ORIENTAL INSURANCE CO LTD Vs. BOLLA SAROJINI

JUDGEMENT

(1.) The appeal C. M. A. No. 222 of 2011 is filed against the order in W. C. No. 8 of 2002 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Warangal and the appeal C. M. A. No. 794 of 2011 is filed against the order in W. C. No. 4 of 2003 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Warangal. Both these claims were filed for recovery of compensation consequent on the death of the deceased in W. C. No. 8 of 2002 and for the injuries received by the petitioner in W. C. No. 4 of 2003 respectively. The deceased B. Parashuramulu and the claimant Mallesham were said to be the labourers on the Tractor and Trailer bearing Nos AP 36 U 3751/3752 belonging to the 1st respondent Devendramma. On 15.02.2002 when they were attending the loading and unloading work due to rash and negligent driving of the driver of the vehicle, Mallesham received injuries and Parashuramulu died. Consequently, a claim was made against the owner and also the Insurance Company.

(2.) The Insurance Company has denied the liability and after considering the evidence on record, the Commissioner has granted a compensation of Rs. 4,00,000/- in W. C. No. 8 of 2002 and Rs. 2,65,205/- in W. C. No. 4 of 2003. The Insurance Company has filed this appeal questioning the quantum of compensation. Though an effort was made to deny the liability and also the nature of the incident, the evidence on record clearly goes to show that the incident happened when the injured and deceased were in employment on the Tractor and Trailer. Evidently, while arriving at the compensation payable consequent on the death or the injuries, the wages have to be taken into consideration and factor has to be applied and in this case whether any disability or the loss of earning capacity has to be determined. In this case, the order of the Tribunal (sic. Commissioner) does not show the method adopted by it is correct. The Commissioner taking into consideration the counter of the owner of the vehicle saying that a sum of Rs. 150/- was being paid to both the labourers has fixed the income and determined the compensation taking the age of the deceased. Evidently, so far as the disability is concerned in W. C. No. 4 of 2003 though 60% disability is given by the doctor, 100% loss of earning capacity was taken into consideration. The above approach of the learned Commissioner is evidently incorrect.

(3.) The counsel for the appellant relied on a decision reported in United India Insurance Co. Ltd. , v. Vaggu Balram and others, where-under it was held that in the absence of any proof, the statement of the employer cannot be taken into consideration. In this case also except the counter, there is no material to show that the payment of wages at the rate of Rs. 150/-was made to each of the labourers. Therefore, only minimum wages have to be taken into consideration and by taking so, the claimants in W. C. No. 8 of 2002 will be entitled to a sum of Rs. 1,88,653/- by taking the basic wage as Rs. 1,437/- and V. D. A. as Rs. 434/- and applying the factor 201.66 taking the age as '33' years. Therefore, this amount of compensation is only payable and consequently, the compensation of Rs. 4,00,000/- granted by the Commissioner is held to be not proper and the claimants in W. C. No. 8 of 2002 are held entitled to a compensation of Rs. 1,88,653/-. So far the claimant in W. C. No. 4 of 2003 is concerned, since evidently there is no evidence of the doctor with regard to the total permanent disability of 100% and the disability is being only 60% and the injury is being a non-schedule injury, the loss of earning capacity has to be fixed only at 60% by keeping in view the Section 4 of the Workmen's Compensation Act. The total compensation to which the petitioner will be entitled is Rs. 1,24,413.26 ps. instead of Rs. 2,65,205/- granted by the Commissioner. Accordingly, the Appeals are allowed in part while confirming the liability of the Insurance Company. The compensation so granted is modified as above. There shall be no order as to costs.