{"id":195126,"date":"2008-10-21T00:00:00","date_gmt":"2008-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-rathinasabapathi-alias-on-21-october-2008"},"modified":"2017-11-27T16:54:23","modified_gmt":"2017-11-27T11:24:23","slug":"the-branch-manager-vs-rathinasabapathi-alias-on-21-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-rathinasabapathi-alias-on-21-october-2008","title":{"rendered":"The Branch Manager vs Rathinasabapathi Alias … on 21 October, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
The Branch Manager vs Rathinasabapathi Alias … on 21 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:21\/10\/2008\n\nCORAM\nTHE HONOURABLE Mr. JUSTICE M.VENUGOPAL\n\nC.M.A.(MD)No.388 of 2004\nand\nC.M.P.No.2783 of 2004\n\nThe Branch Manager,\nOriental Insurance Company Ltd.,555\/1, G.H. Road,\nTheni.\t  \t\t\t\t...Appellant\/2nd Respondent\n\nVs\n\n1.Rathinasabapathi alias Sabapathi,\n2.M.R.Ganesh\n  (The 2nd respondent herein is\n  set exparte in the lower Court)\t...Respondents\/Petitioner 1st respondent\t\n\t\t\t\t\t\nPrayer\n\nAppeal filed under Section 30 of the Workmen's Compensation Act, against\nthe order dated 14.10.2004 passed in W.C.No.131 of 2003 on the file of\nCommissioner for Workmen's Compensation, Dindigul (Deputy Commissioner of\nLabour), Dindigul.\n\n!For Appellant\t  \t...Mr.K.Bhaskaran\n^For 1st Respondent\t...Mrs.Vijayakumari Natarajan\nFor 2nd Respondent\t...No appearance\n\n:JUDGMENT\n<\/pre>\n
\tThis Civil Miscellaneous Appeal is filed by the appellant\/second
\nrespondent\/Oriental Insurance Company Limited dissatisfied with the award dated
\n14.10.2004 passed in W.C.No.131 of 2003 by the Workmen’s Compensation
\nCommissioner (Deputy Commissioner)\/Tribunal, Dindigul.\n<\/p>\n
\t2.The Workmen’s Compensation Commissioner (Deputy Commissioner)\/Tribunal,
\nDindigul, on an appreciation of oral and documentary evidence, has passed an
\naward on 14.10.2004 awarding a sum of Rs.1,95,348\/- (Rupees one lakh ninety five
\nthousand three hundred and forty eight only) as compensation along with interest
\nat 12% per annum from the date of accident till date of payment and has directed
\nthe appellant\/second respondent to deposit the same within 30 days from the date
\nof receipt of the copy of the award.\n<\/p>\n
\t3.The short necessary facts of the claim are as follows:\n<\/p>\n
\tThe first respondent\/petitioner was employed as driver under the second
\nrespondent\/first respondent. On 13.04.2003 at about 07.00 hours, he was driving
\nthe lorry TN-07-V-1612, belonging to the second respondent from Theni and
\nTummakundu, on the Usilampatti-Madurai Main Road and near P.M.T. College one
\nvehicle came in front of his vehicle and in order to avoid collision, he
\nsuddenly applied the break of his vehicle and as a result thereof, the vehicle
\ngot capsized towards the left side and dashed against the road side standing
\nneem tree. Because of the accident, he sustained grievous injuries over his left
\nleg and left hand and abrasion all over the body. The accident took place when
\nhe was in regular course of employment and service with the second
\nrespondent\/first respondent. The Usilampatti Nagar Police have registered a
\ncriminal case in F.I.R.No.115 of 2003 under Section 279 and 337 of IPC, on being
\ninformed about the accident. He was immediately taken to Government Hospital,
\nMadurai where he remained as an inpatient from 13.04.2003 to 17.04.2003. The
\naccident was intimated to the second respondent\/first respondent. At the time of
\naccident, the first respondent\/petitioner was aged about 30 years and he was
\ngetting a total amount of Rs.4,000\/- per month as wages and Rs.50\/- as Batta per
\nday from the second respondent. The first respondent\/petitioner was not able to
\nperform his duty as a driver. The second respondent\/first respondent has insured
\nhis vehicle with the appellant\/second respondent. Hence, both are jointly and
\nseverally liable to pay a sum of Rs.5,00,000\/- as compensation with interest.
