A JEYASANKAR Vs. REENA BOREWELL

JUDGEMENT

(1.) THIS appeal has been preferred by the claimant against the order of the commissioner awarding compensation under the Workmen's Compensation Act. The appellant herein was working as a coolie under the respondent No. 1 herein running a borewell company and the appellant's duty was loading the borewell pipes and other things relating to the borewell machine and unloading the same and install the machine in the borewell place. On 19th October, 1995, at 10 p. m. after finishing the borewell work, they were returning to Dindigul. The lorry was coming near Chokkalinggapuram in melur Taluk, Madurai District. The petitioner travelling fell down from the lorry and sustained compound fracture on the left leg below knee and pelvis bone and head injuries. The multiple injuries suffered by him were while he was in the course of and in connection with the employment.

(2.) A claim petition was filed before the authorities below claiming compensation to the tune of Rs. 2,70,264/ -. The claimant's monthly salary was stated as Rs. 2,000/-with a daily batta of Rs. 25/ -. The claim was resisted by the employer on the ground that onus was only on the claimant to prove that accident had occurred because of the rash and negligent driving of the lorry apart from the fact that he was in employment at that time. It was also contended that the respondent had the policy of insurance and the compensation should be awarded only as per that. In the course of evidence one dr. Shanmuganathan was examined as p. W. 2. According to him, after going through the clinical examination and an X-ray taken the disability certificate was given to the effect that the damage was to the extent of 56 per cent. The X-ray was marked as exhibit in the proceedings on the side of the respondent. On going through the evidence, the authorities below held that the accident occurred while the appellant was in his employment, however, analyzing the evidence of the petitioner-claimant as well as the certificate issued by the medical practitioner, the authorities below fixed the loss of earning as 30 per cent. The age of the claimant was fixed as 19. Taking note of all this, the compensation is fixed at Rs. 67,985/-at 12 per cent interest. Aggrieved of this, the claimant is in appeal.

(3.) THE learned Counsel for the appellant submitted that the Commissioner, workmen's Compensation has reduced the permanent disability from 56 per cent to 30 per cent contrary to the certificate issued by the medical practitioner. In the circumstances, when the factum of the accident has been held to be admittedly arising in the course of employment with respondent No. 1, the arbitrary reduction to 30 per cent was contrary to the evidence. At the time of hearing, the learned Counsel for the appellant, however, could not sustain the said submission. Apart from the evidence of the doctor and the claimant, it may be seen that there was no evidence to show that there was s reduction in the earning capacity on account of the disability and that he can do the job of loadman with certain amount of difficulty.