The Management v. Sr.Arulapandy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.04.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARC.M.A.No. 910 of 2009andM.P.No.1 of 2009 The Management, Tata Coffeee Limited, Valparai Estate, Valpaprai, Taminadu- 642 127 ... Appellant/Respondent vs. Sr.Arulapandy ... Respondent/Applicant Civil Miscellaneous Appeal is filed under Section 10 of the Workmen's Compensation Act 1923 against the award and decree dated29.12.2008 passed in W.C.Case No. 79 of 2006 on the file of the Deputy commissioner of Labour, Workmen's Compensation, Coimbatore. For appellant : Mr.M.Vijayan for M/s.King & PatridgeFor respondent : .... JUDGMENTThe Managementhas filed this appeal challenging the award dated 29.12.2008 passed in W.C.Case No. 79 of 2006 on the file of the Deputy commissioner of Labour, Workmen's Compensation, Coimbatore.

The appellant is a limited company engaged in the business of growing coffee in the hilly tract. The respondent https://hcservices.ecourts.gov.in/hcservices/ workman in this case is in employment of the appellant and that is not disputed. On 14.3.2006, while the respondent workman was picking pepper by climbing a tree, he fell down and suffered injuries. Hewas treated at the estate hospital and thereafter at Sindhia OrthoClinic at Pollachi. He was under medical management from 16.3.2006to 2.4.2006.According to the respondent/ claimant, he suffered fracture of the right arm and injuries to other parts of the body. He filed a claim for compensation in terms of the provisions of the Workmen's Compensation Act. He claimed a sum of Rs. 2,36,020/- as compensation. The claim was resisted by the management.

In support of the claim, the claimant was examined asP.W.1 and the Dr.Senthil Kumar was examined as P.W.2. DocumentsExs.P1 to P5 were marked. Ex.P4 is the disability certificate assessing the loss of earning capacity at 30.78%. On behalf of theappellant/ management one Dr. Eswaramoorthy was examined as R.W.1.No document was filed on behalf of the appellant/ management before the Commissioner.

The Doctor-R.W.1, who was examined on behalf of theappellant/ Management stated that the loss of earning capacity assessed at 30.78% is excessive and the actual disability if at all would be 8%. The Tribunal rejected the evidence of R.W.1, Doctor, who was examined by the management and accepted the evidence ofP.W.2-Doctor, who was examined on behalf of the claimant. Theevidence of P.W.2 is supported by the medical record which have already been marked as Ex.P4. Since the injuries are non schedule injuries, the testimony of the Doctor was taken for the purpose of determining the loss of earning capacity and based on the evidence of the Doctor, who treated the claimant and assessed the loss of earning capacity, the compensation was determined in terms of Section4(1)(c)(ii) of the Workmen's Compensation Act in a sum of Rs.70,806/-together with interest applicable.

In appeal, it is contended that the Tribunal erred in rejecting the evidence of R.W.1, who opined that the loss of earning capacity would be only 8% and not 30.78%. Except the oral evidence of R.W.1, there is no material to controvert the evidence of the Doctor-P.W.2, who treated the injured claimant and assessed the loss of earning capacity. Since the evidence of R.W.1 is not supported by documents, the evidence of the Doctor, who treated the injured claimant has to be accepted and the Tribunal has rightly relied upon the same.

In this view of the matter, this Court is unable to find any good ground to entertain this appeal on merits. In any event, no substantial question of law arises for consideration as the issue is purely questions of fact.

Finding no merits, this civil miscellaneous appeal is https://hcservices.ecourts.gov.in/hcservices/ dismissed. Consequently, M.P.No. 1 of 2009 is also dismissed. Nocosts.raSd/Asst. Registrar/true copy/Sub Asst. RegistrarToThe Deputy commissioner of Labour, Workmen's Compensation, Coimbatore.1 CC To M/s.King & Patridge, Advocate, SR NO.11337 CMA No 910 of 2009rsm(co)pmk.18.4.2009