Shaik Azeem @ Azeem v. 1. Sri Shaik Saleem

Counsel for the Appellant: Sri. T. Srujan Kumar Reddy for Sri Lakkadi Dayaker ReddY Counsel for the Respondent No.2: SRI K.S.N.Murthy Counsel for the Respondent No.1: None appeared The Court made the following: JUDGMENT n THEHoN'BLEsRIJUSTICENARSINGRAoNANDIKoNDA C.M.A.No.7O of 2O14 JUDGMENTl The present appeal is filed by the claimant under Section 3o of w.c.Act against the order passed by the commissioner for workmen's compensatic,n and Deputy commissioner of Labour at Nizamabad' (hereinafter referred to 'learned Authority') in W'C'No'28 of 2003' dated 18.08.201O. The claimant/petitioner had fiIed a claim petition against the orvner and insurer of the truck with number MH-2 6-F_3620 under the provisions of the workmen's compensation Act, 1923, hereinafter referred to as "the Act," seeking Rs.5,00,000 in compensation for the injuries sustained by him during the course of employment'

2. The brief facts of the case are that on 09.03'2001, the claimant ,nvas dischar:ging the duties as d.river on the lorry bearing No'MH26-B- 3620 under the instruction of employer i.e., respondent No'1 herein and while drivirrg the said lqrry when the claimant reached' near Varni bus stancl, he crukl not control the lorry due two *fti"tt it turned turtle and fell into the: ditch culminating into the accident resulting in injuries to claimant a:ed. to the cleaner. The claimant sustained fracture of left hancl, fracture of right leg, fracture of ribs and multiple and grievous 2 NJW,J C.M.A.No.7O ol 2014 injuries to skull and other parts of the body. Immediately, the claimant was shifted to Government Hospital, Nizamabad. Therefore, the claimant was under treatment under private doctors. The Police registered a case in Crime No.27 of 2001 against the driver of offending vehicle for the offence under Section 337 of IPC and laid the charge- sheet for the offence under Section 338 of IPC.

3. The contention of the claimant before the learned Authority was that, prior to the accident the claimant was earning Rs.6,OO0/- per month by driving lorry besides getting Rs.1OO/- per day batta, due to the accident, claimant suffered fractures and injuries and he became perrna.nently disability and is unable to walk freely either on road, climb ladd.er or able to lift heavy articles and also the claimant was removed from employment. The claimant incurred huge expenditure in the hospital for the treatment and claimed an amount of Rs.5,00,000/- under various heads as compensation for the said accident.

4. Before the learned Authority, the respondent No.l filed written statement and denied. the age and earning as stated by the claimant and averred that the claimant was being paid Rs.4,OOO /- per month and batta Rs.1OO/- per day as driver on his lorry bearing No.MH-26-B-362O which was insured by respondent No.2, therefore the respondent No.2 is L=- \ i \ n 3 AIAIR,J C.M.A.No.7O of 2014 liable to pay compensation, if any and prayed to dismiss the claim petition against respondent No. 1.

5. The respondent No.2 - Insurance Company Limited, filed written statement d,:nying the averments made in the claim petition, including the manner in'*,hich the accident took place, age, avocation and income of the claimzmt and submitted that the driver of the offending Lorry was not holding valid driving licence at the time of accident and further contended that the compensation claimed is excessive and prayed to dismiss the r:laim petition.

6. Basing on the pleadings and averments made by both the counsels, the learned learned Authority framed the following points for consideratio.e: i) Whether the applicant Shaik Azeem met withthe accident on 9-3-2001 at abou;' 4 p.m. during the course qnd out of his employment as driuer on the lorry bearing No-MH-26-B-3620 and in the emplogment of oppostte parl No.1 he sustained injuries in the acadnet? ti) If yes, what is the percentage of phgsical disability and consequent loss of earning capacitg suffered by the applicant? iti) Who zre liable to pay compensation to the appticant? And iu) What is tlrc amount of compensation entitled bg the applicant? 4 IVI\IR,J C.M.A.No.7O of 2014

7. After perusing the oral and documentary evidence and going into the entire record placed by both the parties, the learned Authority granted Rs.Ir39r 842/- to the claimant.

8. Being aggrieved and unsatisfied by the order of the learned Authority, the present appeal is frled on the ground that the learned Authority did not consider the evidence in the proper way and taken the income of the appellant at Rs.3,O7O/- per month which is meager and the learned Authority has not awarded any interest on the compensation amount and learned Authority ought to have awarded interest @ 18 o/o or:r the compensation amount from the date of accident till the date of realization.

9. .Learned counsel for the claimant submits that prior to the occurrence of the accident, the claimant was hale and healthy aged about 22 years, and used to earn Rs.6,000 /- pet month by driving lorry and contribute the salne for the welfare of his family. Due to the accident claimant has sustained fracture of metal carpal bone and fracture of 5ft and 6fr ribs right side and also head injury. Thereafter, the AW2-Dr.T.Narsing Rao, issued disability certificate to the claimant showing 4oo/o disability, which was marked as Ex.A3, however, the *- learned Authority has taken the 35% disability for assessing of loss of 5 AII\IR,J C.M.A.I,[o.7O oti 2014 earning anc. not awarded jgst compensation to the claimant' hence prayed this Court to allow the appeal and enhance the compensation arnou.nt.