\n\tThe second respondent\/first respondent (owner of the lorry TN-07-V-1612)
\nhas remained exparte before the Tribunal.\n<\/p>\n
\tThe appellant\/second respondent Insurance Company has filed a counter
\ninter alia taking the pleas that the first respondent\/petitioner was not acting
\nas a driver and that he was not employed by the second respondent\/first
\nrespondent to drive the lorry at the time of accident and that the first
\nrespondent\/petitioner is bound to prove his employment under second respondent
\nwith necessary documents such as wage register and trip sheet at the time of
\naccident and that the first respondent\/ petitioner is not having any disability
\nto drive the vehicle and from the investigation it transpires that the first
\nrespondent\/petitioner even now drives the lorry as usual and the amount claimed
\nis not according to the Workmen’s Compensation Act and that the injury has not
\nbeen a grievous one and the same is simple.\n<\/p>\n
\t4.Before the Workmen’s Compensation Commissioner\/ Tribunal, Dindigul, on
\nthe side of first respondent\/ petitioner witnesses P.W.1 and P.W.2 were examined
\nand Exs.P.1 to P.8 were marked and on the side of appellant\/ second respondent,
\nno witness was examined and no documents were marked.\n<\/p>\n
\t5.The following substantial questions of law that arise for consideration
\nin this Civil Miscellaneous Appeal are:\n<\/p>\n
\t(1)Whether an action under the Workmen’s Compensation Act can be properly
\nfound without establishing that the injury sustained was in the course of his
\nemployment with the second respondent, when the first respondent\/petitioner has
\nnot produced any documentary evidence to that effect?\n<\/p>\n
\t(2)Whether the first respondent\/petitioner is entitled to any compensation
\nunder the Workmen’s Compensation Act in the absence of any proof that he was a
\nworkman under the second respondent?\n<\/p>\n
\t(3)Whether the Workmen’s Compensation Commissioner\/ Tribunal has erred in
\ncoming to the conclusion that the first respondent\/petitioner has sustained loss
\nof earning power contrary to the provisions of 4(i)(c)(ii) of the Workmen’s
\nCompensation Act, 1923?\n<\/p>\n
\t(4)Whether the Tribunal has erred in not seeking the assistance by
\nresorting to the Section 20(3) of the Workmen’s Compensation Act in regard to
\nthe loss of earning power?\t\t(5)Whether the Tribunal is correct in
\nholding that the appellant\/second respondent Insurance Company is liable to pay
\nthe compensation awarded relying upon the evidence of P.W.2, who has not
\nproperly assessed the disability sustained due to the injuries?\n<\/p>\n
\t6.Heard the learned counsel for the appellant and the first
\nrespondent\/claimant and this Court noticed their respective contentions.\n<\/p>\n
\t7.Finding on the substantial questions of law No.1    and 2:\n<\/p>\n
\tAccording to the learned counsel for the appellant\/ second respondent
\nInsurance Company, the Commissioner\/ Tribunal has erred in coming to the
\nconclusion that the first respondent\/petitioner sustained injuries in an
\naccident which arose out of and in the course of his employment under the second
\nrespondent on 13.04.2003 and further that the Tribunal has failed to notice that
\nthe first respondent\/petitioner has not proved that he has been working as a
\ndriver under the second respondent in lorry bearing Registration No.TN-07-V-1612
\non the date of alleged accident and moreover, the tribunal has come to the
\nconclusion that the first respondent\/petitioner sustained injuries during the
\ncourse of his employment with the second respondent, without any basis and
\ntherefore, prays for allowing the appeal in the interest of justice.\n<\/p>\n
\t8.P.W.1, the first respondent\/petitioner in his evidence has deposed that
\nhe has been employed as a lorry driver with the second respondent and that the
\naccident has taken place opposite to P.M.T. College and when he drove the lorry
\nTN-07-V-1612 from Theni to Tummakundu carrying husk, he applied sudden breaks in
\norder not to dash against the lorry which was coming on the opposite side and
\ntherefore, the accident has occurred, as a result of which his lorry’s side
\nmirror was broken and he sustained grievous injury on his leg toe and further
\nthat he sustained abrasion injury on his left hand and that immediately after
\nthe accident, he was admitted into the Usilai Government Hospital and on the
\nsame day he has been admitted into the Government Rajaji Hospital where he
\nremained as an inpatient for a week and received treatment and later for further
\ntreatment he has been admitted into the Theni Government Hospital as an
\ninpatient for one month and received treatment and again on examination at the
\nMadurai Government Rajaji Hospital he has come to know that his nerve in the leg
\nhas been cut and for correcting the same he has been advised to undergo a
\nsurgery and again he has been admitted as an inpatient for 15 days etc.<\/p>\n
\t9.P.W.1, the first respondent\/claimant in his further evidence (in cross
\nexamination) has categorically admitted that he has not produced any document to
\nshow that he has been employed with the second respondent and further that he
\nhas not produced any proof to show about the receipt of salary. At this stage,
\nit is not out of place to point out that P.W.1, the first respondent\/petitioner
\nin his evidence has specifically stated that it is not correct to state that he
\nhas not been employed under the second respondent. As a matter of fact, P.W.1,
\nthe first respondent\/petitioner has deposed in his cross examination that it is
\nnot correct to state that Kasimayan is the real driver. It is significant to
\npoint out that in Ex.P.1-Xerox copy of FIR the name of the informant is
\nmentioned as Kasimayan. The accused name is mentioned as Rathinasabapathi, lorry
\ndriver bearing Registration No.TN-07-V-1612 (who is none other than the first
\nrespondent\/petitioner in the claim petition before the Tribunal). A perusal of
\nEx.P.1-FIR do indicate clearly that the informant Kasimayan has been serving as
\ndriver of the lorry bearing No.TN-07-V-1612, under M.R.Ganesh (second respondent
\nin appeal) for the past six months and with him N.Rathinasabapathi and
\nMuthupandi are working as Assistant Driver and Cleaner respectively and that on
\n13.04.2003 at about 7’0 clock in the morning from Theni to Tummakundu the lorry
\nwas driven with husk loaded by Rathinasabapathi. He along with cleaner were
\nsitting in the cabin and when the lorry came in the Usilampatti Main Road near
\nopposite to P.M.T. College, the driver Rathinasabapathi in order to give way to
\nthe vehicle which was coming in the opposite direction drove negligently to
\navoid collision and while doing so lost its balance and got capsized and dragged
