THE HONOURABLE DR.JUSTICE G.RADHA RANI CIVIL MISCELLANEOUS APPEAL No.1146 of 2017

JUDGMENT:

This Civil Miscellaneous Appeal is filed by the appellant – opposite party No.2 (for short O.P.2) – Insurance Company aggrieved by the order dated 03.01.2017 passed in E.C.No.98 of 2012 (NF) by the Commissioner for Employees’ Compensation and Deputy Commissioner of Labor at Nalgonda, under the Employee’s Compensation Act, 1923.

2. The respondent No.1 – applicant filed an application before the Commissioner stating that he was working as a driver on the lorry bearing No.AP-16-TW-6639 belonging to opposite party No.1 (for short O.P.1.) and the O.P.2 was the insurer of the said lorry. On 30.08.2007, while he was on duty as a driver and while proceeding from Pillalamarri Village at about 06:00 AM, he lost control over the lorry and hit a tanker bearing No.AP-10-U-9054, due to which he sustained fracture of left thigh, fracture of left arm, grievous injuries on spinal cord and head. Immediately after the accident, he was shifted to Government Hospital, Suryapet and from there to City Ortho Centre, Vijayawada. Due to the fractures, he became permanently disabled. Police Suryapet Rural registered a case in Crime No.102 of 2007 under Sections 304-A and 337 of IPC.

3. The O.P.1 did not evince any interest to contest the matter, even after receipt of notice and remained ex-parte. The O.P.2 filed counter and called for strict proof of the petition averments.

4. The applicant examined himself as AW.1 and got examined the Orthopedic Surgeon, who issued the disability certificate as AW.2. Exs.A1 to A6 were marked on behalf of the applicant. The respondent No.2 got examined the Divisional Manager of Insurance Company as RW.1 and got marked Exs.B1 to B4 on their behalf.

5. The contention of RW.1 examined on behalf of O.P.2 was that the applicant was not holding driving license to drive the lorry bearing No.AP-16- TW-6639. He failed to submit his original driving license before the Insurance Company to show that he was a driver as per driving license number mentioned in Ex.A5 – Motor Vehicle Inspector’s (for short “MVI”) report. The Insurance Company gave information to their Divisional Office, Dimapur in Nagaland for verification of driving license No.54888/MKG/PROF to Regional Transport Office (for short “RTO”), Mokokchung, Nagaland and obtained a verification report in questionnaire form and found that the said driving license number mentioned in Ex.A5 belonged to one Mr.Anand Sahni, S/o.Narayana Sahni, but not to the applicant. As such, it was clear that the driving license number mentioned in Ex.A5 by the applicant was false and fake and the applicant was not having any driving license as on the date of accident.

6. The learned Commissioner on considering the evidence of both the parties and on considering Exs.A1 to A3, the certified copies of the FIR, medical certificate issued by the City Ortho Centre, Vijayawada and the final report, held that the said documents would establish that the applicant was working as a driver on the lorry bearing No.AP-16-TW-3369 at the time of accident and sustained injuries in the said accident that arose out of and in the course of his employment with O.P.1. Considering the evidence of AW.2, the learned Commissioner held that he was competent to assess the physical disability of the applicant and to issue the disability certificate and having regard to the nature of employment and the duties discharged by the applicant as a driver and due to the fractures of both upper and lower limbs and the resultant disabilities, wherein the applicant developed stiffness of left knee held that it was not possible for him to work as a driver on the lorry with the same efficiency as he was driving as on the date of accident and assessed the loss of earning capacity of the applicant as 70%.

7. With regard to the contention of O.P.2 that the applicant had no driving license at all at the time of accident, the learned Commissioner observed