BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 11/12/2008 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A.(MD)No.494 of 2008 and M.P.(MD) No.1 of 2008 The Branch Manager, The New India Assurance Co., Ltd., 66, W.B. Road, Trichirappalli. ...Appellant/2nd Opposite Party Vs 1.Saravanan alias Vathiyalingam ... 1st Respondent/Petitioner 2.Mrs.R.Meera ... 2nd Respondent/ 1st Opposite Party Prayer Appeal filed under Section 30 of the Workmen Compensation Act, 1923, against the award dated 30.01.2008, passed in W.C.No.244 of 2006 by the Commissioner for Workmen's Compensation (Deputy Commissioner for Labour), Trichy. !For Appellant ... Mr.K.Murugesan ^For 1st Respondent ... Mr.Veerakathiravan For 2nd Respondent ... No appearance * * * * * :JUDGMENT
This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 30.01.2008, passed in W.C.No.244 of 2006 by the Commissioner for
Workmen’s Compensation (Deputy Commissioner for Labour), Trichy.
2. Before the Commissioner for Workmen’s Compensation the appellant is the
2nd opposite party, 1st respondent is the applicant and the 2nd respondent is
the opposite party.
3. The brief case of the applicant is as follows:
On 27.08.2005 at about 24.00 hours, the petitioner/workman was working as a
cleaner/loadman under the first opposite party in his MINIDOOR Load Auto bearing
registration number TN-48-E-2638. When the said vehicle was coming from Karur to
Musiri after loaded the goods, with driver Kumaravelu along with another person
viz. Vadivelu and when the said vehicle was nearing Kulithalai-Musiri Kaveri
Bridge Fourteenth Kattai, the said vehicle suddenly dashed behind the lorry
which was parked on the road. In that impact the petitioner sustained grievous
injuries. Kulithalai Police has registered a case in Cr.No.588 of 2005 regarding
the said accident. The said lorry was insured with the 2nd opposite party. The
petitioner was aged 25 years and was earning a sum of Rs.5,000/- per month at
the time of accident. Due to the accident, he lost his income. So, he filed
application claiming a compensation of Rs.5,00,000/- before the Commissioner for
Workmen’s Compensation.
4. The 2nd opposite party insurance company filed counter wherein it was
contended that the 1st respondent’s vehicle was not insured with the respondent
on the date of the alleged accident; 1st respondent’s driver had no valid
effective driving licence to drive the vehicle; the age, income, avocation and
other particulars stated in the petition are all specifically denied; the amount
claimed is excessive, unfair and there is no basis; and hence, the application
is liable to be dismissed.
5. Before the Commissioner for Workmen’s Compensation, on the side of the
applicant, applicant examined himself as P.W.1 along with P.W.2, the doctor and
marked Exs.P.1 to P.8 and on the side of the 2nd opposite party R.W.1 was
examined Ex.R1 was marked. There was no oral or documentary evidence adduced on
the side of the 1st opposite party.
6. On consideration of the evidence on both sides, the Commissioner for
Workmen’s Compensation fixed the compensation at Rs.1,19,762/- (Rupees One Lakh
Nineteen Thousand Seven Hundred and Sixty Two only) to be payable within 30 days
from the date of receipt of the order, in default to pay interest at the rate of
12% from the date of petition to till date of payment.
7. Challenging the said award passed by the Commissioner for Workmen’s
Compensation, this appeal has been filed.
8. In the memorandum of appeal the following substantial questions of law
were raised by the appellant:
“(a) Whether the Commissioner for Workmen’s Compensation is right in
holding that the 1st respondent herein was a workman under the 2nd respondent
herein as per the provisions of the workmen’s compensation Act 1923?
(b) Whether the Commissioner for workmen’s compensation is right in
holding the the 1st respondent herein sustained injuries on account of the
employment of cleaner/loadman in the course of his employment under the 2nd
respondent therein?
(c) Whether the Commissioner for workmen’s compensation is right in
holding that when there is a violation of policy condition by the insured, the
insurer is liable to indemnify him?
(d) Whether the Commissioner for workmen’s compensation is right in
passing the award against the appellant alone without passing the award against
it’s insured?
(e) Whether the Commissioner is justified in awarding 12% interest
against the insurer when there is no contract for the payment of interest
between the insurer and the insured?”
9. Point: The learned counsel for the appellant would submit that there is
no employee-employer relationship between the 1st and 2nd respondents herein.
The first respondent claimed that he is a load man under the 2nd respondent
herein. The vehicle of the 2nd respondent was insured with the appellant. On
behalf of the appellant witness Kannan was examined. He admitted that premium
was paid for 2 loadmen. The claimant claimed that he was travelling in the
vehicle as a load man. The owner of the vehicle has not chosen to examine
herself before the Commissioner for Workmen’s Compensation. The evidence of
R.W.1 is unable to shatter the case of the applicant. So, the evidence of the
applicant is acceptable. Hence, this Court is of the considered view that the
applicant travelled in the vehicle as a loadman and there is employer-employee
relationship between the 1st and 2nd respondents herein.
10. The learned counsel for the appellant relied on the decision of this
Court in P.Rengasamy v. A.Amalraj (Mad) reported in 2002 Factories Journal
Reports 936 and argued that the learned Commissioner for Workmen’s Compensation
applied the factor in this case, which is applicable only in cases of permanent
disability or death. The perusal of the record would show that P.W.2
Dr.Muralitharan spoke about the permanent disability of the victim, but he has
not spoke about the loss of earning capacity. As per the decisions of the
Honourable Supreme Court in National Insurance Co. Ltd. v. Mubasir Ahmed ((2007)
2 Suprement Court Case 349) and the Full Bench of the Kerala High Court in New
India Assurance Co. Ltd., v. Sreedharan (1995 ACJ 373) the loss of earning
capacity must be said by the doctor. In this case, though the doctor deposed
about the permanent disability he has not spoken about the loss of earning
capacity of the victim. In the light of the above decisions this Court is of
the considered view that the loss of earning capacity must be spoken by the
Doctor and for that the matter has to be remitted to the Commissioner for
Workmen’s Compensation.
11. Accordingly, this Civil Miscellaneous Appeal is allowed setting aside
the award of the Commissioner for Workmen’s Compensation and the matter is
remitted to the Commissioner for Workmen’s Compensation (Deputy Commissioner
for Labour), Trichirapalli, for re-assessing the loss of earning capacity. The
Commissioner shall give opportunity to both parties to examine the Doctor, who
will speak about the loss of earning capacity and thereafter assess the loss of
earning capacity on the basis of the doctor’s evidence and dispose of the matter
as per law. No costs. Consequently, connected M.P.(MD) No.1 of 2008 is closed.
sj
To:
The Commissioner for Workmen’s Compensation,
(Deputy Commissioner for Labour)
Tiruchirappalli.