\nto the left side of the road and the lorry dashed against the neem tree, as a
\nresult of which the driver Rathinasabapathi has suffered serious injury on his
\nleft leg toe and was unconscious and taken by him and Muthupandi in an auto and
\ngot admitted into the Usilampatti Government Hospital. Indeed, as seen from
\nEx.P.1-FIR, the Usilampatti Town Police have registered a criminal case in Crime
\nNo.115 of 2003 under Section 279 and 377 of IPC. From Ex.P.4-Driving license of
\nfirst respondent\/petitioner, it is quite evident that the first respondent has
\nbeen authorised to drive transport vehicle and that the said license is valid
\nupto 24.06.2004. The first respondent\/petitioner has been licensed to drive
\n(1)LMV-25\/10\/1989\/TN\/60; (2) HPV-17\/5\/ 1995\/TN\/60; (3)HGV-17\/5\/1995\/TN\/60.\n<\/p>\n
\t10.It cannot be gainsaid that the term ‘workman’ is defined in Section
\n2(n) of the Act, which means any person other than a person whose employment is
\nof a causal nature and who is employed otherwise than for the purpose of
\nemployer’s trade or business. The object of the Act is to achieve social justice
\nand to provide for a speedy and easy forum for the workman and\/or his dependants
\nfor claiming compensation in lieu of accident arising out of and during the
\ncourse of employment. In real sense, to exclude a person from the scope of the
\ndefinition of workman two ingredients are to be satisfied. They are: (1)The
\nemployment of the workman is of a causal nature; and (2)He is not employed for
\nthe purposes of the employer’s trade or business. In this perspective, once it
\nis proved that the workman has been employed for the purpose of the trade or
\nbusiness of the employer, even though the employment be of a causal nature, the
\nworkman will come within the definition of workman, provided, however, other
\nrequisite conditions are also satisfied. At this stage, this Court points out
\nthat in the decision Mammed V. Gopalan 1995 Lab. I.C. 2767 (Ker), it is held
\nthat ‘mere casual nature of employment of the claimant on the day of accident is
\nnot sufficient to oust him out of the definition of ‘workman’. Moreover, in the
\ndecision Kamala (smt) V. Varadaraja Setty, 1998 (1) L.L.J. at page 797, it is
\nobserved that ‘non-production of attendance register by employer respondent
\nbeing in possession of that register without any reason, adverse presumption is
\ndrawn against him, thus showing that deceased was permanent employee and not a
\ncausal worker.’ Further, this Court points out that in the decision Kerala
\nBalagram V. Kochumon 1998 ACJ at page 996 (Ker.), it is inter alia observed that
\n‘where a workman was engaged for the purpose of employer’s business who had
\nsustained injuries in course of employment, then, even if employment is of
\ncausal nature, the workman is entitled to compensation.\n<\/p>\n
\t11.In short, the burden is on the individual who wants to rely on the
\nexceptions to prove that an employee is not a workman. In fact, it is for the
\nemployer to prove that the nature of employment is causal. Added further, as the
\ncompensation is paid by an employer to the workman, the onus to establish that a
\nparticular individual is not workman is on the employer, as per decision Sumitra
\nDevi V. Executive Engineer, Udar Asthan Irrigation Divison, 1997 ACJ 155 (Pat.).
\nNo wonder, from the definition of ‘workman’ as per Section 2(i)(n) of the
\nWorkmen’s Compensation Act, 1923, there must be relationship of an employer and
\nemployee before an individual can be a workman vis-a-vis his employer. Once when
\nsuch a relationship is proved, it has to be further seen to find out whether the
\nemployment of the employee is of a causal nature and that he has been employed
\nfor the purpose of employer’s trade or business. Notwithstanding the above,
\nunder the same definition in order that a person may be considered to be a
\nworkman within the meaning of the Act, he must be employed in such capacity as
\nis mentioned in any of the items included in schedule II.\n<\/p>\n
\t12.In this connection, this Court aptly points out that a driver can be a
\nworkman. But all drivers are not workmen. The extent of control of the owner on
\nthe driver is the true test in such a case to see whether the driver is a
\nworkman or not. Apart from the above, the injury sustained by a workman must be
\na physical injury on account of accident, it is necessary that the workman must
\nbe actually working at the time of injury or accident. Therefore, the three
\nfactors are: (1)There must be an injury; (2)Such injury must be caused in an
\naccident; (3)It must be caused in the course of and out of employment, must be
\nproved.\n<\/p>\n
\t13.It is quite apt to make a significant mention that the word ‘and’
\noccurring amidst the words mentioned in bracket in the definition of ‘workman’
\nclearly shows that for taking out a labourer from the category of a workman,
\nboth the conditions, i.e. that the employment is of a casual nature and, that
\nemployment is otherwise than for the purposes of the employer’s trade or
\nbusiness should be proved. In other words, both the limbs of the conditions of
\nexclusion have to be satisfied, in the considered opinion of this Court. In the
\ninstant case on hand, the second respondent\/first respondent, owner of the lorry
\nTN-07-V-1612 has not examined himself before the Commissioner\/Tribunal as a
\nwitness to rebut or discredit the evidence of the first respondent\/petitioner.
\nIndeed, the onus of establishing that the first respondent\/petitioner has been
\nexcluded from the category of workman is on the employer\/second respondent\/
\nfirst respondent and that in the present case, the same has not been discharged
\nby the second respondent\/first respondent as an employer. In fact, the first
\nrespondent\/ petitioner as P.W.1 in his evidence before the Tribunal has clearly
\nmentioned about the manner and happening of occurrence and further he has
\nsuccinctly stated that on 13.04.2003 opposite to P.M.T. College at Usilampatti,
\nthe accident has occurred when the lorry TN-07-V-1612 carrying husk driven by
\nhim from Theni to Tummakundu in order to avoid dashing against the lorry which
\nwas coming on the opposite side by applying the sudden breaks.\n<\/p>\n
\t14.At this juncture, the averment of the informant in Ex.P.1-FIR,
\nK.Kasimayan employed as driver of lorry TN-07-V-1612 (for the past six months)
\nunder the second respondent (owner of the lorry) to the effect that the first
\nrespondent\/petitioner Rathinasabapathi working as Assistant Driver and
\nMuthupandi working as Cleaner along with him prima facie prove that the first
\nrespondent\/petitioner fall in the present facts and circumstances of the case
\nwithin the category of ‘workman’, in the considered opinion of this Court.
