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Judgment
P.P.S. Janarthana Raja, J.—The appeal is preferred by the claimant against award dated dated 01.07.2004 made in W.C. No. 370 of
2002 on the file of Commissioner of Workmen''s Compensation, (Deputy Commissioner of Labour), Salem.
The appeal is admitted on the following substantial questions of law:
Whether the learned Commissioner is right in not discussing and giving a finding as to the employer and employee relationship between the
claimant/1st respondent and the 1st respondent/2nd respondent herein?
Whether the learned Commissioner is right in not giving a finding as to how he assessed the disability for working capacity as 100% to the
claimant?
Whether the learned Commissioner is right in holding that the injured was a driver and fixing the wages under the Minimum Wages Act without
any evidence?
Background facts in a nutshell are as follows:
The first respondent/claimant is the driver of gas tanker lorry bearing registration No. HR-38-4323 under the second respondent and the same
was insured with the appellant-Insurance company. The injured met with motor vehicle accident on 08.05.2002 at about 7.30 hours. While he was
proceeding near Kodli Gadde Bridge of NH 63 Jurisdiction of Yallapura Police, Karnataka State, another foregoing tanker lorry''s driver suddenly
applied the brake, and so, the claimant lost the control of the tanker lorry and hit against the foregoing tanker lorry. Due to the said impact, the
claimant sustained fracture on his both legs and hip bones. The claimant filed a petition u/s 10 of Workmen Compensation Act and he claimed a
sum of Rs. 5,00,000/- as compensation. The appellant-Insurance company resisted the claim. On pleadings, the Deputy Commissioner of Labour,
Salem framed the following issues:
Whether the claimant sustained injuries due to his employment and during the course of employment as driver under the second respondent?
At the time of the accident, what is her age and income?
3 Due to disability, what is the loss of earning capacity?
What is the compensation he is entitled to?
Who has to pay compensation?
After considering the oral and documentary evidence, the Deputy Commissioner of Labour, Salem, held that the accident had occurred only during
the course of employment under the second respondent and awarded a compensation of Rs. 3,94,934/-.
Aggrieved by that award, the appellant has filed the present appeal.
The learned Counsel appearing for the appellant submitted that there is no employer and employee relationship between the first respondent-
claimant and the second respondent-the employer and hence, the order passed by the Tribunal is wrong. He further submitted that the Tribunal is
wrong in fixing the loss of earning capacity at 100% whereas, the Doctor has determined the disability at 50%. Therefore, the order passed by the
Commissioner is not in accordance with law and the same has to be set aside.
Learned Counsel appearing for the first respondent/claimant submitted that the Deputy Commissioner of Labour, Salem, had considered all the
relevant materials and evidence on record and came to the correct conclusion that the accident had occurred only during the course of employment
under the second respondent and awarded a just, fair and reasonable compensation. Hence the order passed by the Tribunal is in accordance with
law and the same has to be confirmed.
Heard the counsel. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.P1 to P10 were marked. On the side of the
appellant/employer no witness was examined and no document was marked to substantiate their claim. P.W.1 is the claimant. PW2 is Doctor-S.
Kathiravan. Ex.P1 is the First Information Report. Ex.P2 is the driving licence. Ex.P3 is the registration certificate. Ex.P4 is the copy of Insurance.
Ex.P5 is the wound certificate. Ex.P6 is the discharge summary. Ex.P7 is the discharge summary issued by the CMC Hospital. Ex.P8 is the
discharge summary issued by the Srinithi Hospital. Ex.P9 is the disability certificate. Ex.PIO is the X-ray. After considering the above oral and
documentary evidence, the Deputy Commissioner of Labour, Salem, had given a categorical finding that the accident had occurred only during the
course of employment and the appellant has failed to prove that there was no employer-employee relationship between the first respondent and the
second respondent and the finding is based on valid materials and evidence.
At the time of the accident, the claimant was aged about 27 years. He was working as Driver under the second respondent and was earning Rs.
6,000/- per month. PW1-the claimant deposed that the accident was occurred in the course of employment and due to which, he sustained
grievous injuries all over the body and fracture in his both legs and hip bones. PW2-Dr.Kathiravan, who examined the claimant on 24.02.2004,
has determined the disability at 50%. He further deposed that the claimant sustained fracture in his hip joints and urinary track was affected. He
took treatment in Hoopli Private Hospital and later at Srinidhi Hospital, where he undergone surgery. Ex.P7 is the discharge summary issued by
CMC hospital and Ex.P8 is the discharge summary issued by the Srinidhi hospital. Due to the said injuries, there is restricted movement in in the
hip and he cannot drive the vehicle and do the work as before. There is no dispute regarding the disability given by the Doctor. After considering
the oral and documentary evidence, the Tribunal held that the disability affects 100% earning capacity of the claimant and awarded the
compensation as follows:
Salary of the claimant at the time of accident: Rs. 3,082/-
Age of the claimant : 27
Relevant Factor : 213.57
Loss of earning capacity : 100%
Total compensation: Rs. 3,082 x 60/100 x 213.57 x 100/100 : Rs. 3,93,933.64
rounded off to Rs. 3,94,934/-
Though the claimant claimed that he was earning Rs. 6000/- per month, the Tribunal as per Minimum Wages Act during the relevant period, taken
the wage of the driver at Rs. 1,781/- and dearness allowance at Rs. 1,300.72, fixed the monthly income at Rs. 3,082/-. The Tribunal has fixed the
income as per the Minimum Wages Act and considering the nature of the injuries sustained by the claimant, came to the correct conclusion that the
disability affects 100% earning capacity. I do not find any error or illegality in the order passed by the Deputy Commissioner of Labour, Salem,
warranting interference and the finding is based on valid materials 311 d evidence. It is a question of fact and not a perverse order. The order
passed by the Deputy commissioner of Labour is in accordance with law and the same is confirmed. We answer the questions against the
appellant-Insurance company and in favour of the first respondent/claimant. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.