CMA/547/2011 of THE NEW INDIA ASSURANCE COMPANY, NIZAMABAD Vs RONTE RAJARAM, NIZAMABAD AND ANO on 29 December 2023

1. Ronte Raiaram, S/o Duthuram, Hindu, aged 48 years, Occ: Labourer, onTipper Bearing No- AP-25-4771 , RJo Patola Thanda Village, Dharmabad,Taluq, Nanded District.Tipper Bearing No- AP-25-4771 , RJo Patola Thanda Village, Dharmabad,Taluq, Nanded District.

2. Shaik Mahboob, S/o Shaik Ahmed, aged: Major, Occ: Owner of TipperBearing No. AP-25-4771. Rr/o H.No. 6-20-51, Dubba, Nizamabad.Bearing No. AP-25-4771. Rr/o H.No. 6-20-51, Dubba, Nizamabad.

...RESPONOENT/1.I OPPOSITE PARTY

CMAMP. NO: 985 OF 2011

Petition under Section 151 CPC praying that in the circumstances stated inthe affidavit filed in support of the petition, the High Court may be pleased to grantthe affidavit filed in support of the petition, the High Court may be pleased to grantstay of operation of the decree and order in WC No. 313 of 2003 on the file of theCourt of the Commissioner for Workmen's Compensation and DeputyCourt of the Commissioner for Workmen's Compensation and DeputyCommissioner of Labour, at Nizamabad, dated 26th February, 201 1, pendingdisposal of the main CtvlA.disposal of the main CtvlA.

Counsel for the Appellant: SRl. A RAMAKRISHNA REDDY

--Counsel for the Respondents:

The Court made th€ following: JUDGMENT

-/

THE HONOURABLE SMT. JUSTICE M.G.PRryADARSINI

CML MISCELLANBOUS APPEAL No.547 of 2011

Jt]DGMENT:

1 . The present Civil Miscellaneous Appeal has been directedagainst erder dated 26.O2.2011 in W.C.No.313 of 2OO3 NF on thefile of the Commissioner for Workmen's Compensation and DeputyCommissioner of Labour at Nizamabad (hereinafter referred to as'the CommissionerJ. The said case was frled by respondent No. Iherein seeking compensation for injuries sustained by him in anaccident that occurred on 02.06.2002 ald the same was partlyallowed by the Commissioner granting compensation ofRs. 1,11,389/-. Aggrieved by the sarne, the present CivilMiscellaneous Appeal is filed at the instance of opposite partyNo.2 before the Commissioner i.e., the insurance compan)'

2. The appellart herein is opposite party No.2, respondent No.1herein is applicant and respondent No.2 herein is opposite partyNo.1 before the Commissioner. For the sake of convenience, theparties are hereinafter referred to as they were arrayed before theCommissioner.

3. The brief facts of the case of the applicant are that he wasemployed under opposite party No.1 as labourer on til)per bearing

No.AP 25 T 477t. On 02.06.2002, [the applicant ][was discharging]his duties as labourer [on ][the ][said ][tipper ][under the ][instructions ][of ][']opposite party No.l and the said [tipper was ][proceeding ][from]Nizamabad to Bodhan. On the said [date, ][at ][about ][04:OO AM,]when the said tipper reached [Nehrunagar ][village sivar, ][the ][driver]of the said tipper drove it in [rash ][and ][negligent ][manner ][lost]control over the tipper and dashed to [one ][tourist ][bus ][bearing]No.KAO 29 3375, which was coming [from ][Akola ][side. ][The]applicant sustained fracture injuries [in ][the ][said ][accident ][along]with other labourers. He [was immediately ][shifted to ][Government]Hospital, Nizamabad, and after that [he ][underwent treatment ][in]private hospital also. Due to the injuries sustained, [the applicant]became permanently disabled and [he ][was also ][removed ][from]employment. With regard to the [accident, ][the ][Nizamabad ][Rural]Police registered a case in Crime [No. ][I ][13 ][of ][2OO2 ][under ]337 of the Indian Penal Code, 1860. [The ][applicant ][was ][4O ][years]old at the time of accident and he [u'as being ][paid ][an ][amount of]Rs.4,OOO/- per month towards salary. [He ][filed the ][present ][claim]application seeking compensation of [Rs.2,OO,OO0/- ][as ][the ][tipper]bearing No. AP 25 T 4771was owned by opposite [party ][No.1 and]insured with opposite party No.2.

./

4. Opposite party No. 1 remained ex parte. Opposite [party ][No.2]frled its written statement denying the averments of [the ][claim]application such as age, wages, employee and [employer]relationship and contended that as no [premium ][is ][filed ][to ][cover]risk o[ labourer. It is also contended that the applicant [was]unauthorized passenger on the tipper bearing [No.AP ]25 T [477 ][1,]which was involved in the accident and that the [compensation]claimed is excess and exorbitant. Hence, prayed to dismiss [the]claim application

5. In support of his case the applicant got examined [A.Ws.l]arrd 2 got marked Exs.A- 1 to A-5. Opposite party No.2 gotexamined R.W.1 ;rnd got marked Ex.B-1, in [support ][of ][its ][case]

6 . On the basis of the above pleadings and evidence, [the]Commissioner framed the following issues for consideration:

" I - Whether the applicant met with the accident on 02.06.2002at about 4 a.m, during the course and out o[ his cmploymentas labourer on the tipper bearing No.AP 25 T 4771and in theemplol'ment of opposite party No.1, he sustained injuries in theaccident?

