The main legal point established is the calculation of compensation and the determination of partial permanent disability under the Workmen's Compensation Act.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Compensation Act, to set aside the award dated 30.04.2015 made in W.C.No.1 of 2011 on the file of the Commissioner of Workmen Compensation (Deputy Commissioner of Labour), Tirunelveli.)

1. This Civil Miscellaneous Appeal has been filed by the second respondent Insurance Company challenging the award passed by the Commissioner of Workmen's Compensation, (Deputy Commissioner of Labour), at Tirunelveli in W.C.No.1 of 2011 on 30.04.2015.

2. The applicant workman who was employed by the first respondent sustained injuries in an accident which occurred on 03.01.2010 in the course of his employment. The applicant was working as a driver under the first respondent. The injured was earning a salary of Rs.7,000/- per month and Rs.30/- as daily batta. He was employed with the first respondent since 2008. On 03.01.2010 at about 03.00 p.m., he was driving a Tempo bearing registration No.TN-59-T-3706 belonging to the first respondent from Vellicode to Senamvilai for the purpose of unloading marble. After unloading marble, when he was returning back to Vellicode while the Tempo reached Senamvilai Government School at about 04.30 p.m., due to mechanical problem, the Tempo turtled into the road. Though the injured precautiously jumped out from the Tempo, the Tempo door dashed against the chest of the applicant. As the result of which, he sustained injuries on his both knee, right thigh, shoulder, chest and all over the body. Following which, he was rushed to C.S.I.Neyyor hospital for treatment by one Christopher and Sunil who saw the occurrence. The petitioner was admitted there on 03.01.2010 and discharged after treatment on 28.01.2010 and thereafter he was taking treatment as out patient. He had incurred more than Rs.2,00,000/- as medical expenses. In the course of treatment, a surgery was also done in his shoulder. As a result of which, he was not able to do his normal avocation and he lost his job and income. Hence, he filed a claim petition under Workmen's Compensation Act seeking compensation of Rs. 8,00,000/-.

3. The appellant/second opposite party had filed a counter and categorically stated that all the allegations made by the claimant/injured has to be proved by him and especially the factum that he was employed under the first opposite party and he was drawing salary of Rs.7,000/- per month and batta of Rs.20/- per day. Marking the accident as non fatal accident, the Deputy Commissioner of Labour, Tirunelveli proceeded with W.C.No.1 of 2011.

4. The first respondent was called absent and set exparte and two witnesses were examined on the side of the claimant as P.W.1 including the claimant and the Doctor who treated the petitioner as P.W.2 and six documents Ex.P1 to Ex.P6 were marked. Neither oral evidence was adduced nor any documents were marked on the side of the second respondent/ second opposite party. On the basis of the evidence adduced and documents produced before the Deputy Commissioner of Labour at Tirunelveli, the learned Commissioner was pleased to observe that though P.W.2 I.e., the Doctor who treated P.W.1 has issued partial permanent disability as 75%, recording the fact that no operation was conducted on the injured and treatment for the blood clot and other injuries in the chest of the injured, resulted from the running of tyre of Tempo across the chest of the injured has been duly treated and specifically observing that even a X ray was not filed on behalf of the injured, the learned Commissioner concluded that the partial permanent disability could be only 65% and on that basis, the learned Commissioner has passed the following award:-