National Insurance Company Limited, Eluru. v. Kothapalli Narasimha Murthy And Another

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU CIVIL MISCELLANEOUS APPEAL No.1496 OF 2008 JUDGMENT:

This appeal is filed against the order dated 10.01.2006 in W.C.No.55 of 2005 on the file of the Commissioner for Workmen's compensation and Assistant Commissioner of Labour, Eluru. The case of respondent No.1/applicant is that he is the driver of the lorry bearing No.ADM 5707 which is owned by Opposite Party No.1 and insured by Opposite Party No.2. He further averred that on 08.04.2000 he met with an accident which arose out of and in the course of employment. Hence, he filed the W.C. claiming compensation of Rs.1,00,000/-. Respondent No.1 did not appear. Respondent No.2 filed counter and contested the case. During trial, on behalf of the applicant, A.Ws.1 to 3 were examined and Exs.A1 to A7 were marked. On behalf of the opposite parties, R.W.1 was examined and Exs.B1 and B2 were marked. After considering the oral and documentary evidence, the Commissioner for Workmen's Compensation held that the opposite party Nos.1 and 2 are jointly and severally liable to pay a sum of Rs.2,62,164/- to the applicant. It is this order that is now challenged in the appeal.

Heard Sri Ravi Shankar Jandhyala, learned counsel for the appellant and Sri N.Nageshwara Rao, learned counsel for respondent No.1.

Learned counsel for the appellant initially argued about the validity of licence, but later, on a perusal of the record, having found that the same is vogue, he submitted that he is not relying on the same. He also argued that the injured is not the employee

of respondent No.2. The respondents however pointed out that the lower Court after examination of all the documents including the FIR came to a conclusion that the injured was an employee of respondent No.2. As regard the wages that are payable, the Commissioner adopted the relevant wages from the GOs that are applicable to the employment. The procedure of adopting the minimum wages as the wages as has been approved by this Court in a series of judgments. Therefore, this Court concurs with the findings of the lower Court, relying on Ex.A1-FIR and Ex.B2-M.V.I. report, that respondent No.1 was an employee of respondent No.2 and entitled for wages as per the Minimum Wages Act.

Learned counsel for the appellant submits that brakes of the vehicle failed and that the employer did not keep the vehicle in a roadworthy condition and therefore, there is a violation of policy conditions. This Court is not inclined to accept the same. A sudden accident in the middle of a trip which is beyond the control of either of the parties cannot be a ground to conclude that respondent No.2 was not diligent in maintaining the vehicle in a roadworthy condition. This is the reason why an accident is called as untoward incident. This Court does not accept the contention that brake failure is a ground for the appellant to avoid policy conditions more so when there is no positive evidence of a lack of care.

The last issue on which both the learned counsel argued about is the loss of earning capacity. In this case, respondent No.1 was treated by a doctor who was examined as A.W.3. The said doctor is a civil surgeon since 1998. He is a member of the panel of the Medical Board, Eluru. He stated that the disability

sustained by respondent No.1 is 20% which he assessed on the basis of Mc.Bride Scale. With the left leg, the operation of foot pedal is restricted. In his cross-examination, he again states that respondent No.1 can operate the clutch pedal, but he may not utilize the limb, like earlier. Based on this evidence, the Commissioner for Workmen's Compensation awarded 100% as the loss of earning capacity.

Learned counsel for the appellant submitted that the said assessment is contrary to the evidence of the doctor who clearly stated that there is some difficulty in operation, but the doctor did not depose that the applicant is totally unable to drive the vehicle. In reply thereto, learned counsel for the respondent states that the evidence available on record shows that respondent No.1 is not able to drive the vehicle and he is also undergoing treatment even as on today. Therefore, he submits that the disability of respondent No.1 is 100%. He also relies upon the judgment of this Court dated 19.01.2018 in C.M.A.No.458 of 2006 and argues that this Court is bound to follow the said judgment.

A Perusal of the said judgment, however, reveals that the doctor in that case has deposed that there is total loss of ankle movement and the loss is permanent. The doctor also deposed that even after physiotherapy and surgery, the recovery may be partial. In the case of Pratap Narain Singh Deo vs. Srinivas Sabata and another1, there was total loss of limb which led the Hon'ble Supreme Court to come to a conclusion that the loss of earning capacity is 100%. In the case on hand, there is no total loss of limb.

clutch of the vehicle can be operated but with certain difficulty. Therefore, this Court is of the opinion that the assessment of loss of earning as 100% is not correct.

Considering the facts and circumstances of the case, including the medical evidence, this Court is of the opinion that the assessment of loss of earning capacity should be 50% and not 100%. Therefore, the order of the Commissioner is modified and the appeal is allowed fixing the compensation payable based on the loss of earning capacity at 50%. Consequently, the calculation will be as follows: 21847 x 2000 x60/100 x 50% = Rs.1,31,082/- along with interest at 8% per annum from the date of petition till the date of realization.

In the result, the appeal is partly allowed and the compensation is reduced from Rs.2,62,164/- to Rs.1,31,082/-. Respondent No.1 is entitled to Rs.1,31,082/- with interest at 8% per annum from the date of petition till the date of realization. No costs.

The Miscellaneous Petitions, if any, pending shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date : 27.02.2018 ssp