CMA/548/2011 of THE NEW INDIA ASSURANCE COMPANY, NIZAMABAD Vs DUDDEDA PRAKASH, NANDED DIST. AND ANO on 29 December 2023

IN THE HIGH COURT FOR THE [STATE ][OF ][TELANGANA]AT HYDERABAD

FRIDAY THE TWENW [NINTH DAY ][OF ][DECEMBER]TWO THOUSAND AND [TWENTY THREE]

PRESENT

THE HONOURABLE SMT JUSTICE [M.G.PRIYADARSINI]

CIVIL MISCELL[ANEOUS][APPEAL NO: ][548 ][OF ][2011]

Appeal under Section 30 Workmen's [Compensation ][Act, ][1923, against the]order dated 26.02.2011, [in W.C.No. ][312 ][ol ][2OO3 ][passed by the commissioner for]Workmen's Compensation [and Deputy Commissioner ][of ][Labour ][at ][Nizamabad']

Between:

TheNeWlndiaAssuranceCompanyLimited,RepbyitsDivisionallvlanager,Divisional Office, Opp: ZP [Olfice, Subashnagar, Nizambad']

...APPELLANT/2"d OPPOSITE [PARTY]

AND

1- Duddeda Prakash, S/o. [Deva Rao, Hindu, Occ: Labourer on Tipper Bearing]r.ro. Ap -2s-a771, i1/o.Pouna [village, ][Himayatnagar Taluq, Nanded District']r.ro. Ap -2s-a771, i1/o.Pouna [village, ][Himayatnagar Taluq, Nanded District']

...RESPONDENT/APPLICANT

2. Shaik Mahboob, S/o. [Shaik ][Ahmed, ][Major, Owner of Tipper Bearing ][No ][AP ][-]25-477 1, R/o. H. No. [6-20-5 1, ][Dubba, Nizamabad.]25-477 1, R/o. H. No. [6-20-5 1, ][Dubba, Nizamabad.]

...RESPONDENT/1 "t OPPOSITE [PARTY]

CMAMP.o86 0F 201

Petition under section [151 ][CPC praying that ][in ][the circumstances stated ][in]the affidavit filed in support [of the ][petition, ][the ][High Court may be ][pleased ][to]grant stay of operalion of the order in wc [No. 312 ][o1 ][2OO3 ][on ][the ][file of ][the]6ommissioner for Workmen's [Compensation ][and ][Deputy ][Commissioner ][of]Labour, at Nizamabad, dated [26th ][February, ][201 ][1, ][pending ][disposal ][of ][the ][main]

CMA.

Counsel for the Appellant [: SRl. ][A. ][RAMAKRISHNA ][REDDY]

Counsel for Respondents [: None ][Appeared]

The Court made the following: [JUDGMENT]

\

THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

CML MISCELLANEOUS APPEAL No.548 of 2O1lJUDGMENT:

1 . The present Civil Miscellaneous Appeal has been directedagainst order dated 26.O2.2011 in W.C.No.31.2 of 2003 NF on thefile of the Commissioner for Workmen's Compensation ard DeputyCommissioner of Labour at Nizamabad (hereinafter referred to asthe Commissioner'). The said case was filed by respondent No.1herein seeking compensation for injuries sustained by him in anaccident that occurre d on 02 .06.2002 and the same was partlyallowed by the Commissioner granting compensation ofRs.95,a2O/-. Aggrieved by the salne, the present CivilMiscellaleous Appeal is filed at the instance of opposite partyNo.2 before the Commissioner i.e., the insurance company.

2. The appellant 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 hereina-fter 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.l as labourer on tipper bearing

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No.AP 25 T 4771. On 02.06.2002, the applicant was discharginghis duties as labourer on the said tipper under the instructions ofopposite party No. 1 and the said tipper was proceeding fromNizamabad to Bodhan. On the said date, at about 04:OO AM,when the said tipper reached Nehrunagar village sivar, the driverof the said tipper drove it in rash and negligent manner lostcontrol over the tipper and dashed to or-re tourist bus bearingNo.KAO 28 3375, which was coming from Akola side. Theapplicant sustained fracture injuries in the said accident alongrvith other labourers. He was immediately shifted to GovernmentHospital, Nizamabad, and after that he underwent treatment inprivate hospital also. Due to the injuries sustained, the applicantbecame permanently disabled and he was also removed fromemployment. With regard to the accident, the Nizamabad RuralPolice registered a case in Crime No. 1 13 of 2OO2 under Section337 of the Indian Pena-l Code, 1860. The applicant was 35 yearsoid at the time of accident and he was being paid al amount ofRs.4,000/- per month towards salary. He filed the present claimapplication seeking compensation of Rs.2,OO ,OOO /- as the tipperbearing No. AP 25T 4771was owned by opposite party No.1 andinsured with opposite party No.2

JMGP,JcMA 548 201 I

4. Opposite party No. 1 remained ex parte. Opposite party No.2filed its written statement denying the averments of the claimapplication such as age, wages, employee and employerreiationship and contended that as no premium is filed to coverrisk of labourer. It is also contended that the applicant wasunauthorized passenger on the tipper bearing No.AP 25 T 477 1,which was involved in the accident and that the compensationclaimed is excess and exorbitant. Hence, prayed to dismiss theclaim application

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

6. On the basis of the above pieadings and evidence, theCommissioner framed the following issues for consicleration .1. Whether the applicant met with the accident on 02.06.2002at about 4 a.m, during the course and out of his employmentas labourer on the tipper bearing No.AP 25 T 477 | and in theemployment of opposite party No. 1, he sustained injuries in theaccident?