2. lf yes, n,hat is the percentage of physical disabiliry andconsequent loss of earning capacity suffered by the applicant?

3. lWho are hable to pay compensation to the applicant-2 and

4. What is [the]applicant?'

amount of [compensation ][entitled ][by ][the]

After considering considering [[the ][evidence ]][[evidence ]][[and ][documents hled ][by ][both]][[documents hled ][by ][both]][[by ][both]][[both]]

7. After considering considering [[the ][evidence ]][[evidence ]][[and ][documents hled ][by ][both]][[documents hled ][by ][both]][[by ][both]][[both]]sides, the [Commissioner awarded ][an ][arnount ][of ][Rs ][1'11'389 ][l-]towards compensation [to ][the ][applicant' ][Aggrieved ][by ][the ][same']the present [appeal ][is filed ][by opposite ][party ][No'2']

8. Heard,thelearnedstandingcounselforoppositepartyNo.2 /insurance [company.]

The main main [[contention ]][[of the ]][[learned ][counsel ]][[counsel ]][[for ]][[the]]

g . The main main [[contention ]][[of the ]][[learned ][counsel ]][[counsel ]][[for ]][[the]]appellant/opposite [party ][No'2 ][i ][e', ][the insurance ][company ][is ][that]no premium [was ][paid ][by ][opposite ][party ][No' ][1 ][to ][cover ][the ][risk ][of]labourer, [as ][per the terms and conditions ][of ][the ][insurance ][policy']Therefore, [opposite ][party ][No'2 ][is not ][liable ][to ][pay ][compensation']It is further [contended ][that ][A'W'2-doctor' ][who ][issued disability]is [not the ][doctor, ][who ][treated ][the ][applicant. ][Hence,]certificate, prayed to allow the [appeal ][by ][setting ][aside ][the ][impugned order']appellant/opposite [party ][No'2 ][i ][e', ][the insurance ][company ][is ][that]no premium [was ][paid ][by ][opposite ][party ][No' ][1 ][to ][cover ][the ][risk ][of]labourer, [as ][per the terms and conditions ][of ][the ][insurance ][policy']Therefore, [opposite ][party ][No'2 ][is not ][liable ][to ][pay ][compensation']It is further [contended ][that ][A'W'2-doctor' ][who ][issued disability]is [not the ][doctor, ][who ][treated ][the ][applicant. ][Hence,]certificate, prayed to allow the [appeal ][by ][setting ][aside ][the ][impugned order']

10. Now, the [point ][for determination is ][as ][follo"r's:]

"Whether the applicant [is ][entitled for ][compensation ][as]granted bY the Commissioner?"

I

MCP,JcMA 547 201 I

Point:-

1 I . This Court has perused the entire evidence and documentsplaced on record by both the parties. The applicant was examinedas A.W. I and he reiterated the contents of the clajm applicationand deposed about the manner of the manner of the [accident ][and]also injuries sustained by him in the accident. Further, he [got]examined A.W.2, who is doctor, to prove the injuries sustained byhim. A.W.2 deposed that the applicant sustained fracture of rightcalcaneum and fracture of both bones forearm and also injuries onthe other parts of the body. He further stated that he has verifiedthe previous medica-l record of the applicant and subjected him toexercises before issuance of the disability certificate. He assessedthe disabilitv itt 60%o as permarlent and partial. He alsodetermined the Ioss of earning capacity at 650/o.

12. Though, A.W. I was cross-examined, nothing contrary waselicited in the same. In the cross-examination, A.W.2 denied thathe is not competent to issue disability certificate and he assessedthe disability at 6ook without any basis, without meclical authorityand his assessment is unscientific and that he has not followed theprovisions of the Workmen Compensation Act, 1923

MCP.J

cMA 547 201I

He also denied that the injuries mentioned in the disability certihcate are not corresponding to the injuries mentioned in theinjury certil-rcate and that A.W. 1 is not suffering from anyfunctional disability and A.W. 1 is able to discharge his dutieswithout any difficulty.

I3. Leamed counsel for the appellant/ opposite party No.2

contended that A.W.2-doctor, who issued disability certificate, isnot the doctor, who treated the applicant. In this regard, it is aptto refer to the decision of the Apex Court in the case ofto refer to the decision of the Apex Court in the case ofT.J.Parameshwarappa v. The Branch Manager, New IndiaAssurance Company Limitedt, wherein it was held as follows

"The doctor uho treated an injured claimant or u.tho examined him subsequentlg to assess the extent of hispermanent disabilitg can giue euidence only in regard tothe extent of permanent disabilitg."the extent of permanent disabilitg."