\nNormally, the Assistant Driver of a vehicle and the Cleaner are suppose to work
\nunder the control of the owner of the vehicle and also under the supervision of
\ndriver assisting him in the manner required.\n<\/p>\n
\t15.It is to be noted that the work ‘accident’ is derived from the latin
\nverb ‘accidere’ signifying ‘fall upon’, Befall, happened, chance. In
\netymological sense ‘anything that happens may be said to be an accident.’ The
\nword ‘accident’ is not defined in the Motor Vehicles Act or the Workmen’s
\nCompensation Act, 1923. Hence, the word ‘accident’ ought to be understood in the
\npopular and ordinary sense as denoting an untoward event which is not expected
\nor designed.\n<\/p>\n
\t16.In as much as, the first respondent\/petitioner has suffered injuries
\nand sustained disability of 27% and his professional disability being 50% as
\nspoken to by P.W.2-Dr.Vijayakumaran by the accident arising out of and in the
\ncourse of his employment as Assistant Driver\/workman, this Court concludes that
\nthe injury sustained by the first respondent\/petitioner has arisen and in the
\ncourse of his employment as Assistant Driver of lorry working under the second
\nrespondent. As far as the present case is concerned, the relationship of master
\nand servant between the parties viz., the second respondent and first respondent
\nand first respondent\/petitioner has been established so as to bring the first
\nrespondent\/petitioner within the category of workman under the Workmen’s
\nCompensation Act and the very fact that informant Kasimayan in Ex.P.1 has made
\nmention of the first respondent\/petitioner and the cleaner Muthupandi go to show
\ncategorically that the relationship of the first respondent\/petitioner with the
\nsecond respondent is by way of contract of service between them, in the
\nconsidered opinion of this Court. Further, for maintaining an action under
\nWorkmen’s Compensation Act, the relationship between the parties as master and
\nservant has to be necessarily established as a precondition, besides the workman
\nto prove that the injury sustained by him has arisen out of and in the course of
\nhis employment as Assistant Driver of the lorry\/workman and in the instant case,
\nthe above requisites have been established to the satisfaction of this Court and
\ntherefore, it is held that without establishing the relationship of master and
\nservant between the parties and without establishing that the injury has been
\nsustained arising out of and in the course of ones employment the action for
\ncompensation under the Workmen’s Compensation Act cannot be founded in law and
\nthe substantial question of law 1 and 2 are answered accordingly.\n<\/p>\n
\t17.Finding on the substantial questions of law No.3 to 5:\n<\/p>\n
\tThe learned counsel for the appellant\/second respondent contends that the
\nCommissioner\/Tribunal has erred in coming to the conclusion that the first
\nrespondent\/petitioner has sustained loss of earning power contrary to the
\ningredients of Section 4(i)(c)(ii) of the Workmen’s Compensation Act and that
\nthe Tribunal\/Commissioner should have disbelieved the evidence of P.W.2-Doctor
\nin as much as no old x-ray corresponding to the fracture has been marked to
\nprove the disability and that the assessment of 27% disability by P.W.2-
\nDr.R.Vijayakumaran is without any basis and in fact, he has assessed 50%
\ndisability for mere movement restrictions and therefore, the assessment of
\ndisability sustained by the first respondent\/petitioner, done by P.W.2-
\nDr.R.Vijayakumaran is not as per medical science as per the decision State of
\nHimachalpradesh V. Jayalal and others etc. of the Hon’ble Supreme Court reported
\nin 1999 (8) Supreme 401 and as per the decision A.Mohan V. K.Gunasekaran and<\/a>
\nanother of this Court reported in 2003 (1) L.W. at page 81 and therefore, prays
\nfor interference of this Court.\n<\/p>\n
\t18.It is to be pointed out in regard to the question of entitlement of a
\nclaimant in case there is no loss of earnings and there is continuance of
\nengagement a reference to Section 4(i)(c)(ii) of the Act is quite necessary, in
\nthe considered opinion of this Court. While considering loss of earning capacity
\nin the case of a permanent partial disablement, the comparison between the
\nsalary drawn by the workman before and after the accident, from his master at
\nthe time of accident, is not a determinative factor. It is quite pertinent to
\npoint out that the legislature by Act 22 of 84 in their wisdom has amended
\nSection 4(i)(c)(ii) by inserting words “(as assessed by the qualified medical
\npractitioner)” after the words “(as is proportionate to the loss of earning
\ncapacity)” and resultantly, the Qualified Medical Practitioner is required to
\nassess not only the percentage of physical disability, but also assess the
\npercentage of loss of earning capacity based on the physical disability. Really
\nspeaking, the Workmen’s Compensation Act is a special legislation for the
\nbenefit of workmen and if any benefit is conferred on the workmen by virtue of
\namended provisions the said benefit is available on the date when the case is
\nfinally adjudicated and consequently, a claimant is to receive the benefit of
\nthe amended provisions in true letter and spirit. The construction of the
\nWorkmen’s Compensation Act must be in such a way that it does not act to the
