JUDGMENT :

VENKATA JYOTHIRMAI PRATAPA, J.

1. This Civil Miscellaneous Appeal is directed against the impugned Order dated 26.11.2007 in W.C. No. 170 of 2005 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Kadapa (hereinafter be referred to as “Commissioner”).

2. The appellant was the O.P. No. 2/Insurance Company, the respondent No. 1 was the applicant and the respondent No. 2 was the O.P. No. 1/owner of the offending vehicle before the learned Commissioner. For the sake of convenience, the parties are referred to as they were arrayed before the learned Commissioner.

Case of Applicant in nutshell:

3. Applicant was working as a tractor coolie in Tractor and Trailer bearing Nos. AP04U5336 & 5337 under the employment of O.P. No. 1. The vehicle was insured with O.P. No. 2, vide Policy No. 050901/31/03/00998 valid from 11.10.2003 to 10.10.2004. While so, on 13.12.2003 as instructed by the owner, he being a coolie proceeded in tractor from Gollalabodu Gutta with a load of stones and when they reached near Lingala Dine Palli Village on Porumamilla-Mydukur main road, driver of the tractor drove the vehicle in a rash and negligent manner without observing the driving rules and lost control over the vehicle, resulting which, the tractor turned.

4. Applicant sustained grievous injuries and the driver died on the spot. He contends that this was while discharging duties during the course of employment. Crime No. 40 of 2003 was registered for the offences under Sections 337 , 338 and 304-A IPC on the file of B.Mattam Police Station. Applicant sustained partial permanent disability and as is unable to attend the coolie work, he lost total earning capacity. Immediately after the accident, he was admitted in Government Head Quarters Hospital, Kadapa. He was aged about 25 years and earning Rs.3000/- per month as coolie. Therefore, he sought for the compensation of Rs.2,00,000/- with interest at 12% per annum.

Contention of Opposite Parties

5. The O.P. No. 1/owner of the vehicle filed Counter admitting that the applicant is a coolie and he sustained injuries during the course of employment and he was getting Rs.100/- per day. He further stated that the offending vehicle was insured with O.P. No. 2, which was in force covering the risk of the driver as well as five coolies. The driver was having valid driving license and he never violated any conditions of the policy. As such, the O.P. No. 2 is liable to pay the compensation.

6. O.P. No. 2 filed Counter denying the contents of the petition stating that the applicant has not issued any notice under Section 10 (1) of the Workmen’s Compensation Act and therefore, he cannot seek any compensation against the O.P. No. 2. The applicant has to prove the manner in which the accident occurred, age, income and injuries sustained. The applicant is not entitled for the interest claim and the claim is excessive and therefore, sought for dismissal of the petition.

Issues framed & Enquiry:

7. Learned Commissioner on perusal of pleadings of both parties and on hearing both the counsel, framed the following issues for consideration:

(i) Whether the applicant is a workmen as per the provisions of the Workmen’s Compensation Act, 1923 and he met with accident arising out of and in the course of his employment resulting into disability and loss of earning capacity?

(ii) What was the age of the injured applicant at the time of accident?

(iii) What was the wages paid to the injured applicant at the time of accident?

(iv) What is