14. In view of the principle laid down in the above said decision, it is not necessary that the doctor, who has treated the injured,has to give evidence with regard to disability of the injured,however, the doctor, who has examined the applicant subsequentto the accident can also depose about the disability of the injured ' [Civil ][Appeal ]Nos.8598-8599 of 2022 (arising out of Special trave [petition ](ClNori.l 1730- I l73l of 2O2t decided on B.tt.2O22Nori.l 1730- I l73l of 2O2t decided on B.tt.2O22

-

t

In the present case, A.W.2 can be considered as competent medicalofficer to assess the disability, as he is none other than former CivilAssistant Surgeon at Government Headquarters Hospital,Nizamabad. In the said circumstances, by considering theevidence of A.Ws.l and 2 coupled with the documentary evidencein the form of Exs.A- I to A-5, the disability certilicate under Ex.A-4can certainly be taken into consideration. Hence, the contention ofthe learned counsel for the appellant/ opposite party No.2 isunsustainab le.

15. The other contention of the learned counsel for the appellant/ opposite party No.2 i.e., the insurance company is thatno premium was paid by opposite party No.l to cover the risk oflabourer, as per the terms and conditions of the insurance policy.Therefore, opposite party No.2 is not liable to pay compensation.This Court is ol the considered opinion that the Commissionerafter considering the entire evidence and Iaw laid down by the ApexCourt has rightl_v held that the applicant is entitled forcompensation and opposite party No.2 is liable to indemnifyoppopite party No.1 for payment of compensation to the applicant.I

i\,IGP,JcMA 547 201 [I]

16. Even otherwise, tJle contention of the opposite party No.2before this Court is certainly based on question of fact. TheHon'ble Supreme Court, in the case of Golla Rajanna v. TheDivisional Manager2 held that as per the scheme of theWorkmen's Compensation Act, 1923, the Commissioner is the lastauthoriry on facts. In view of the principle laid down in the abovesaid case, since the contentions raised by the learned counsel forthe appellant/ opposite party No. 2 are based on questions of fact,itIS evident that scope of appeal under Section 3O of theWorkmen's Compensation Act, 1923, is very limited, thereby theambit of interfering with the order passed by the Commissioner isalso limited until and unless the order passed by theCommissioner is perverse or when there is patent irregularity orillegality committed by the Commissioner while passing theimpugned order. Moreover, when two interpretations are possible,the interpretation, which is favourable to the applicant, shall betaken into consideration, since the Workmen's Compensation Act,1923, is a beneficial legislation enacted to protect the interest ofworkmen f 1,7. In view [of ][the ][above ][discussion' ][this ][Court ][is ][of ][the]considered [opinion ][that ][the ][Commissioner ][after considering ][all ][the]aspects [has granted ][compensation, ][as ][per the ][formula' which is ][as']under:

Rs.2O03 [X ][601 100 ][X 50/ ][1OO ][X ][184' 17 ][= ][Rs' ][i ][10668/-']

ls.TheCommissionerhasalsograntedstampfeeofRs.22l/-and advocate [fee ][of ][Rs.5O0/ ][-' ][In ][all, the ][Commissioner ][granted]compensation [of Rs. ][1,11,389/- ][to the ][applicant' which ][is ][just ][and]reasonable [and ][interference ][of this ][Court ][is ][unwarranted' ][The]is [devoid of ][merits ][and ][the ][same ][is ][liable ][to ][be ][dismissed']appeal lg.Intheresult,theCiviiMisceltaneousAppealisdismissedconfirming [the order ][dated' ][26'O2'20 11 ][in ][W'C'No'313 ][of ][2003 ][NF]on the file of [the Commissioner ][lor ][Workmen,s Compensation and]Deputy Commissioner [of ][Labour ][at ][Nizamabad' ][There ][shall ][be ][no]order as [to ]costs [Miscellaneous appeal, ][if any' ][sha-ll ][stand ][closed']

sD/r [K.SR]tNtvAgrlRaoSotwGI/TTRUE [COPY//]SECTIOOFFICER

To

1The ;iI;;r;. commissroner [,ir.i, ][zamabad ][for ][worksmen's compensation ][(with ][Records if ][anv)][and deputy ][commissioner]2.8r["cili" [i-ni ][n ][nnvn(ntsuNA ][REDDY' ][Advocate ][[oPUCl]J.Two CD [CoPiers]As/prs2.8r["cili" [i-ni ][n ][nnvn(ntsuNA ][REDDY' ][Advocate ][[oPUCl]J.Two CD [CoPiers]As/prs II

HIGH COURTMGPJ

DATED:2911212023

JUDGMENTCMA.No.S47 [of ][2011]

DISMISSEDd,crurov

1uE [SI{r]e(o[s]+o0 I APB zrt'rIiDpSF'AIC