APHC010771972013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3327] MONDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CIVIL MISCELLANEOUS APPEAL NO: 940/2013 Between: 1. THE ORIENTAL INSURANCE COMPANY LIMITED, REP., BY ITS BRANCH MANAGER, BRANCH OFFICE OPP: TO DISTRICT COURT, KADAPA ...APPELLANT A N D 1. MOGAL SALAR BAIG AND ANOTHER, S/O. MAHABOOB BAIG, OCC: DRIVER, R/O. D.NO. 9/634-1, AGADI STREET, KADAPA CITY AND DISTRICT. 2. C SREERAMULU REDDY, S/O. CHINNA BALI REDDY, OCC: OWNER OF LORRY NO. AP-04-V-2445, R/O. D.NO. 1/33, RAMARAJUPALLI, KADAPA DISTRICT. ...RESPONDENT(S): Appeal filed under Section 30 of the Workmen Compensation Act, 1923 against the orders dated 27.04.2011 made in W.C.No.62/2009 passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Kadapa. IA NO: 1 OF 2013(CMAMP 453 OF 2013) 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 condone the delay of 194 days in filing the appeal. IA NO: 2 OF 2013 (CMAMP 487 OF 2013) 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 stay all further proceedings in WC.No. 62 of 2009 (F) dt. 27/04/2011 including the withdrawal of 2 the money deposited before the Commissioner for Workmen's Compensation and Asst. Commissioner of Labour at Kadapa. IA NO: 3 OF 2013 (CMAMP 1882 OF 2013) 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 vacate the interim order passed in CMA.MP.No.487 of 2013 in CMA.SR.No.3169 of 2013 dated: 7/3/2013 and permit the petitioner to withdraw the amount deposited in W.C.No.62 of 2009, dated: 27/4/2011 on the file of the court of the Commissioner for Workmen's Compensation and Assistance Commissioner of Labour, Kadapa, without furnishing guarantee and pass IA NO: 7 OF 2013(CMAMP 8809 OF 2013) 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 pass Counsel for the Appellant: 1. V RAGHU Counsel for the Respondent(S): 1. V RAGHU Counsel for the Respondent(S): 1. S ARIFULLAH The Court made the following: 3 J U D G M E N T Challenge in this Civil Miscellaneous Appeal filed by the appellant herein/Insurance Company, is to the Order, dated 27.04.2011, in W.C.No.62 of 2009 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Kadapa (‘the Commissioner’ for short), whereunder the Commissioner, dealing with claim for compensation made by the respondent No.1 herein/applicant for a sum of Rs.5,00,000/-, on account of permanent disability sustained by him in a motor vehicle accident, which occurred on 25.02.2009 during night hours, awarded a sum of Rs.4,19,500/- as compensation. 2. The parties to this C.M.A. will hereinafter be referred to, as described before the Commissioner, for the sake of convenience. 3. Case of the applicant before the Commissioner, in brief, is that he was working as Driver of the lorry bearing registration No.AP04 V 2445, belonging to 1st respondent and it was insured with 2nd respondent-Insurance Company vide Policy No.432706/31/ 2009/1444 valid from 06.07.2008 to 05.07.2009, covering the risk of Driver; that as per the instructions of 1st respondent, the applicant loaded Barites Powder in the lorry bearing registration No.AP04 V 2445 on 20.02.2009 at Kadapa, and after unloading the same at Bombay, the lorry was proceeding to Kadapa with a load of parcel 4 material; that on 25.02.2009 during night hours, while the lorry was going to Kadapa and reached near Lakshminarayanapur Chowrastha, the lorry met with an accident due to rash and negligent driving of driver of opposite coming lorry bearing registration No.AP29 X 8447, due to which, the applicant sustained fracture injuries to his both legs and he was admitted in the Government Hospital, Thandur; that subsequently, he was admitted in RIMS Hospital, Kadapa and underwent treatment. Basing on the statement of the injured, a case in Crime No.24 of 2009 of Yalala Police Station of Rangareddy District was registered against the driver of the offending vehicle. The applicant took treatment, but the injuries were not cured and he became permanently disabled person. The applicant was earning a sum of Rs.4,000/- per month towards wage and Rs.150/- per day as batta, but due to the injuries sustained in the accident, the applicant lost his income and became helpless. Though, the respondents were asked to pay compensation by issuing legal notice on 08.07.2009, they did not do so. Hence, the applicant filed the petition seeking compensation for a sum of Rs.5,00,000/- under the Workmen’s Compensation Act, 1923 (for brevity ‘the Act, 1923’). 4. Respondent No.2/Insurance Company filed counter denying the employment of applicant under respondent No.1 and 5 also his earning capacity of Rs.4,000/- per month towards wage and Rs.150/- towards batta. It is contended that in drought prone area like Rayalaseema, the lorry drivers would be paid not more than Rs.1,000/- per month towards wage and batta. The applicant has to claim compensation against the driver, insured and insurer of the lorry bearing registration No.AP29 X 8447. Hence, it is prayed to dismiss the claim petition. 