\nprejudice of the individuals to be benefited and consequently the mandatory word
\n‘shall’ have its full effect and no discretion is left to the Commissioner to
\nreduce the same while granting the award on the basis of the claim made.\n<\/p>\n
\t19.In this connection, it is quite appropriate to point out the evidence
\nof P.W.2-Dr.Vijayakumaran who has deposed that he has examined P.W.1\/first
\nrespondent\/petitioner on 23.04.2004 to assess the disability sustained and that
\nthe P.W.1\/first respondent has took treatment for the bone fracture on the left
\nleg toe where the muscles were torn and that the movements of the left leg toe
\nwere reduced to 80% and that the disability sustained is assessed at 27% and the
\nprofessional disability sustained by P.W.1\/petitioner is assessed at 50% as per
\nEx.P.6 disability certificate. A perusal of Ex.P.6 disability certificate dated
\n21.07.2004 issued by P.W.2-Dr.Vijayakumaran shows that the P.W.1\/first
\nrespondent has difficulty in walking and his muscles are contracted at the ankle
\nlevel and bone interferes with the activities of his daily living etc. Before
\nthe Tribunal, P.W.2, Dr.Vijayakumaran has been cross examined on the side of
\nappellant\/second respondent Insurance Company. It is the responsibility of an
\nemployer to press for medical examination to a workman receiving injuries in an
\naccident. Of course, an employer cannot insist on a medical certificate from the
\nworkman. However, if he is not satisfied by the injury, then an opportunity must
\nbe provided by the employer of the workman, to get examined him examined free of
\ncharge by a medical practitioner within three days from the time when service of
\nnotice has been effected, in the considered opinion of this Court. In the
\ninstant case, the second respondent\/employer has not availed the right of
\nsubjecting the first respondent\/workman to undergo medical examination by a
\nmedical practitioner free of charge. Concededly, the workman’s claim for
\ncompensation ought to be assessed on the basis of an injury of the same nature
\nand duration as might reasonably have been expected if he had been regularly
\nattended by a qualified medical practitioner. After all, the purpose of Section
\n11 of the Workmen’s Compensation Act, 1923 is that an employer must be satisfied
\nabout the injury to the workman and the examination of injured workman by a
\ncompetent medical practitioner at his cost will satisfy about the nature of
\ninjury instead of demanding a medical certificate from the injured workman.\n<\/p>\n
\t20.To discredit the evidence of P.W.2-Dr.Vijayakumaran to the effect that
\nthe first respondent\/petitioner has sustained professional disability of 50%, no
\nmedical practitioner has been examined as a witness on the side of the second
\nrespondent\/employer before the Tribunal. The role of a medical practitioner is
\nto submit a data relating to the disability of an injured workman and that the
\nTribunal\/ Commissioner can reach his own conclusion, in the considered opinion
\nof this Court. The Loss of Earning Capacity is to be arrived at by taking into
\naccount the destruction or diminution of physical capacity has evidenced by
\nmedical proof and then it has to be seen to what extent the diminution or
\ndestruction must reasonably be taken to have disabled the affected workman.\n<\/p>\n
\t21.At this stage, the learned counsel for the appellant Insurance Company
\ncontends that P.W.2-Dr.Vijayakumaran has assessed the workman’s professional
\ndisability at 50% and assessed the partial and permanent disability of the
\nworkman at 27% and that the medical expert P.W.2-Vijayakumaran has not given
\nbreak-up details of 50% professional disability of workman in Ex.P.6-disability
\ncertificate and therefore, the Commissioner\/Tribunal has erred in relying upon
\nEx.P.6-disability certificate and the evidence of P.W.2-Dr.Vijayakumaran while
\ncalculating the compensation amount. In support of the said contention, the
\nlearned counsel for the appellant cites the decision A.Mohan V. K.Gunasekaran
\nand<\/a> another of this Court reported in 2003-1-L.W. at page 81 wherein it is inter
\nalia observed that ‘the doctor certificate simply state that he assessed and
\ncertified the disability as partial and permanent at 75% but details in support
\nof his conclusion or the nature of injury or of taking x-ray are not furnished
\nand therefore, he cannot certify about the disability on physical verification
\nregarding internal injury.’<\/p>\n
\t22.Further, the learned counsel for the appellant also places reliance on
\nthe decision State of Himachal Pradesh V. Jai Lal AIR<\/a> 1999 Supreme Court 3318 at
\n3321 whereunder the Honourable Supreme Court as among other things observed as
\nfollows:\n<\/p>\n
\t‘An Expert is not a witness of fact. His evidence is really of an advisory
\ncharacter. The duty of an expert witness is to furnish the Judge with the
\nnecessary scientific criteria for testing the accuracy of the conclusions so as
\nto enable the judge to form his independent judgment by the application of this
\ncriteria to the facts proved by the evidence of the case. The scientific opinion
\nevidence, if intelligible, convincing and tested becomes a factor and often an
\nimportant factor for consideration along with the other evidence of the case.
