The National Insruancecompany Limited, Secunderabad. v. V. Pentaiah And 2 Others

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY. THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE SRI JUSTICE CHALLA KODANDA RAM CIVIL MISCELLANEOUS APPEAL NO: 61 OF 2014 Appeal under Section 30 of W.C. Act against the Order made in W.C. No.'1 61 of 2007, dated 08.07.2010 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-l at Hyderabad. Between:

The National lnsurance Company Limited, Rep. by its Divisional Manager, Chenoy Trade Centre, Secunderabad.

...APPELLANT AND

1. V. Pentaiah, S/o Ramaiah, aged 48 years, Occ: Ex Driver, R/o Vinayaknagar, lr/alkajgiri, Hyderabad.

2. D.Prabhakar Reddy, R/o H.No.6-187/A, HIVT Road, Chintal, Hyderabad.

3. B. Kishan, S/o Hanuman R/o H.No.2-'143 Fathenagar, Balanagar, Hyderabad. ...RESPONDENTS Counsel for the Appellant: SRl. V. VENKATARAMI REDDY Counsel for the Respondent No.1: SRl. S. SUDARSHAN REDDY The Court delivered the following: JUDGMENT

THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM CIVIL MISCELLANEOUS APPEAL No.61 of 2O14

ORDER

Heard the learned counsel for appellant, and the learned counsel For respondent.

This is an appeal by the insurance company. The following three contentions have been raised before this Court challenging the impugned order passed by the competent authority under the Workmens Compensation Act.

(i) that there is no employer-employee relationship and as a matter of fact the claimant himself admitted in his cross examination that there was no document to prove that he was working on the vehicle at the given point of time. (ii) that respondent No.3 claims to have been transferee of the ownershlp of the vehicle, whereas there is no transfer effected as on the date of accident.

(iii) that against 350/o loss of earning capacity as certified by the Doctor, the competent authority has taken the loss of earning capacity as 500/o and without there being any proof regarding employment as driver, excess compensation has been fixed.

Learned counsel for the appellant copiously takes this Court through the evidence and submits that this Court does not justify '\ granting of excess compensation and prays for setting aside the im pugned order dated 07.O7.2010.

\ On the other hand, the aPPeal is resisted bv the Iearned counsel for the respondent Having regard to the respectlve submissions' and on perusal of the material placed before this Court' there is no dispute that the accident occurred on 12 03 2006' The claimant examined himself as AW.1. He filed affidavit in lieu of Chlef Examination and offered himself for cross-exa minatio n ln his deposition' he narrated about the incident and deposed with respect to the injuries sustained in the accident, that he fractured both bones and left leg and has taken treatmentforonemonthaSin-patientinGandhiHospital.Hefiled Ex.A3-Certified Copy of accident register' Ex'A4-Discharge card issued by Gandhi hospital, Ex A5-Disability Certificate issued by AW'2' Ex'A7X-ray rePort, Ex.

A8-X-raY films' In that portion of cross examination which is brought to the notice of this Court, it is true that the appellant had accepted that he has not filed any document in the Court to prove that he was working on the vehicle for the past two years as driver on the Lorry bearing No,AP-9U-8088, this Court can take judicial notice of the fact that individual vehicle owners do not give any Appointment Order and the driver is employed more on trust or usually known individuals' In that view of the matter, non-filing of documentary proof by the applicant with regard to his employment status as driver cannot be put against the claimant, more particularly, in the facts of the case where the claimant has placed the driving licence and further the involvement in the accident is evidenced by Ex'A1-Certified Copy of FIR' Ex'A2Certified copy of Charge sheet' Ex'A3-Certified Copy of accident register.

/

There is no dispute that the vehicle was insured with the appellant-insurance company. In the facts of the present case, it cannot be said that the claimant has not established the relationship of employer and employee. Accordingiy, the said contention is rejected. Coming to the second matter relied upon by the respondent, Section 167 of the Motor Vehicles Act takes care of the same. It may be borne in mind that what has been insured by the insurer is the vehicle and there is no dispute there is coverage for the said vehicle. In that view of the matter, even assuming for the sake of argument that respondent No.3 was wrongly added as party in spite of I there being no transfer effected in his name, the factum that respondent No.3 has not become ostensible owner of the vehicle is not brought by the insurer. In that view of the matter, it does not make difference as to respondent No.3 not being regarded the owner of the veh icle.

Insofar as the argument of excess compensation has been granted, the facts dlsclose otherwise. The disability determined by AW.2, Orthopaedic Surgeon, he estimated physical disability of 35% and resulting in partial and permanent as per Kessler,s Guidelines with loss of earning capacity 600/o and further the injury is assumed to be grievous in nature. In spite of the same, the competent authority has taken into consideration of the evidence before it granted compensation for only loss of earning capacity of the claimant as 500/0. In those circumstances, the contention of the insurance company that excess compensation has been granted is not borne out of reco rd.

Accordingly, the appeal deserves to be dismissed. However, the interest at 72o/o per annum on the amount of compensation was granted Form the date of accident, whereas in terms of Section 4A(3) of the Workmens Compensation Act, and in terms of the judgment of the Hon'ble Supreme Court in Pratap Narain Singh Deo v. Srinivas Sabatal the interest is liable to be paid from one month after the date of accident and not from the date of accident. Accordingly, the appeal is partly allowed by modifying the impugned order with regard to date of payment of interest. No costs. lYlscellaneous petitions, iF any pending, shall stand closed. I 11rszo1 1 scc 289 SD/- B.S. CHIRANJEEVI JOINT REGISTRAR //TRUE COPY// \_,'

SECTION OFFICER To,

1. The Commissioner Workmen's Compensation and Assistant Commissioner of Labour-I, Hyderabad. (with records)

2. One CC to Sri. V. Venkatarami Reddy, Advocate IOPUC]

3. One CC to Sri. S. Sudarshan Reddy, Advocate [OPUC]

4. Two CD Copies 8br ,*.](

HIGH COURT DATED:1 110212A21 TA 14:

17 l4AR 2021 o -b o ,!

JUDGMENT

CMA.No.61 ot 2014 ALLOWING THE CMA IN PART NO COSTS t