10. Learne'd counsel for the respondent No.2 submits that after considering the entire evidence available on record, the learned Authority hers awarded just compensation, which needs no interference. 1I. Heard Sri ?.S. Kumar Reddg, learned counsel representing Sri L.Dayakar Reddy, learned counsel for the appellant and sri K.S.N.Mufthg,learned counsel for the respondent No.2' None appeared for respondt:nt No. 1. Perused the material on record.

12. The p<lints which arose for consideration and substantial question of law before this Court in this appeal are that: i) Whet.her the ord.er of the Commissioner is correct tn assessing the income, of the appellant as Rs.3,O7O/- per month. ii) WLuzther the ord.er of the Commissioner is sustainable in not autard.ing the interest at the rate of 18o/o p.a. from the date of accident. Point No.1 &' 2z

13. Admittediy the accident took place on 09.03.2001, while the claimant was discharging his duties on lorry bearing No.MH-26-B-362O under the t:mployment and sustained. fracture of left hand, fracture of \-_ I : 1, i i I 6 t, AI IR,J C.M.A.No.7O of 2O14 right leg, fracture of ribs and multiple and grievous injuries to skull and other parts of his body. On account of fracture injuries, the claimant becarne permanently disabled and was removed from his employment as he could not drive the vehicle further. AW.2-Dr.T.Narsing RAO, the Ortho Surgeon, in Government Quarters Hospital, Nizamabad, deposed that while examining the injuries of claimant, he found fracture of lst meta carpal bone of left hand and lacerated wound on head and fractures of 5th and 6tt' ribs left and he was treatment the claimant upto

29.O3.2O01 and issued Ex.A3 - Disability Certificate after assessing the perrnanent disability @ 4Oo/o. [n the Cross examination, the AW.2 has stated that he is neither the member of the medical board or the Competent Authority to issue the said disability certificate to the claimant. Therefore, the learned Authority considering the injuries, fractures of the claimant has taken the functional disability @ 35% which appears to be reasonable and needs no interference.

14. As far as monthly income of the claimant is concerned, the learned Authority has taken the income of the claimant Rs. 3O70 l- per month (Basic 2587 + DA 483), however the learned Authority missed the sight of adding batta to the notional income of the claimant, hence this Court is inclined to add Rs.50/- per day as batta to the income of the 7 AII\R,J C.frI.A.Itb.7O olt 2074 claimant, a(:cordingly, the monthly income of the claimant is enhanced from Rs.307Ol- to Rs.457O/- (3070 + 1500 {5Ox30}).

15. The learned Authority has taken the age of the claimant as 25 years by co:esiclering the claimant's driving licence, which was marked as Ex.A6, hence the contention of the claimant that the claimant was aged about t22 years at the time of the accident cannot be accepted and accordingly rejected

16. As far as interest portion is concerned, the learned Authority ought to have grant reasonable interest on the compensation amoLlnt, however the learned Authority missed the relevant legal position while not granting interest to the claimant. Accordingly, this Court is inclined \ to gr.ant interest @ 7.5o/o on the compensation amount i.e., Rs.1,39,842 /- granted by learned Authority. Accordingly, point No.1 and 2 is answered in favour of claimant and against the respondents.

17. Considering the above assessment made by this Court, appellant would be ent:itled for enhanced compensation are as follows: Rs.45',7O X 60/10 X 35/7OO X 276.91 = 208168.5, and the same is round of to Rs.2rO8,77O/- B (' iviw,J C.M.A.No.70 oJ 2014

18. The C.M.A is partly allowed, enhancing the compensation from Rs.1,39,8421- to Rs.2,O87,7O/- (Rupees Two Lakh Eight Thousqnd and One hundred. and. Seuentg Rupees onlg) with interest at the rate of 7.5oh p.a. from the date of petition titl the date of reaftzation. The respondents are directed to deposit the said amount together with costs and interest after giving due credit to the amount already deposited, if any, within two months from receipt of a copy of this judgment failing which it carries interest at 12o/o per annum. On such deposit, the claimant is permitted to withdraw the compensation amount without furnishing any surety. There shall be no order as to costs. Miscellaneous petitions, if any are pendlit:1"]1 _ste1a Sd/-I.NAGA LAKSHMI JOINT REGISTRAR //TRUE COPY// OFFICER To,

1. The Commissioner for Workmen's Compensatioh and Deputy Commissioner of Labour at Nizamabad

2. One CC to SRI LAKKADI DAYAKER REDDY,Advocate IOPUC] 3. One CC to SRI K.S.N.MURTHY, Advocate [OPUC] 4. Two CD Copies NVB/sa \ \ I I HIGH COURT DATED:2010812025 JUDGMEhIT CMA.No.7'0 of 2014 iI-iE s Y C) * 1 8 l'lAR ?.0?fr { t a. * PARTLY I\LLOWING THE C.M.A \^ b q/