CMA/546/2011 of THE NATIONAL INSURANCE COMPANY, NIZAMABAD Vs GOGLOTH MOJIRAM AND ANOTHER on 29 December 2023

HIGH COURT FOR [THE ]STATE [OF ][TELANGANA]AT HYDERABADFRIDAY,THE TWENTY NINTH [DAY OF DECEMBER]TWO THOUSAND AND [TWENTY THREE]

PRESENT

THE HONOURABLE SMT. JUSTICE [M.G.PRIYADARSINI]

CIVIL MISCE LLANEOUS APPEAL NO: [546 OF ][2011]

Appeal filed under Section [30 of ][Workmen's Compensation ][Act ][against ][the ][Order]daled 26.O2.2011 [passed ][in ]W.C.No. [311 ][of ][2003 ][on ][the ][file ][of ][lhe ][Commissioner ][for]Workmen's Compensation [and Deputy Commissioner of Labour ][at ][Nizamabad.]

Between:

The National lnsurance company, [Rep. ][by its ][Divisional ][Manager ][Divisional ][office,]Opp. ZP Office, Subashnagar, [Nizamabad District.]

...AppellanU2nd OPPosite Party

AND

l.cogloth Mojiram, Wo. Sambaji [Labourer ][on ][Tipper ][No. ][AP-25T-4771 ][Ryo- ][Pouna]Village, Himayathnagar Taluq, Nanded [District.]

(Rl dismissed vide court order dated 19.07.2016)

2. Shaik Mahboob (Majo|, S/o. Shaik Ahmed [Owner ]of [Tipper No. AP-25T-4771 ][No.]H.no. 6-20-51, Dubba, Nizamabad District.

...RespondenUl't Opposite party

l.A. NO: I OF 2011(C MAMP. NO:984 OF 2011)

Petition under Section 151 of CPC praying that in the circuflstances statedin the affidavit filed in support of the petition, the High Court may be pleased togrant stay of operation of the decree and order in WC.No- 31112OO3 on the file ofthe court of the Commissioner for Workmen's Compensation and DeputyCommissoiner of Labour, at Nizamabad, dated 26.02.2011, pending disposal ofthe main CMA

Counsel for the Appellant : Sri A" Ramakrishna Reddy Counsel for Respondent No.2 : None appeared The Court delivered the following: JUDGMENT

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THE HONOURABLE SMT. JUSTICE M.G.PRTYADARSINICwIL MISCELLANEOUS APPEAL No.546 of 2OL1

JUI}GMENT:

1 . The present Civil Miscellaneous Appeat has been directedagainst order dated 26.02.2011 in W.C.No.311 of 2003 NF on thefrle of the Commissioner for Workmen's Compensation and DeputyCommissioner of Labour at Nizamabad (hereinafter referred to as'the CommissionerJ. The said case was fiied by respondent No.1herein seeking compensation for injuries sustained by her in anaccident that occurred on 02.06.2002 and the same was partlya-llowed by the Commissioner granting compensation ofRs.58,343/-. Aggrieved by the sarne, the present CivilMiscellaneous Appea1 is frled at the instance of opposite partyNo.2 before the Commissioner i.e., the insurance company.2. The appellant herein is opposite parLy No.2, respondent No.1herein is applicant and respondent No.2 herein is opposite part5rNo.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 she wasemployed under opposite party No.l as labourer on tipper bearing MGP,JcMA 546 20ll

No.AP 25 T 477I. On [O2.06.2002, ][the ][applicant was ][discharging]her 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 ][saiti date, ][at ][about ][O4: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 28 3375, which [was ][coming ][from Akola ][side. ][The]applicant sustained fracture injuries [in ][the ][said ][accident ][along]with other labourers. She [was ][immediately shifted ][to ][Government]Hospital, Nizamabad, and after [that ][she ][underwent treatment in]private hospital also. Due to the injuries [sustained, the applicant]became permanenfly disabled [and ][she ][was also ][removed ][from]employment. With regard to the [accident, ][the ][Nizamabad ][Rural]Police registered a case in Crime [No.113 ][of ][2OO2 ][under ]337 of the Indian Penal [Code, ][1860. ][The applicant was 37 ][years]old at the time of accident [and ][she was ][being ][paid ][an ][amount ][of]Rs.4,OOO/- per month towards salary. [She ][filed the present ][claim]application seeking compensation of [Rs.2,0O,OOOI- ][as ][the ][tipper]bearing No. AP 25T 477L was [owned ][by ][opposite ][party ][No.l ][and]insured with opposite PartY [No.2.]

