submitted that the Deputy Commissioner of Labour is wrong in fixing the monthly
income of the claimant at Rs. 4000/- when there was no evidence on record to show that the claimant was earning a sum of Rs. 4000/- per month.
He further submitted that, as per the G.O. Ms. No. (2)102, Labour and Employment Department, dated 22.9.1999 issued by the Government of
Tamil Nadu, it is stated that during the relevant period, the amount fixed under the said G.O. is only a sum of Rs. 3,229.40. Therefore, according
to the counsel for the appellant, the compensation awarded by the Deputy Commissioner of Labour, by fixing the monthly income of the claimant
as Rs. 4000/- is not in accordance with law and hence the same should be set aside.
Heard the counsel and perused the materials available on record. The claimant himself was examined as P.W.1. P.W.2 is one Ramanathan. He
was the Manager of the Bus Company. P.W.3 is the Doctor. On the side of the claimant, 7 exhibits were marked. Ex.P1 is the First Information
Report. Ex.P2 is the Wound Certificate. Ex.P3 is the Treatment Certificate. Ex.P4 is the Driving Lincense. Ex.P5 is the Insurance Policy. Ex.P6 is
the Disability Certificate. Ex.P7 is the x-ray. On the side of the Insurance Company, no one was examined and no document was marked. On
considering the above oral and documentary evidence, the Deputy Commissioner of Labour had given a categorical finding that the claimant was
working as driver under the second respondent and that the accident occurred in the course of employment. There is no dispute regarding the
same.
The Deputy Commissioner of Labour computed the loss of earning capacity as follows:
60/100 � 4000 � 181.37 � 100/100
= Rs. 4,35,288/-
The age of the claimant was 41 years at the time of accident. Ex.P4 is the Driving License, in which the date of birth of the claimant is stated as
01.01.1963. Therefore, the Deputy Commissioner of Labour fixed the age of the claimant as 41 years at the time of accident. There is no dispute
regarding the same. P.W.3, the Doctor determined the disability of the claimant as 37%. Ex.P6 is the Disability Certificate. Ex.P7 is the x-ray.
Ex.P3 is the Treatment Certificate. Ex.P2 is the Wound Certificate. In the evidence of the Doctor, it is stated that there was a fracture on the left
thigh and there was a deep scar on the right thigh, and due to the fractures, the claimant is unable to sit and stand substantially. Therefore, the
Doctor was of the opinion that 37% of disability affects 100% earning capacity. Therefore, the Deputy Commissioner of Labour is correct in fixing
100% disability in respect of the claimant. There is no dispute regarding the same. The dispute is only with regard to the fixation of monthly income
of the claimant. There is no concrete evidence available on record to show that he was earning Rs. 4,500/- per month. Therefore, the Deputy
Commissioner of Labour fixed the monthly income at Rs. 4,000/- by relying on the Minimum Wages Act. As per G.O. Ms. No. (2)102, Labour
and Employment Department, dated 22.9.1999, relied on by the counsel for the appellant, during the relevant period, the minimum wage that
should be taken is Rs. 3,229.40. Therefore, the Deputy Commissioner of Labour is wrong in fixing the monthly income at Rs. 4,000/- instead of
Rs. 3,299.40 fixed as per the above G.O. Therefore, the earning capacity of the claimant is calculated as under:
60/100 � 3229.40 � 181.37 � 100/100
= Rs. 3,51,429.77
Rounded off to Rs. 3,51,430/-
Therefore, the claimant is entitled to the modified compensation of Rs. 3,51,430/- as against Rs. 4,35,288/- awarded by the Deputy
Commissioner of Labour. The claimant is also permitted to withdraw the modified compensation on making proper application before the Deputy
Commissioner of Labour. The appellant-Insurance Company is also permitted to withdraw the balance amount.
Under the circumstances, the question of law referred to above, is answered in favour of the appellant. The Civil Miscellaneous Appeal is partly
allowed. Consequently, CMP(MD) No. 7756 of 2005 is closed. No costs.