THE HON’BLE Dr. JUSTICE G.RADHA RANI CIVIL MISCELLANEOUS APPEAL No.250 of 2011

JUDGMENT:

This Civil Miscellaneous Appeal is filed by the appellant – Opposite Party No.2 – Insurance Company aggrieved by the judgment and decree dated 09.11.2010 in W.C. No.20 of 2008 passed by the Commissioner for the Workmen’s Compensation and Assistant Commissioner of Labour – II, RTC Cross Roads, Hyderabad.

2. The respondent No.1 is the applicant, who filed W.C. No.20 of 2008. The applicant filed an application before the Assistant Commissioner of Labour – II, stating that he was working as a driver on lorry bearing No. AP-16TV-2183 under the employment of O.P.1 on payment of Rs.4,500/- per month towards wage, and batta of Rs.100/- per day. On 2.3.2008, while he was on duty and proceeding from Asifabad to Chandrapur and when reached near Bedaram School, he lost control over the lorry and hit another lorry bearing No.AP-36-V-8295, due to which he sustained comminuted fracture of tibia and other multiple injuries all over the body.

The Police, Wankidi, registered a case in Crime No.9 of 2008.

2.1. He further submitted that he sustained injuries during the course of and out of his employment with O.P No.1. The fracture was mal-united and he sustained physical disability as well as functional disability and claimed compensation of Rs.4,00,000/- against O.P. 1 and O.P.2 - owner and insurer of lorry bearing No.AP-16-TB-2183.

3. The respondent No.2 – Opposite Party No.1 remained ex-parte. The appellant herein - Opposite Party No.2 filed his counter and called for strict proof of the averments made in the application. The Opposite Party No.2 contended that the accident occurred on 2.3.2008, the driving license of the injured - applicant was not valid as on the date of the accident, as the same was not renewed by the date of the accident, O.P.1 had violated the terms and conditions of the insurance policy and prayed to dismiss the claim against him.

4. The applicant was examined as AW.1 and got examined the Orthopedic Surgeon, who stated about the disability of the petitioner, as AW.2 and got marked Exs.A1 to A10 on his behalf. The appellant - Opposite Party No.2 got examined the Administrative Officer of his Insurance Company as RW.1 and got marked Exs.B1 and B2. The copy of the Insurance Policy in respect of lorry bearing No. AP-16-TB-2183 was marked as Ex.B1 and the extract of the driving license of applicant was marked as Ex.B2.

5. On considering the oral and documentary evidence on record, the learned Commissioner for the Workmen’s Compensation and Assistant Commissioner of Labour – II, Hyderabad, held that the applicant was a workman within the meaning of the Act and that he sustained injuries in the accident that arose out of and in the course of his employment under O.P.1 and as per the medical evidence, he sustained fracture of right tibia and developed moderate stiffness of right knee with range of movements from 0 to 100 degrees and limping and considering the evidence of AW.2, the orthopedic surgeon examined on behalf of the applicant, and considering the employment and the disability sustained by the applicant and his profession as a driver on a heavy goods vehicle, assessed the loss of earning capacity as 80%. As no reliable document was filed in proof of wage of the applicant, applied the minimum rates of wages fixed by the Government for employment of Public Motor Transport, considered the basic wage for the category of heavy vehicle driver as Rs.4319/- and the V.D.A payable as notified by the Commissioner of Labour, A.P., Hyderabad, as Rs.367.50/- and that the total wage comes to Rs.4686.50/- per month, but limited the same to Rs.4,000/- as per the Act for the purpose of computation of compensation and applying the formula, assessed the amount of compensation as Rs.3,13,094/- and awarded interest at 7.5% per annum from the date of filing of the application till the date of passing the award and held that both the Opposite Parties 1 and 2 wer