\nThe credibility of such a witness depends on the reasons stated in support of
\nhis conclusions and the data and materials furnished which form the basis of his
\nconclusions.’\t<\/p>\n
\t23.As far as the present case is concerned, the first respondent\/workman
\nhas examined P.W.2-Dr.Vijayakumaran as a witness on his side and that the said
\nmedical expert in his evidence has inter alia deposed that the professional
\ndisability of the first respondent\/workman has been assessed at 50% and further
\nthat he has been subject to cross examination on the side of appellant. In fact,
\na perusal of P.W.2 doctor’s evidence in cross examination indicates that not
\neven a suggestion has been put to the medical expert on the side of
\nappellant\/Insurance Company that the professional disability of 50% assessed by
\nhim is contrary to the ingredients of Section 4(i)(c)(ii) of the Workmen’s
\nCompensation Act. This Court points out that the words ‘assessment of loss of
\nearning capacity by the qualified medical practitioner under Section 4(i)(c)(ii)
\nhave some purpose and it is not a case of ambiguity at all. So long as there is
\nno provision which enables the Commissioner to determine the compensation
\nignoring medical practitioner’s report there is no question of awarding it by
\nthe Commissioner, unless he wants a second report from the medical board as per
\ndecision New India Assurance Company Limited V. Sreedharan 1995 L.L.R. 376
\n(Ker.).’ Moreover, the appellant\/Insurance Company has not examined any medical
\npractitioner on its side to rebut or discredit the evidence of P.W.2-
\nDr.Vijayakumaran in regard to the 50% professional disability sustained by the
\nfirst respondent\/workman. Added further, this Court also points out that the
\ncompensation in regard to non-scheduled injury will be based on the assessment
\nby the medical practitioner as per the decision United India Insurance Company
\nLimited V. Rajeev 2002 L.L.R. 289. Moreover, in D.Venu V. Senen Fernandez 1995
\nII L.L.J. at page 1113, it is observed that the Commissioner can rely on the
\ndoctor’s certificate ascertaining the disability for compensation. Therefore,
\nthe evidence of P.W.2-Dr.Vijayakumaran in regard to the 50% professional
\ndisability sustained by the first respondent\/workman remains unimpeached and in
\nfact, the same is unassailable in the present case. Resultantly, this Court is
\nleft with no option but to hold that in regard to the loss of earning capacity
\nof the first respondent\/workman, there is evidence of P.W.2-doctor who has
\nopined that the professional disability sustained by the workman is assessed at
\n50% and therefore, by placing reliance on the evidence of P.W.2-doctor, the
\nCommissioner determining the loss of earning capacity of the first
\nrespondent\/workman at 50% cannot be in violation of Section 4(i)(c)(ii) of the
\nWorkmen’s Compensation Act, 1923 and the point is answered accordingly.\n<\/p>\n
\t24.Though Section 20(iii) of the Workmen’s Compensation Act, 1923 enables
\nthe Commissioner\/Tribunal to choose one person or more persons possessing
\nspecial knowledge of any matter relevant to the matter under enquiry to assist
\nhim in holding the enquiry and to arrive at a decision for determining the
\ncompensation amount, it is to be noted that the law gives greater latitude to
\nthe Commissioner for workmen’s compensation than there would be in the case of a
\ncountry Courts Judge in England sitting as Arbitrator under the Workmen’s
\nCompensation Act, 1923 as per decision Ali Akbar V. Jawa Bengal Line, Calcutta
\nAIR 1937 (cal) page 696.  It cannot be gainsaid that in the decision Richardson
\nV. Redpath Brown and Company Limited., (1949) 1 All E.R. 110, it is laid down
\nthat ‘it was no part of functions of a medical assessor sitting with the
\nCommissioner to conduct a personal examination of the workman or to report to
\nhim about the effect of the examination and his deductions. His functions are to
\nadvise on difficult medical questions arising upon medical evidence such as the
\nmeaning of technical terms and expressions.’<\/p>\n
\t25.The learned counsel for the appellant cites the decision National
\nInsurance Company Limited V. Abdul Majeed and another 2002 ACJ 1497 wherein it
\nis inter alia held that ‘the Commissioner has arbitrarily fixed the loss of
\nearning disability at 100% contrary to the medical practitioner certifying that
\nthe workman has suffered permanent disability of 20%.’ Therefore, on the basis
\nof facts and circumstances attendant in the present case, this Court safely
\nconcludes that the Commissioner\/ Tribunal has not committed any error in not
\nseeking the assistance of a person possessing special knowledge of any matter
\nrelevant to the matter under enquiry to assist him in the conduct of enquiry as
\nper Section 20(3) of the Act in regard to the assessment of loss of earning
\npower and the point is so answered.\n<\/p>\n
\t26.The Commissioner\/Tribunal has fixed the age of the first
\nrespondent\/workman as 33. The date of accident is on 13.04.2003. In Ex.P.4-
\nDriving Licence of the first respondent\/workman, the date of birth is mentioned
\nas 08.05.1969. Hence, this Court determines the age of the first
\nrespondent\/workman as 33 years as per Ex.P.4-Driving Licence, on  the date of
\naccident. Though P.W.1\/workman in his evidence has stated that he received the
\nsalary of Rs.4,000\/- per month and further received a daily batta of Rs.50\/- as
\nincentive when he undertook a trip, no satisfactory documentary proof has been
\nproduced in the case. However, batta paid to a workman per day to cover special
\nexpenses incurred by him due to his nature of his employment does not amount to
\nwages for the purpose of computing compensation, in the considered opinion of
\nthis Court. Therefore, there is no infirmity or illegality in the
\nCommissioner\/Tribunal fixing the total salary of the first respondent\/workman
\nper month as Rs.3239\/- (basic salary Rs.1781\/- and D.A. Rs.1448\/-) as per
\nG.O.No.2 D 102 Labour and Employment Department dated 22.09.1999 under the
\npayment of Minimum Wages Act and accordingly, this Court fixes his monthly
\nsalary as Rs.3239\/-. Before passing any order of compensation, the
\nCommissioner\/Tribunal is duty bound to assess the actual loss of earning
\ncapacity on the basis of the evidence required under Section 2(1) and Section
\n4(1) of the Workmen’s Compensation Act. Only when the qualified medical
\npractitioner has not assessed the actual loss of earning capacity of the
\nclaimant then only it can be said that the Commissioner\/Tribunal has failed to
\narrive at a just conclusion. But in the instant case, the Commissioner\/ Tribunal
\nhas taken the professional disability of the first respondent\/workman at 50%, as
\nspoken by P.W.2-doctor. Indeed, the award of compensation as per Workmen’s
\nCompensation Act by the Commissioner cannot be cribbed. As per Schedule IV of
\nthe Workmen’s Compensation Act, the factor to be taken into account for working
\nout the lump sum equivalent of compensation amount in case of permanent
\ndisability, in respect of an individual age 33 is 201.66 and accordingly, the
\ncompensation amount of Rs.1,95,348\/- (60 x 100 x 3229 x 201.66 x 50\/100) as
\nfixed by the Commissioner\/ Tribunal, payable by the appellant\/Insurance Company,
\nis just, fair and prudent one and the same does not require any interference in
\nthe hands of this Court.\n<\/p>\n
\t27.Coming next to the award of 12% interest per annum granted by the
\nCommissioner\/Tribunal to the compensation amount of Rs.1,95,348\/-, the learned
\ncounsel for the appellant submits that the grant of 12% interest per annum by
\nthe Tribunal is not correct in the eye of law and the same is without basis. The
\nlearned counsel for the appellant cites the decision The Managing Director, P.T.
