APHC010021882013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3459] TUESDAY, THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM CIVIL MISCELLANEOUS APPEAL NO: 808/2013 Between: 1. M/S.NATIONAL INSURANCE COMPANY LIMITED, M/S.NATIONAL INSURANCE COMPANY LIMITED O/O.CHENNAI. O/O.BRANCH OFFICE: P.K.LAYOUT, TIRUPATI, CHITTOOR DISTRICT. ...APPELLANT AND 1. V NAGARAJU ANR, S/O.CHENGAIAH R/O.PERINDESAM, REGIGUNTA POST, KVB PURAM MANDAL, CHITOOR DISTRICT. 2. C RAMIJI, W/O.C.KHADAR OWNER OF THE MINI, LORRY NO.AP 03 V 5054 R/O.D.NO.7-170 [10], P.V.ROAD, SRIKALAHASTI, CHITTOOR DISTRICT. ...RESPONDENT(S): Appeal Under Section_____against orders IA NO: 1 OF 2008(CMAMP 624 OF 2008 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 condone the delay of 36 days in filing the appeal against the order dated 18.12.2007 in WC No.18/2005 of the Commissioner for Workmen's Compensation cum Asst.Commissioner of Labour, Tirupati 2 JS,J C.M.A.No.808 of 2013 IA NO: 2 OF 2008(CMAMP 646 OF 2008 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 stay all further proceedings in pursuance of the order dated 18.12.2007 in WC No.18/2005 of the Commissioner for Workmen's Compensation cum Asst.Commissioner of Labour, Tirupati pending disposal of the appeal before this Hon'ble Court Counsel for the Appellant: 1. V VEERABHADRA CHARY Counsel for the Respondent(S): 1. T JANARDHAN RAO This Court made the following: 3 JS,J C.M.A.No.808 of 2013 JUDGMENT: This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short “the Act”) at the instance of the National Insurance Company Limited against the injured/respondent No.1 contending that the judgment and award of the Commissioner for Workmen's Compensation- cum-Assistant Commissioner of Labour, Tirupati, dated 18.12.2007 passed in W.C. Case No.18 of 2005 are not correct. 2. The Commissioner has awarded a sum of Rs.1,18,309/- as compensation, together with interest at 9% per annum from the date of the accident to the date of receipt of the order, to the respondent No.1. 3. In the present appeal, it was contended that the claimant had no valid driving licence and failed to adduce evidence to establish that the claimant had no valid licence. In the memo of the appeal, only two substantial questions of law arise for consideration, namely, whether the Commissioner under the Workmen’s Compensation Act has jurisdiction in the absence of any evidence establishing the employer-employee relationship between the claimant and the 2nd respondent, and whether the Commissioner committed an error in law in awarding interest from the date of the accident, whereas under Section 4-A(3) (a) of the Act, the 4 JS,J C.M.A.No.808 of 2013 Commissioner can award interest only when the employer fails to pay the compensation within one month from the date it fell due. 4. The brief facts leading to the filing of the appeal are that the claimant, respondent No. 1, was employed as a driver in Mini Lorry No. AP-03-V-5054 and was receiving Rs.3,000/- per month as salary while in the employment of respondent No.2. On 22.10.2004, the claimant was driving the aforesaid mini lorry along with respondent No.2 at Pathakalva, Chandragiri, Renigunta. The driver of another lorry going ahead of the mini lorry suddenly applied brakes and stopped the vehicle on the road, and as such, the claimant dashed the lorry on its back side. 5. The claimant-respondent No. 1 tried to avoid the accident but hit the lorry, resulting in fractures and other grievous injuries to him. He was shifted to SVIMS and then to Balaji Orthopaedic and Trauma Hospital, Tirupati, where he underwent surgery on his fractured legs and received treatment for one month. As a result of the accident, he is unable to walk or stand, thereby sustaining permanent disability, and has become unfit for driving work. Respondent No. 2 remained ex parte before the learned Commissioner. 6. The claimant-respondent No.1 produced evidence in support of his pleas, including medical evidence. The doctor, R.V. Raveendra Babu, an 5 JS,J C.M.A.No.808 of 2013 Orthopaedic Surgeon, issued a PD certificate of the claimant (Ex.A6), stating that the patient has surgical scars over both thighs, hips, and the abdomen related to surgery of both femur bones; that he cannot squat or sit; that he cannot perform any hard work; and that he cannot drive a light motor vehicle, with 25% disability. 7. On appreciation of the material on record, the Commissioner concluded that there is a total permanent physical disablement of 25%. Having regard to the age of the injured at 21 years and taking into consideration the monthly salary of Rs. 3541.50, the compensation was awarded at Rs.1,18,309/-. 8. Aggrieved by the said order, the present appeal has been filed mainly on the ground of questioning the amount of compensation awarded by the Commissioner. 9. Having heard the learned counsel for the parties and perused the record, the learned counsel for the appellant has placed reliance upon the following ruling: M/s Balaji Allianz General Insurance Company Limited Vs. Chenchlakshmi and others (CMA No.238 of 2020 in the High Court of Judicature at Madras dt.25.03.2021) – wherein it is held as under: 6 JS,J C.M.A.No.808 of 2013 “9. in view of the facts and circumstances, this court has not hesitation in arriving a conclusion that the third respondent employer is liable to pay compensation as the claimants could not able to establish that the deceased was possessing a driving license at the time of the accident.” 