CMA/1030/2011 of The United India Insurance Company Ltd Vs Syed Shabbir , Md.Shabbir on 30 December 2011

JUDGMENT:

The appeal is filed against the award in W.C.No.12 of 2004 onthe file of the Commissioner for Workmen’s Compensation & AssistantCommissioner of Labour-III, Hyderabad.

2. A claim for compensation of Rs.3,50,000/- was made for theinjuries received by the applicant in a motor accident.

3. The claim of the applicant is that he was a driver on the lorrybearing No.AAP 4419 belonged to the 2[nd] opposite party and it metwith an accident on 20.12.2002. He was earlier employed by the 1[st]opposite party and while he was proceeding from Peddakaparthy,parked the vehicle on the left side of the road and attending to therepairs. At that time, one RTC bus bearing No.AP 10 Z 8714 came inhigh speed and dashed against the lorry, as a result of which, hereceived multiple injuries, suffered disability and lost his earnings. Hewas paid a sum of Rs.3,500/- per month as wages. The 1[st] oppositeparty remained ex parte. The 2[nd] opposite party admitted theemployment of the driver and also the nature of the incident andclaimed that he was paying a sum of Rs.2,500/- per month as wages. The 3[rd] opposite party, who is the appellant herein, contended that theapplicant is to put strict proof of the nature of the incident and there isno employer and employee relationship with the applicant and insubstance it was pleaded that the policy does not cover the risk of theapplicant and therefore, the claim for compensation is notsustainable. After considering the evidence on record, theCommissioner has determined the salary of the applicant based on theminimum wages and took the disability as 100% and granted the compensation of Rs.3,78,690/-.

4. The point for consideration is whether the quantum ofcompensation granted by the Commissioner is excessive and theappellant is not liable to pay the same ?

5. POINT:

The question of law sought to be canvassed before this Court iswhether there is employer and employee relationship covering the riskand whether the Commissioner was right in taking loss of earningcapacity at 100% when the disability is only 30%.

So far as the nature of the incident and nature of injuriesreceived by the claimant are concerned, they are not disputable. Ascontended by the counsel for the appellant, the doctor has assessedthe disability at 25%, but, however, the loss of earning capacity wasdetermined as 100% because according to him, free movement of theshoulder is necessary for driving and in the present case, there isrestriction of the movement of the shoulder and he also stated so inEx.A.4 certificate. Under Section 4(1)(c)(ii) of the Workmen’sCompensation Act, the loss of earning capacity is concerned, it shouldbe based on the evidence of the qualified medical practitioner. It is tobe noted that the percentage of disability and loss of earning capacitymay not be the same at all times. But, however, in this case, thedoctor, who was examined on behalf of the claimant, has specificallystated that he is of the opinion that there was 100% disability becauseof the restricted movements of the shoulders, which causesinconvenience to the driver of the vehicle. Therefore, it is quite clearthat the evidence of the doctor supports the claim of loss of totalearning capacity. This being a question of fact itself has beenaccepted by the Commissioner and also supported by the evidence ofthe doctor, it is difficult to disturb the above finding.

6. The contention of the learned counsel for the appellant is that thevehicle was registered in the name of the 2[nd] opposite party by thedate of Ex.A.5 and the permit of the vehicle was also on his name. But, however, the policy was issued in favour of the 1[st] opposite party. There is no dispute about the fact that by the date of accident, thepolicy was existing. The policy was evidently in the name of the 1[st]opposite party and there was no transfer of the same by intimation tothe appellant and consequently, it was sought to be contended thatthere is no relationship of employer and employee and the risk is notcovered. On this aspect, the leaned counsel for the respondent reliedon the following decisions:

1) National Insurance Co., Ltd., Secunderabad Vs.K.Yadamma and others[[1]].

2) Uttar Pradesh State Road Transport Corporation Vs.Kulsum and others[[2]].Kulsum and others[[2]].

3) United India Insurance Co.Ltd. Vs. M.Periyasamy andanother[[3]].another[[3]].

Apart from it, it has been fairly settled that the insurance occurswith the vehicle and the Insurance Company cannot escape liabilitymerely because of non-information. Therefore, in view of the abovecircumstances, I find no grounds to interfere with the award of thelower Tribunal.

Accordingly, the appeal is dismissed. There shall be no order asto costs.

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JUSTICE N.R.L. NAGESWARA RAO

[1]2005(3) ALD 6432005(3) ALD 643

[2](2011) 8 Supreme Court Cases 142(2011) 8 Supreme Court Cases 142

[3]2010 ACJ 3002010 ACJ 300