2. If yes, what is the percentage of physical disabitily andconsequent loss of earning capacily suffered by the applicant?

3. Who are liable to pay compensation to the applicant? and MCP,JcMA 548 201 [r]

4. What isthe amount of compensation entitled by theapplicant?"

7 . After considering the evidence and documents filed by bothsides, the Commissioner awarded an arnount of Rs.95,420/-towards compensation to the applicant. Aggrieved by the same,the present appeal is filed by opposite party No.2.

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

The main contention contention of the learned counsel counsel for the 9 . The main contention contention of the learned counsel counsel for theappellant/ 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.It is further contended that A.W.2-doctor, who issued disabilitycertificate, 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 asgranted by the Commissioner?"

,

)MGP,JcMA 548 20t I

Point:-

1 1. This Court has perused the entire evidence and documentsplaced on record by both the parties. The applicarrt was examinedas A.W. I and he reiterated the contents of the claim applicationand deposed about the manner of the manner of the accident andalso injuries sustained by him in the accident. Further, he gotexamined A.W.2, who is doctor, to prove the injuries sustained byhim. A.W.2 deposed that the applicant sustained fracture of 1"t,2nd, 3rd right ribs, fracture of left clavicle arld injuries to other bodyparts. He further stated that he has verified the previous medicalrecord of the applicant and subjected him to exercises beforeissuance of the disability certificate. He assessed the disability at507o as permanent afld partiaJ. He also determined the loss ofearning capacity at 4Oo/o.

12. Though, A.W.1 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 50% without any basis, without medical authorityand his assessment is unscientific and that he has not followed theprovisions of the Workmen Compensation Act, 1923.

MGP.JcMA 548 2011

He also denied that the injuries mentioned in the disabilitycertifrcate are not corresponding to the injuries mentioned in theinjury certilicate and that A.W.1 is not suffering from anyfunctiona-l disability and A.W.l is able to discharge his dutieswithout any difficulty.

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

"The doctor uho treated an injured claimant or who examined him subsequentlg to cssess the extent of hispermanent disabilitg can giue euidence onlg in regard tothe 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 applicarrt subsequentto the accident can also depose about the disability of the injured ' [Civil Appeal Nos.8598-8599 of 2022 (arising ][out ][of ][Special ][Leave ][Petition ][(C)]Nos. [1 ]173O- 1 1731 of 2O2l decided or.r 18.11.2022Nos. [1 ]173O- 1 1731 of 2O2l decided or.r 18.11.2022

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.1 and 2 coupled with the documentar5r evidencein the form of Exs.A- 1 to A-5, the disability certihcate under Ex.A-4can certainly be taken into consideration. Hence, the contention ofthe learned counsel for the appellant/ opposite party No.2 isunsustainable.

15. The main contention of the learned counsel for theappellant/opposite party No.2 i.e., the insurance company is thatno premium was paid by opposite party No. 1 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.

MGP,JcMA 548 20 t I

76. Even otherwise, the contention of the opposite party No.2before this Court is certainly basedon question of fact. TheHon'ble Supreme Court, in the caseof Golla Rajanna v. TheDivisional Managerz held that asper 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 raised by the rearned counsel forthe appeilant/opposite pafty No. 2 are based on questions of fact,it is evident that scope of appeal under section 30 of theWorkmen's Compensation Act, 1923, is very limited, thereby theambit of interfering with the order passed by the Commissioner isalso limited until arrd unless the order passed by theCommissioner is perverse or when there is patent irregularity oriilegality 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 ,egislation enacted to protect the interest of workmen.

o

MGP,JcMA 548 201 [I]

17 . 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.2003 x 601 100 X 4Ol 100 X [197 ][.06 ][: ][Rs.94731l-']

18. The Commissioner has also [granted ][starnp ][fee ][of ][Rs.189/-]and advocate fee of Rs.5O0 / -. In all, [the ][Commissioner ][granted]compensation of Rs.95,42O1- to [the ][applicant, ][which ][is ][just ][and]reasonable ald interference of [this ][Court ][is ][unwarranted' ][The]appeal is devoid of merits [and the ][same ][is liable ][to ][be ][dismissed.]

lg. In the result, the Civil [Miscellaneous ][Appeal ][is ][dismissed]conf,rrming the order dated 26.O2.2O11 [in ][W.C.No.312 of ][2OO3 ][NF]on the file of the Commissioner for [Workmen's Compensation ][ald]Deputy Commissioner of Labour at Nizamabad. [There ][shall ][be no]order as to costs. Miscelianeous [appeal, ][if ][any, ][shall ][stand ][closed.]

SD/. B.S.CHIRANJEEVIJOINT REGISTRAR

//TRUE COPY//SECTION OFFICER

To,1. The commissioner for women's compensation and Deputy commissionerof Labor, at Nizamabad.(with record)1. The commissioner for women's compensation and Deputy commissionerof Labor, at Nizamabad.(with record)

record)3. 2. Two CD CopiesOne CC ro SRt. A. RAMAKRTSHNA REDDY, Advocate [OpUC]3. 2. Two CD CopiesOne CC ro SRt. A. RAMAKRTSHNA REDDY, Advocate [OpUC]

""\\6DLa

HIGH COURT

DATED:2911212023

JUDGMENTCMA.No.548 of 2011

DISMISSING THE C.M.A

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