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MGP,JcMA 546 201I

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 fiied ][to ][cover]risk of labourer. It is [also ][contended ][that the ][applicant ][was]unauthorized [passenger ][on ][the ][tipper ][bearing ][No.AP ][25 ][T ][4771,]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 her [case ][the ][applicant ][got ][examined ][A.Ws'l]and 2 got marked Exs.A-l [to ][A-5. ][Opposite ][party ][No'2 ][got]examined R.W. 1 and [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:]

"1. Whether the [applicant ][met ][with ][the ][accident ][on 02.06.2002]at about 4 a.m, during [the ][course ][and ][out ][of ][her ][employment]as labourer [on the ][Lipper ][bearing ][No.AP ][25 T ][4771and in ][the]employment [of ][opposite ][party ][No. ][1, she sustained ][injuries in]the accident?at about 4 a.m, during [the ][course ][and ][out ][of ][her ][employment]as labourer [on the ][Lipper ][bearing ][No.AP ][25 T ][4771and in ][the]employment [of ][opposite ][party ][No. ][1, she sustained ][injuries in]the accident?

2. lf yes, what is the [percentage ][of ][physical ][disability ][and]consequent [loss ]of earning capacity [suffered by the ][applicant?]

3. Who are [liable ]to [pay ]compensation [to the ][applicant? ][and]

4. What is the amount [of ][compensation ][entitled ][by ][tt'e]applicant?"

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

7 . After considering considering the [[evidence ]][[and ][documents ]][[documents ]][[filed ][by ][both]][[by ][both]][[both]]sides, the Commissioner [awarded ][an ][amount ][of ][Rs'58,343/-]towards compensation [to ][the ][applicant. ][Aggrieved ][by ][the ][same,]the present appeal [is ][hled ][by opposite ][party ][No'2']

8. Heard, the learned [standing counsel ][for ][opposite ][party]No.2 /insurance [comPany.]

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

g . The main contention of main contention of contention of of [[the ][learned counsel ][for ][the]][[learned counsel ][for ][the]][[for ][the]][[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]certifrcate, is not [the ][doctor, ][who ][treated ][the ][applicant' ][Hence']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]certifrcate, is not [the ][doctor, ][who ][treated ][the ][applicant' ][Hence']prayed to allow the appeal [by ][setting ][aside ][the impugned ][order']

10. Now, the point [for determination is ][as ][follows:]

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

Point:-

1 1. This Court has perused the entire evidence and documentsplaced on record by both the parties. The applicant was examinedas A.W.l and she reiterated the contents of the claim applicationand deposed about the manner of the manner of the accident andalso injuries sustained by her in the accident. Further, she gotexamined A.W.2, who is doctor, to prove the injuries sustained byher. A.W.2 deposed that the applicant sustained fracture of leftcalcaneum and also injuries on the other parts of the body. Hefurther stated that he has verified the previous medical record ofthe applicant and subjected her to exercises before issuance of thedisability certificate. He assessed the disability at 35% aspermanent and partial. He also determined the loss of earningcapacity at 4Oo/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 certilicate and he assessedthe disability at 35% without any basis, without medical authorit5rand his assessment is unscientific and that he has not followed theprovisions of the Workmen Compensation Act, 1923.

MGP,JcMA 546 201 t

He a.lso [denied ][that ][the ][injuries ][mentioned ][in ][the ][disabilify]certificate [are ][not ][corresponding ][to ][the injuries ][mentioned ][in ][the]injury certificate [and ][that ][A.W- ][1 is ][not ][suffering ][from ][any]functional [disability and ][A.w. ][I ][is ][able ][to ][discharge ][her ][duties]without [anY ][diffrcultY.]