\nMGR Transport Corporation, now known as Tamil Nadu Transport Corporation (VPM
\nDivision III) Ltd., Kancheepuram and Another V. Lakshmi Govardan and Others<\/a> 2004
\n(2) TN MAC 55 (DB) wherein this Court has granted total compensation of
\nRs.85,000\/- as rounded off figure with interest at 9% per annum. Ex.P.5-Policy
\nis in the name of the second respondent\/owner and the package policy for Zone A
\npertains to goods carrier commercial vehicle (other than 3 WH) has mentioned in
\nthe Policy. In the decision New India Assurance Company Ltd., V. Harshadbhai
\nAmrutbhai Modhiya and<\/a> another 2006(3) L.L.N. 771, the Hon’ble Supreme Court has
\nobserved as follows:\n<\/p>\n
“By reason of the provisions of the Act, an employer is not statutorily liable
\nto enter into a contract of insurance. Where, however, a contract of insurance
\nis entered into by and between the employer and the insurer, the insurer shall
\nbe liable to indemnify the employer. The insurer, however, unlike under the
\nprovisions of the Motor Vehicles Act does not have a statutory liability. The
\nAct does not contain a provision like S.147 of the Motor Vehicles Act. Section
\n17 of the Act does not provide for any restriction in the matter of contracting
\nout by the employer vis-a-vis the insurer. The terms of a contract of insurance
\nwould depend upon the violation of the parties. A contract of insurance is
\ngoverned by the provisions of the Insurance Act. In terms of the provisions of
\nthe Insurance Act, an insured is bound to pay premium which is to be calculated
\nin the manner provided for therein. With a view to minimise his liability, an
\nemployer can contract out so as to make the insurer not liable as regards
\nindemnifying him in relation to certain matters which do not strictly arise out
\nof the mandatory provisions of any Statute. Contracting out, as regards payment
\nof interest by an employer, therefore, is not prohibited in law.
\n\t[Paras.14, 15 and 19]
\nTherefore, the appellant is not liable for the interest. However, the employer
\nshall be liable to pay the amount of interest to the claimant.
\n\t[Para. 21]
\n\tThe law relating to contracts of insurance is part of the general law of
\ncontract. On a construction of the contract in question it is clear that the
\ninsurer had not undertaken the liability for interest and penalty, but had
\nundertaken to indemnify the employer only to reimburse the compensation the
\nemployer was liable to pay among other things under the Workmen’s Compensation
\nAct. \t\t\t[Para.23]
\nUnless one is in a position to void the exclusion clause concerning liability
\nfor interest and penalty imposed on the insured on account of his failure to
\ncomply with the requirements of the Workmen’s Compensation Act, 1923, the
\ninsurer cannot be made liable to the insured for those amounts.\n<\/p>\n
\t\t\t\t[Para.23]
\nIn Workmen’s Compensation Act, there are no provisions corresponding to those in
\nthe Motor Vehicles Act, insisting on the insurer covering the entire liability
\narising out of an award towards compensation to a third party arising out of a
\nmotor accident. Neither in the Act nor in any other, there is any provision
\nwhich stands in the way of an insurance company and the insured entering into a
\ncontract confining the obligation of the insurance company to indemnify to a
\nparticular head or to a particular amount when it relates to a claim for
\ncompensation to a third party arising under the Workmen’s Compensation Act.
\nTherefore, the obligation of the insurance company clearly stands limited and
\nthe relevant proviso providing for exclusion of liability for interest or
\npenalty has to be given effect to. The entitlement of the claimant under the
\nWorkmen’s Compensation Act is to claim the compensation from the employer. As
\nbetween the employer and the insurer, the rights and obligations would depend
\nupon the terms of the insurance contract. Construing the contract involved here
\nit is clear that the insurer has specifically excluded any liability for
\ninterest or penalty under the Workmen’s Compensation Act and confined its
\nliability to indemnify the employer only against the amount of compensation
\nordered to be paid under the Workmen’s Compensation Act.”\n<\/p>\n
\t28.An important fact to be noticed is that the penalty and interest are
\nspecial provisions under Section 4-A of the Workmen’s Compensation Act, 1923.