5. Basing on the above pleadings, the Commissioner settled the following issues for inquiry: (1) Whether the applicant was a Workman as per the provisions of the Workmen’s Compensation Act, 1923 and he met with the accident arising out of and in the course of his employment resulting into disability and loss of earning capacity? (2) What is the age of the applicant at the time of accident? (3) What were the wages paid to the applicant at the time of the accident? (4) What is the loss of earning capacity suffered and permanent disability percentage faced by the injured applicant? (5) What is the quantum of compensation payable to the applicant? (6) Who are liable to pay the compensation to the applicant? 6 6. During the course of inquiry before the Commissioner, on behalf of the applicant, AWs.1 and 2 were examined and Exs.A1 to A7 were marked. On behalf of the respondents, none were examined and no document was marked. 7. The Commissioner, on examining the oral as well as documentary evidence, and on hearing both sides, vide Order dated 27.04.2012, answered the issues in favour of the applicant and against the respondents, and awarded a sum of Rs.3,83,520/- towards compensation besides stamp duty of Rs.1,000/- by means of Demand Draft in favour of the Commissioner for Workmen’s Compensation and Joint Commissioner for Labour, Kurnool, drawn on State Bank of India, Kurnool, within 30 days from the date of receipt of the order. It was further ordered that if the respondents fail to deposit the awarded amount within the stipulated time, they have to pay the interest at 12% per annum from the date of accident till realization and also penalty under Section 4-A, 3 (b) of the Workmen’s Compensation Act, 1923. The applicant was directed to make representation to the Commissioner for the Workmen’s Compensation and Joint Commissioner of Labour, Kurnool for release of compensation amount deposited by the respondents. Felt aggrieved of the said Order, respondent No.2/Insurance Company filed the present C.M.A. 7 8. Now, in deciding the present C.M.A., the point for determination is whether the Order, dated 27.04.2012, in W.C.No.62 of 2009 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Kadapa, in awarding the compensation of Rs.3,83,520/-, is sustainable under law and facts and whether there are any grounds to interfere with the same? 9. This Court, while admitting the present Miscellaneous Appeal, on 07.03.2013 passed interim order in C.M.A.M.P. No.487 of 2013 directing not to disburse the amount as ordered by the Commissioner in its Order dated 27.04.2011. Aggrieved of the said Order, the applicant filed C.M.A.M.P.No.1882 of 2013 seeking the Court to vacate the Order, dated 07.03.2013. This Court vide Order dated 31.10.2013 passed in C.M.A.M.P.No.1882 of 2013 permitted the applicant to withdraw 50% of the amount deposited by 1st respondent apart from 50% of the interest component and penalty as directed by the Commissioner along with costs of Rs.1,000/- as awarded by the Commissioner, without furnishing any security. Aggrieved of the said Order, the respondent No.2/ Insurance Company preferred the present CMA. 10. Sri V.Raghu, learned counsel for the appellant herein/ Insurance Company would contend that the Commissioner granted 8 interest at 12% per annum from the date of petition to till the date of award, which is not in accordance with sub-section (2) of Section 4- A of the Act, 1923. Learned counsel further contends that the Commissioner did not consider the aspect that the applicant sustained only 40% physical disability and the loss of earning capacity shall be equivalent to the percentage of disability, therefore, the extent of disability should have been determined only to 40% but not 100%. Learned counsel would further contend that except issuing the Disability Certificate, the Doctor, who was examined as AW.2, had not provided treatment to the applicant, therefore, his evidence cannot be taken into consideration to adjudicate the percentage of disability of the applicant. The compensation awarded by the Tribunal is excessive and the Insurance Company is not liable to pay the same. 11. On the other hand, it is contention of learned counsel for respondent No.1/applicant that the Commissioner rightly appreciated the evidence on record and recorded proper findings with regard to his employment under respondent No.2/owner of the lorry and also with regard to the effect on future income of the applicant subsequent to the accident. Learned counsel would further contend that the Commissioner rightly fixed the minimum wage of the applicant at Rs.4,000/- as per G.O.Ms.No.90 LET & F (Lab.II) 9 Dept., dated 28.09.2007 and G.O.Ms.No.81, Labour, Employment, Training & Factories (Lab-II) dated 02.2.2020 and computed the quantum of compensation at Rs.3,83,520/- and they are on correct lines and there are no grounds to interfere with the impugned Award. Hence, prays to dismiss the C.M.A. 12. The contention raised in this appeal as to what is the actual date for accrual of interest on the compensation arrived at under the Act, 1923, whether it falls due after thirty days from the date of accident or only after thirty days from the date of determination/adjudication of the compensation/claim, is no longer res integra. A Larger Bench of the Hon’ble Apex Court in Pratap Narain Singh Deo v. Srinivas Sabata and another1 held that the employer became liable to pay the compensation as soon as the personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. In the light of the well settled legal position, it is made clear that the interest on the compensation amount would accrue thirty days after the date of accident and not from the date of orders. In the appeal on hand also, the Commissioner directed respondent Nos.1 and 2 to deposit the compensation within 30 days from the date of receipt of the order and if they fail so, they were directed to pay interest at 1 (1976) 1 SCC 289. 