13. Learned [counsel ][for the ][appellant/opposite ][party ][No'2]contended [that ][A.W'2-doctor, ][who ][issued ][disability ][certificate, ][is]not the [doctor, who treated the ][applicant. In this ][regard, ][it ][is ][apt]to refer [to ][the ][decision ][of ][the ][Apex ][Court ][in the ][case ][of]T.J.Parameshwarappa [v. ][The ][Branch ][Manager, ][New ][India]Assurance [Company ][Limitedl, ][wherein ][it ][was ][held ][as follows:]

'The [doctor ][tuLa ][treated ][an ][injured claimant ][or ][taho]

'The examined. him [subsequentlg ][to ][assess ][tle ][extent ][of ][his]permanent disabititg [can ][giue euidence ][onlg ][in ][regard ][to]th.e extent of [pennanent ][disabilitg ]'2

14. In [view ][of ][the principle laid ][down ][in ][the ][above ][said ][decision,]

it is not [necessarJr ][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 ][subsequent]to the accident [can ][also ][depose ][about ][the disability of ][the ][injured']

I Civil Appeal Nos.8598-8599 of 2022 (aitsin9 out of Special kave Petition (C)Nos.1 1730-1 173 [1 ][of ][2O2l ][decided ][on ][la. ][ll.2022]Nos.1 1730-1 173 [1 ][of ][2O2l ][decided ][on ][la. ][ll.2022]

i.

In the [present ][case, ][A.W.2 can ][be ][considered ][as ][competent medical]officer to [assess ][the ][disability, ][as he ][is ][none ][other ][than ][former Civil]Assistant Surgeon at [Government Headquarters ][Hospital,]Nizamabad. In the [said ][circumstances, ][by ][considering ][the]evidence of [A.Ws.1 ][and ][2 ][coupled ][with ][the ][documentar5r ][evidence]in the form [of Exs.A-1 to A-5, ][the ][disability ][certificate ][under ][Ex.A-4]can certainly [be taken ]into [consideration. ][Hence, ][the contention ]ofthe learned [counsel ]for the [appellant/ ]opposite [party ][No.2 ][is]unsustainable

15. The other contention of the [learned counsel ][for ][the]appellant/ [opposite ][party ][No.2 i.e., ][the ][insurance ][company ][is that]no premium [was paid ]by opposite [party ]No.I 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 of the considered opinion that the Commissionerafter considering [the ]entire evidence and law laid down by the ApexCourt has rightly held that the applicant is entitled forcompensation and opposite party No.2 is liable to indemnifyopposite [party ][No.1 ][for ][payment ]of compensation to the applicant.

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MCP,JcMA s46 20t I

16. Even otherwise, the 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 lastauthority on facts. In view of the principle laid down in the abovesaid case, since the contentions rajsed by the learned counsel forthe appellant/opposite party itlo. 2 are based on questions of fact,it is 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 ordcr 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,tJle 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.

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17. In view of the above discussion, this [Court ]is of [the]considered opinion that the Commissioner [aJter ][considering ][a1l ][the]aspects has granted compensation, as [per the ][formula, ][which is ][as]under:

Rs.2oO3 x 60/1OO x25/lOOx 192.14 = [Rs.57728/-.]

18. The Commissioner has also granted stamp [fee ][of ][Rs.115/-]and advocate fee of Rs.SOO/-. In al[, the [Commissioner ][granted]compensation of Rs.58,3431- to the applicant, [which ][is ][just ][and]reasonable and interference of this Court is unwarranted. [The]appeal is devoid of merits and the same [is liable ][to ][be dismissed.]

19. In the result, the Civil Miscellaneous Appeal [is ][dismissed]conlrrming the order dated 26.02.2011 in W.C.No.3l1 [of ][2OO3 ][NF]on the hle of the Commissioner for [Workrnen's ][Compensation ][and]Deputy Commissioner of Labour at [Niz,amabad. ][There ][shall ][be ][no]order as to costs. Miscellaneous appeal, if any, [shall stand ][closed.]

sd/- K.sRtNtvAsA RAOJOINT //TRUE COPY//'EGIStrRARV'SECTION OFFICER

To,

1. The commissioner for workmen's compensation and Deputy commissionerof Labour at Nizamabad. (with records)3. ? Two 9n" Q9 CD [to ]Copies[Sri ][A. Ramakiishna ][Reddy; ]Advocate [OpUC]

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DATED:2911212023

JUDGMENTCMA.No.546 ot 2011

DISMISSING THE CMA

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