10. In contra, the learned counsel for the 1st respondent/claimant submitted that it was a case of permanent partial disablement. The claimant was a driver of a mini lorry. After the accident, he was unable to perform that job. Earnings are not the same as earning capacity; loss of physical capacity is not coextensive with the loss of earning capacity. He relied on the following cases in support of his argument: (i) Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Ors (MANU/SC/7544/2008): “Para-18. In the light of the above-settled proposition of law, the appellant insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.” (ii) Oriental Insurance Co. Ltd. Vs. M.Lakshmidevi and Ors (MANU/AP/2174/2022): “para-21. POINT NO.3: Admittedly, so far as driving license of the deceased is concerned, it is the specific contention of the appellant that the deceased has no driving license at all. Though the insurer has taken such a plea that the deceased did not have valid and effective driving license to drive the vehicle bearing No.GA 02 A 9603 as on the date of the incident, but it is not lead under evidence in 7 JS,J C.M.A.No.808 of 2013 support of its contention. No doubt, under Section 149(2)(ii)(a) of the Act, the Insurance Company can avoid its liability if a driver of a vehicle is not duly licensed. Section 5 of the Act shows no owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of the Section 3 or Section 4 to drive the vehicle. But it is settled law that mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of the negligence and failed to exercise reasonable care in the matter to fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not qualified to driver at the relevant time. Para-22. However, the license of the deceased has no role at all in this case, as the incident was not happened while driving the vehicle. Therefore, the defence of the insurer in this regard has no locus. Thus, this point is answered against the appellant and in favour of the applicants.” (iii) Shriram Insurance Co. Ltd. Vs. Bandaru Narayanamma and Ors (MANU/AP/1771/2022): “Para-17. Coming to the facts of the case, insurance company is disputing the relationship of employer and employee between the opposite party No.1 and deceased. By examining AW2 cleaner of vehicle, claimants proved that deceased was working as driver of vehicle on the date of accident. In fact, A.W.2 deposed that deceased was working as driver under opposite party No.1 since three years prior to the accident. In the absence of any contra evidence the finding recorded by learned Commissioner that the deceased was working as driver does not brook interference from Court. In fact, learned Commissioner also considered Exs.A1 to A4, wherein the occupation of the deceased was shown as driver under opposite party No.1. Therefore, first requirement of employer and employee relationship is proved.” 11. The contention raised by learned counsel for the appellant is that the claimant had no valid driving licence and failed to adduce evidence to 8 JS,J C.M.A.No.808 of 2013 establish that he had no licence. The burden lies on the Insurance Company to prove that the driver had no driving licence, and that the employer was negligent in allowing the vehicle to be driven by an unlicensed driver. The Insurance company cannot avoid its liability, in view of the decision of the Hon’ble Supreme Court reported in National Insurance Company Limited v. Swaran Singh (2004 (2) ALD 36). 12. Apart from the above, the Insurance Company disputes the employee-employer relationship between respondent No.1 and respondent No.2. The claimant in his evidence as A.W.1 proved that he was working as a driver of the vehicle on the date of the accident and was driving it along with respondent No.2. In fact, in cross-examination, he stated that he could drive a mini lorry. The cleaner gave a police report. In the absence of any contra evidence, the finding recorded by the learned Commissioner that the claimant was working as a driver does not allow interference by the Court. In fact, the learned Commissioner also considered Exs. A1 to A6, wherein the occupation of the claimant was shown as driver under respondent No.2. Therefore, the first requirement of an employer- employee relationship is proved. 13. With regard to the second point for consideration, the award of interest from the date of the accident, this appeal was heard on a 9 JS,J C.M.A.No.808 of 2013 substantial question of law. The only significant legal issue raised and argued was whether the Commissioner was justified in awarding interest at the rate of 9% per annum after 30 days from the date of the accident. It is essential to review the relevant provisions relating to appeals and payment of interest. 14. The claimant suffered serious injuries in a truck accident during the course of his employment. Subsequently, a claim was filed before the Commissioner for Workmen’s Compensation – cum – Assistant Commissioner of Labour, Tirupati, which was allowed on the ground that in spite of all the possible treatment, the claimant was permanently disabled up to 25%, which would reduce his earning capacity up to 100%. The Commissioner awarded compensation and ordered that interest at 9% per annum be paid on the amount from the date of the accident until it was deposited. 15. Upon a strict reading of Section 4A of the Workmen’s Compensation Act, 1923, the Commissioner is statutorily mandated to direct the employer to pay interest at 12% per annum or a higher rate not exceeding the maximum leading rate of scheduled bank, if compensation is not paid within one month from the date it fell due. In P. Meenaraj v. P. Adigurusamy (Civil Appeal No. 209 of 2022), the Apex 10 JS,J C.M.A.No.808 of 2013 Court reaffirmed that interest is payable from the date of the accident, rejecting the contention that it accrues only 30 days after adjudicating the claim. 16. The accident occurred way back in 2004 and therefore, the rate of interest must be determined taking the factor into account. I think it would be appropriate to award interest at 9% per annum. 17. There are no grounds for interference by this Court and the appeal is liable to be dismissed. 18. Accordingly, the Civil Miscellaneous Appeal is dismissed, confirming the Award dated 18.12.2007 passed in W.C.Case No.18 of 2005 on the file of the Commissioner for Workmen’s Compensation-cum-Assistant Commissioner of Labour, Tirupati. No costs. As a sequel, miscellaneous petitions, if any pending, shall stand closed. _________________________ JUSTICE SUMATHI JAGADAM 24th February, 2026 cbs 11 JS,J C.M.A.No.808 of 2013 THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM C.M.A.No.808 of 2013 24th February, 2026 cbs