CMA/4118/2004 of Saleem , Zareen Vs Shaik Mahaboob on 31 December 2014

HONOURABLE SRI JUSTICE S.RAVI KUMARCIVIL MISCELLANEOUS APPEAL No.4118 OF 2004--Dated 31122014

Between:Saleem Alias Zareen.

...Appellant.

And:

Shaik Mahaboob and another.

…Respondents.

HONOURABLE SRI JUSTICE S.RAVI KUMARCIVIL MISCELLANEOUS APPEAL No.4118 OF 2004JUDGMENT:

This appeal is against order dated 7-8-2001 inW.C.No.184 of 1997 on the file of Assistant Commissionerof Labour, Nizamabad.

Brief facts leading to this appeal are as follows:

Appellant herein filed application beforeCommissioner of Workmen Compensation, Nizamabadcontending that he was a Cleaner on the Ambassador Carbearing No.APJ-1900 belonging to first respondent hereinwhich is insured with second respondent and drawing asalary of Rs.2,500/- per month and that on 11-8-1995while he was travelling in the said car as Cleaner andduring his course of employment, due to the negligentdriving of car, the car dashed against DCM bearingNo.AP-23-T-2300, as a result of which he received injurieson head, face, right hand, left leg and injuries on otherparts of body and that he was shifted to GovernmentHospital, Siddipet and that on account of accident, he isunable to do his previous work and therefore, entitled forcompensation of Rs.1,00,000/- and lower authoritygranted Rs.56,000/- by taking disability at 50%. Aggrieved by the said order, claimant preferred presentappeal.

Heard arguments.

Advocate for appellant submitted that AssistantCommissioner of labour acted contrary to law and failed totake loss and earning capacity at 100% as there wascomplete functional disability. He further submitted thatAssistant Commissioner of Labour wrongly reducedwages of the workman without any contra evidence. Hefurther submitted that Assistant Commissioner of Labourerred in not awarding any interest on the compensationand for these reasons, the order of the AssistantCommissioner is to be modified.

On the other hand, advocate for InsuranceCompany submitted that though advocate for appellantcontended that claimant was getting a monthly salary ofRs.2,500/-, he has not produced any evidence in supportof the same and the employer is also not examined toprove the salary and wages of the labour were taken intoconsideration and there is no error in the order of theAssistant Commissioner of Labour. He further submittedthat as per the medical evidence, there was only partialdisability which was assessed at 50% and the same wastaken by the Assistant Commissioner of Labour andtherefore, there is no error or wrong in the findings of theAssistant Commissioner of Labour which requiremodification and that the appeal is devoid of merits.

Now the point that would arise for myconsideration in this appeal is whether the orderimpugned is legal, correct and proper?POINT:

There is no dispute with regard to accident that tookplace on 11-8-1995. There is also no dispute with regardto jural Relationship of employee and employer betweenappellant and first respondent herein. According toappellant, he was working as Cleaner and the car belongsto the first respondent herein and he was getting a salaryof Rs.2,500/- per month. To prove the same, the appellant relied on his evidence only. He has notproduced any proof to show that he was getting a salaryof Rs.2,500/- per month from first respondent herein.

In the cross-examination, he deposed that he iscleaner working under the first respondent herein. Hedenied the suggestion that he was not taking Rs.2,500/-as salary.

There is absolutely no other evidence to prove theincome of the appellant. As there is no positive evidencewith regard to the salary or income of the injured, lowerauthority has fixed his monthly income on the basis of hisprofession.Assistant Commissioner of Labour tookRs.1800/- as salary of a labourer in the year 1998.Though appellant contended that the AssistantCommissioner of Labour was wrong in takingRs.1800/-per month,he failed to produce any material to show thatthe charges of labourer were more than Rs.1800/- permonth as on the date of accident.

On a scrutiny of material, I do not find any wrong inthe order of the Assistant Commissioner of labour intaking Rs.1800/- per month as a probable income of theapplicant as a cleaner.

The next objection of the appellant is that AssistantCommissioner of labour erred in not taking functionaldisability at 100%. Medical Officer who issued the Disability Certificate is examined as P.W.2 and hedeposed that during his examination, he assessed thephysical and functional disability of injury at 70%. In thecross-examination, he deposed that he is not the memberof the Medical Board for issuing the medical disability. When the Medical Officer clearly deposed that functionaldisability is only 70% without any further material, theclaim of the appellant for 100% functional disability cannotbe accepted. Taking on the percentage of functionaldisability, loss of earning capacity was fixed at 50%. I donot find any wrong in the order of the Assistant Commissioner of Labour in taking loss of earning capacityat 50%. Therefore, the objection of appellant is also nottenable.

Now the last contention of the advocate forappellant is that lower authority has not granted anyinterest though as per the Act, applicant is entitled forinterest.

As seen from the order, the lower authority has notgranted any interest. Honourable Supreme Court inSABERABIBI YAKUBBHAI SHAIKH AND OTHERSVersus NATIONAL INSRUANCE COMPANY LIMITED

AND OTHERS([[1]]) held that interest has to be grantedfrom the date of accident, till the date of deposit.

So considering the same, applicant is entitled forinterest at 9% per annum from the date of accident, till thedate of deposit on the compensation arrived by theAssistant Commissioner of Labour.

For these reasons, appeal is partly allowed grantinginterest at 9% p.a., on the awarded amount from the dateof accident i.e., 11-8-1995, till the date of deposit and the Insurance Company has to deposit the differenceamount by calculating the interest within 30 days from thedate of receipt of copy of this order.

As a sequel to the disposal of this revision, theMiscellaneous Petitions, if any, pending, shall standdismissed.

_______________________

JUSTICE S.RAVI

KUMAR

--Dated 31122014.

Dvs

HONOURABLE SRI JUSTICE S.RAVI KUMAR

CIVIL MISCELLANEOUS APPEAL No.4118 OF 2004

--Dated 31122014

Dvs

[1](2014) 2 SCC 298