10 12% per annum from the date of accident till realization and also penalty under Section 4-A, 3 (b) of the Workmen’s Compensation Act, 1923. Therefore, the interest at 12% per annum from the date of accident till realization as ordered by the Commissioner holds good. 13. The learned counsel for the appellant/Insurance Company raised a question that the Doctor, who assessed the disability of the applicant, except issuing the Disability Certificate, did not provide treatment to him and further, the loss of earning capacity shall be equivalent to the percentage of disability as assessed by the Doctor. Therefore, the quantum of compensation fixed by the Commissioner is improper, excessive and not in consonance with the provisions of the Act, 1923. 14. The issues were adjudicated by the Commissioner with reference to the documents and evidence produced by the applicant. The factum regarding the accident was established and the accident occurred during the course of employment. As per the evidence of applicant as A.W1, he was on duty on 25.02.2009, and he drove the lorry bearing registration No.AP04 V 2445, belongs to respondent No.1, which was loaded with parcel material. It is his evidence that while the lorry was going to Kadapa and when it reached near Lakshminarayanapur Chowrastha, due to the rash 11 and negligent driving of the Driver of the opposite coming lorry bearing registration No.AP29 X 8447, the lorry met with an accident; as a result, the applicant sustained fracture injuries to his both legs. 15. It is the evidence of applicant as A.W1 that he was admitted in RIMS Hospital, Kadapa and underwent treatment for 20 days and in spite of best treatment, the injuries could not be cured and he sustained permanent disability. According to the evidence of A.W2, Dr. Challa Sanjeevaiah, who is an Orthopaedic Surgeon, he deposed in his evidence before the Commissioner that, the applicant sustained united fracture of shaft of right tibia and due to the said injury the movements of right knee were restricted and due to that, there would be difficulty to stand on the affected limb, difficulty to squat and to sit with crossed leg position. 16. A perusal of the evidence of A.W2, Doctor coupled with Ex.A4, Disability Certificate, goes to show that the applicant, being the Lorry Driver, working under the employment of respondent No.1, sustained fracture injury and due to such fracture injury, it is difficult for him to drive the lorry and he is completely prevented from doing his driving work. Therefore, though the disability of applicant was assessed by A.W2 at 40% under Ex.A4, fixing compensation on the basis of loss of 100% earning capacity, holds good, for the reason that, the disability sustained by the applicant effects on the future 12 income, as he became unfit for the profession of Driver, which he was able to perform prior to the accident. Undoubtedly, A.W2 did not provide treatment to the applicant but, he being an Orthopaedic Surgeon, is competent to assess the disability sustained by the applicant. 17. Coming to the quantum of compensation, though the applicant claims that he was earning Rs.6,000/- per month, as per the minimum wages fixed to the Lorry Driver as per the G.O.Ms.No.90, LET & F (Lab.II) Dept., dated 28.09.2007 and G.O.Ms.No.81, Labour, Employment, Training & Factories (Lab-II), dated 02.12.2000, limited the wage of the applicant at Rs.4,000/-. Therefore, in the circumstances of the case, the Commissioner rightly assessed the income of the applicant at Rs.4,000/- per month and fixed the quantum of compensation at Rs.3,83,520/-. Admittedly, the applicant is working under the employment of respondent No.1. There is no dispute that the vehicle, which was driven by the applicant on the date of accident, was insured with respondent No.2/Insurance Company. As the vehicle was duly insured with the respondent No.2, the Commissioner rightly fixed the liability on respondent Nos.1 and 2, jointly and severally to pay the compensation. 13 18. In the light of the above, this Court does not find any reasons to interfere with the Order, dated 27.04.2011, in W.C.No.62 of 2009 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Kadapa, needs no interference. 19. Accordingly, the Civil Miscellaneous Appeal No.940 of 2013 is dismissed, confirming the Order dated 27.04.2011 passed in W.C.No.61 of 2009 by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Kadapa. There shall be no order as to costs. Consequently, miscellaneous applications pending, if any, in the CMA, shall stand closed. __________________________ JUSTICE K.SREENIVASA REDDY 2nd February, 2026 DNB