1. The United India Insurance Company Limited filed this appeal being aggrieved by the award dated 28-2-2006 passed in WCA/NFC-41/2004 by the Commissioner for Workmen''s Compensation, Bangalore.
2. The facts of the case are as follows:
The first respondent filed a claim petition under the Workmen''s Compensation Act seeking compensation interalia contending that he was wanting as a driver of goods Tempo bearing Registration No. KA-08/1740 belonging to the second respondent. During the course of employment the said tempo, met with an accident on 14-4-2004 at about 4.30 p.m. while proceeding from Chenni towards Bangarpet taking a load of vegetables. Due to the accident, the claimant sustained the following injuries:
Open compound fracture of shaft femur right, basal neck fracture, femur right, medical condyle fracture of lemur, injury on the right patella, injury and wound on the right knee with exposed medial condyle of femur and small fragments of tibula and other injuries.
Immediately he was taken to the CMC Hospital at Vellore and he was in-patient in the said Hospital for two days and thereafter he was shifted to Mallya Hospital, Bangalore for further treatment. He was in patient in the said Hospital till 23-5-2004.
3. It is the contention of the claimant that he was working as a driver and getting a salary of Rs. 4.000/ - p.m. and Rs. 50/ - per day as batta and he also contended that due to the accident, he cannot do the driving work and he suffered huge loss. Hence, he prayed for the compensation under the Workmen''s Compensation Act.
4. In pursuance to the notice issued by the Commissioner for Workmen''s Compensation, the second respondent entered appearance and admitted the fact that the tempo in question met with an accident on 14-4-2004 and that the claimant is a workman under him and also that he was paying a salary of Rs. 4,000/ - p.m. and Rs. 50/ - per day as batta. Since the said tempo is covered by the insurance, the Insurer is liable to pay compensation.
5. The Insurance Company filed objections denying the -averments made in the claim petition and contended that the claimant has not been working as a driver of the said tempo and he was not an employee of the second respondent. It was also contended that the claimant was not possessing valid Driving License on the date of accident and there is no relationship of master and servant between the claimant and the second respondent and hence, sought for dismissal of the claim petition.
6. On the basis of the pleadings of the parties, the Commissioner for Workmen''s Compensation has framed necessary issues.
7. The claimant, in order to prove his case has examined himself as P.W.1 and examined the Doctor who treated him as P.W.2 and got marked the documents as Ex.P1 to Ex.P7. The Insurance Company has not led any evidence but has cross-examined the claimant as well as the Doctor.
8. The claimant, in his cross-examination has deposed that he was working as driver of the said Tempo and getting salary of Rs. 4,000./ - p.m. and Rs. 50/ - per day as batta and also deposed that due to the accident that occurred near Mulbagil, he has sustained injuries. He also deposed that he had taken treatment in CMC Hospital at Vellore and thereafter, in Mallya Hospital at Bangalore. The Doctor who has treated the claimant has deposed in his cross- examination that he has examined the claimant and he found the following disabilities.
(a) Open compound fracture shaft of femur rights;
(b) Fracture basal neck of femur right;
(c) Fracture of medical condyle of femur right;
(d) Avulsion ILI() tibial band from gerdy''s tubercle;
(e) Avulsion of Patellar tendon;
(f) Loss of anterior tibial plate on right side; and
(g) Sutured wound over the fore head and cheek.
The Doctor has opined that after assessing his mobility and stability, components, strength of muscles and radiological investigation, the disability for the right lower limb is assessed at 60.5%. He opined that with the above disability, the claimant cannot drive any type of vehicles (four wheelers).
9. The Commissioner for Workmen''s Compensation on the basis of the evidence of the parties; oral and documentary evidence; taking into consideration 60% of the salary of the claimant: by applying relevant factor and also taking into consideration 60% disability has awarded compensation of Rs. 3,19,367/ - with interest at the rate of 12% p.a. from the date of the claim petition.
10. The appellant being aggrieved by the award passed by the Commissioner for Workmen''s Compensation preferred this appeal contending that the compensation awarded by the Commissioner for Workmen''s Compensation is too exorbitant.
11. Sri. A.M. Venkatesh, learned Counsel appearing for the appellant contended that the claimant has not produced any material to show that he is getting a salary of Rs. 4,000/ - p.m. and also to show his functional disability is more than 60% and sought for setting aside the award passed by the Commissioner for Workmen''s Compensation.
12. On the other hand, Smt. Suguna R. Reddy, learned Counsel appearing for the claimant-respondent contended that due to the accident, the claimant has suffered permanent disability to drive four wheelers and he was in-patient for a period of more than one month and also he was under treatment for a period of six months. Three months after the accident, the implants have been removed by carrying out one more operation. Hence, the compensation awarded by the Commissioner is fair and just compensation and sought for dismissal of the appeal.
13. We have carefully gone through the arguments addressed by the learned Counsel for both the parties, perused the award and oral and documentary evidence led by the parties.
14. It is not in dispute that the claimant has suffered injuries due to the accident that occurred on 14-4-2004 at about 4.30 p.m. while proceedings from Chenni towards Bangarpet. He was shifted to the CMC Hospital at Vellore and thereafter he was shifted to Mallya Hospital at Bangalore. He was in-patient for a period of more than a month He has undergone two operations. Further by leading necessary evidence, the claimant has proved that the accident has taken place during the course and out of employment. The owner of the vehicle has also admitted that the claimant was a driver as on the date of the accident. Hence, the Insurance Company cannot dispute that the claimant is not the driver of the said vehicle. Though, the Insurance Company had taken a contention before the Commissioner that the claimant did not possess a valid Driving License as on the date of the accident and the same is not proved by leading necessary evidence. The owner of the vehicle has admitted before the Commissioner that he was paying a salary of Rs. 4,000/ - p.m. and Rs. 50/ - per day as batta to the deceased.
15. Taking into consideration all these aspects of the matter, since the claimant is aged about 23 years on the date of accident, the Commissioner has awarded compensation.
16. Further, Dr. Devaraj who has treated the claimant has deposed before the Commissioner that the claimant has suffered disability to the extent of 60% over the right lower limb and he cannot drive any type of 4 wheeler vehicles. The claimant is a driver by profession and due to the accident he lost his avocation.
17. The Commissioner for Workmen''s Compensation, taking 60% of the salary of the claimant out of Rs. 4,000/ - p.m. and by applying relevant factor has awarded compensation, which is just and fair compensation and does not require any interference by this Court.
18. However, Sri. A.M. Venkatesh, learned Counsel appearing for the Insurance Company contended that the interest awarded by the Commissioner is too exorbitant in view of the law laid down by the Hon''ble Supreme Court in a judgment reported in AIR 2009 SCW 3717 in the case of The Oriental Insurance Company Ltd. v. Mohd. Nasir and Ors. and contended that the same is contrary to law,
19. We have perused the award. The Commissioner has awarded interest at the rate of 12% p.a. from the date of the accident which is contrary to the law laid down by the Hon''ble Supreme Court in view of the above cited judgment. Hence, we pass the following:
ORDER
The appeal is allowed in part. The compensation awarded by the Commissioner for Workmen''s Compensation is confirmed. In sofar as the interest portion is concerned. We direct the Insurance Company to pay interest at the rate of 7.5% p.m. from the date of petition till the date of award passed by the Commissioner for Workmen''s Compensation and at the rate of 12% p.a. from the date of award till the date of deposit.
The amount in deposit, if any, before this Court shall be transferred to the Commissioner for Workmen''s Compensation, Kolar, forthwith.