\nUnder Section 4-A, the workman becomes entitled to the compensation as soon as
\nit falls due i.e. on the date the injury is caused and not at any later date. If
\nthe employer has taken steps to inform the Commissioner or to pay the amount of
\ncompensation then in the instant case, the workman would not have suffered
\nwhatever may be the duration period and therefore, the award of interest from
\nthe date it fell due can generally be ignored. But the first respondent\/workman
\nhas been perforced to approach the Commissioner\/Tribunal in projecting his claim
\nfor compensation.\n<\/p>\n
\t29.This Court points out the decision P.J.Narayan V. Union of India and
\nothers 2006 (3) L.L.N. 770 wherein the Hon’ble Supreme Court has observed that
\n‘the statutory liability under the Workmen’s Compensation Act is on the employer
\nand that an insurance is a matter of contract between the insurance company and
\nthe insured and that it is always open to the insurance company to refuse to
\ninsure and similarly, they are entitled to provide by contract that  they will
\nnot take on liability for interest and in the absence of any Statute to that
\neffect, insurance companies cannot be forced by Courts to take on liabilities
\nwhich they do not want to taken on.’ Further, this Court also cites the decision
\nPratab Narain Singh V. Srinivas AIR 1976 SC at page 222 wherein the Hon’ble
\nSupreme Court has inter alia held that ‘the liability of an employer arises as
\nsoon as the personal injury is caused and the Section 19 of the Workmen’s
\nCompensation Act, 1923 does not suspend such liability and where the employer
\nfails to pay the compensation and also makes no professional payment under
\nSection 4(2) but challenges the jurisdiction of the Commissioner, the employer
\nis liable to pay interest and penalty.’<\/p>\n
\t30.A perusal of Ex.P.5-Package Policy for Zone A Goods Carrying Comm.
\nVehicle (other than 3 wh) standing in the name of second respondent\/owner speaks
\nof the policy ‘covering the use of the vehicle for any purpose other than\n<\/p>\n
(b)Carriage of goods (other than samples or personal luggage)\/(c)Organized
\nracing\/(d)Pace making\/(e)Speed testing \/(f)Reliability Trials\/(g)Any purpose in
\nconnection with Motor Trade (a)Hire or Reward other than the purpose of driving
\ntution. Moreover, the limits of liability are confined to the death of or bodily
\ninjury and such amount as if necessary to meet the requirements of the Motor
\nVehicles Act, 1988. Under Section II-(II) if the policy and the Damage to third
\nparty property Rs.760,000.00 deductible under good Rs.600.00.’ Unlike the scheme
\nof the Motor Vehicles Act, the Workmen’s Compensation Act does not confer a
\nright on the claimant for compensation under that act to claim the payment of
\ncompensation in its entirety from the insurer himself. The entitlement of the
\npetitioner\/claimant under the Workmen’s Compensation Act is to claim the
\ncompensation from the employer. In Ex.P.5-insurance policy, there is nothing to
\nsuggest that the appellant\/insurer has specifically agreed to pay interest or
\npenalty under the Workmen’s Compensation Act, 1923 etc. As between the employer
\nand the insurer the rights and obligations are to depend upon the terms of
\ninsurance contract. Construing the Ex.P.5-policy contract, this Court is of the
\nconsidered view, the appellant\/Insurance Company cannot be mulcted with the
\nliability to pay interest for the compensation amount of Rs.1,95,348\/- awarded
\nby the Commissioner\/Tribunal and in that view of the matter, this Court holds
\nthat the award of interest at 12% per annum by the Commissioner\/Tribunal towards
\nthe compensation amount granted is unsustainable in the eye of law and to
\nprevent the aberration of justice and to meet the ends of justice, this Court
\nfurther directs the first respondent\/ workman to recover the interest at the
\nrate of 9% per annum from the date of accident till the date of payment from the
\nsecond respondent\/owner of the lorry and the finding is recorded accordingly.\n<\/p>\n
\t31.Earlier, in C.M.P.(MD).No.2783 of 2004, this Court has inter alia
\npermitted the first respondent\/workman to withdraw a sum of Rs.75,000\/- from the
\ndeposit made by the appellant and directed the balance amount to be invested in
\nfixed deposit in a Nationalised Bank initially for a period of one year and to
\nrenew the same periodically pending further orders.\n<\/p>\n
\tIn the result, the first respondent\/workman is entitled to receive a sum
\nof Rs.1,95,348\/- [less a sum of Rs.75,000\/- if withdrawn already] as
\ncompensation from the appellant\/ Insurance Company. Liberty is given to the
\nfirst respondent\/ workman to receive the balance amount to which he is entitled
\nto, from the Commissioner\/Tribunal in the manner known to law. Equally, the
\nappellant\/Insurance Company is directed to receive the interest amount deposited
\nby it from the Commissioner\/Tribunal in accordance with law. Further, the first
\nrespondent\/workman is directed to recover the interest amount at the rate of 9%
\nper annum from the date of accident till date of payment for the compensation
\namount of Rs.1,95,348\/- from the second respondent\/owner\/employer in accordance
\nwith law who shall pay the same and the Civil Miscellaneous Appeal is allowed in
\npart in above terms, leaving the parties to bear their own costs. Resultantly,
\nthe award passed by the Commissioner\/Tribunal in W.C.No.131 of 2003 dated
\n14.10.2004 is modified. Consequently, connected miscellaneous petition is
\nclosed.\n<\/p>\n
Sgl<\/p>\n
To<\/p>\n
1.The Deputy Commissioner of Labour,The Workmen’s Compensation,Dindigul.\n<\/p>\n
2.The Record Keeper,V.R.Section,Madurai Bench of Madras High Court,Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Branch Manager vs Rathinasabapathi Alias … on 21 October, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:21\/10\/2008 CORAM THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.(MD)No.388 of 2004 and C.M.P.No.2783 of 2004 The Branch Manager, Oriental Insurance Company Ltd.,555\/1, G.H. Road, Theni. …Appellant\/2nd Respondent Vs 1.Rathinasabapathi alias Sabapathi, 2.M.R.Ganesh (The 2nd […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-195126","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Branch Manager vs Rathinasabapathi Alias ... on 21 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-rathinasabapathi-alias-on-21-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Branch Manager vs Rathinasabapathi Alias ... on 21 October, 2008 - 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