THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI Civil Miscellaneous Appeal No.1326 OF 2011

JUDGMENT:

Aggrieved by the order dated 05.10.2009 in W.C.No.180/1997 (NF) passed by the learned Commissioner for Workmen’s Compensation and Deputy Commissioner of Labour, Nizamabad, the opposite party No.2 / Insurance Company has filed the present Civil Miscellaneous Appeal.

2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Deputy Commissioner (hereinafter will be referred as “Commissioner”).

3. The brief facts of the case are that the applicant filed an application under the provisions of Workmen’s Compensation Act, 1923 (now amended as Employee’s Compensation Act, 1923) claiming compensation of Rs.3,00,000/- alleging that he is aged about 27 years and employed as driver under the employment of opposite party No.1 on a monthly salary of Rs.3,000/- apart from bata of Rs.100/- per day towards bata on the Jeep bearing No.AP 25 B 4876, which was insured with opposite party No.2. On 02.10.1996 at 5.30 pm on the instructions of opposite party No.1 the applicant was proceeding towards Armoor on the above mentioned Jeep and when the jeep reached Dobhighat, some cattle were coming in the opposite direction. The applicant in order to save the cattle, applied sudden breaks of the jeep, due to which the applicant lost control over the jeep, which turned turtle and fell on the right leg of the petitioner resulting fracture of right leg and multiple and grievous injuries to head and on other parts of the body. The applicant was shifted to Government Hospital, Armoor and later shifted to Headquarters Hospital, Nizamabad. On 08.10.21996 the right leg was amputated. Since the insurance policy was subsisting as on the date of the accident, the opposite party No.1 being the owner of the jeep and opposite party No.2 being the insurer of the jeep, are jointly and severally liable to pay the compensation of Rs.3,00,000/- to the applicant, who sustained injuries din the accident that occurred during the course of his employment under opposite party No.1. 4. The opposite party Nos.1 and 2 filed their respective counters, wherein opposite party No.1 admitted the employment of the applicant under him, however, denied the salary as claimed by the applicant and contended that the applicant was paid Rs.2,500/- per month and Rs.50/- towards bata. It was further contended that the claim of the applicant is excessive and exorbitant and even if any compensation is awarded, it is the opposite party No.2, who is liable to pay the same and thus, prayed to dismiss the claim against the opposite party No.2. On the other hand, opposite party No.2 denied the averments of the application including employee-employer relationship between applicant and opposite party No.1, wage and age of the applicant, as such opposite party No.2 is not liable to pay compensation and thus, prayed to dismiss the claim application.

5. Before the learned Commissioner, on behalf of the applicant, PW1 was examined and Exs.A1 to A8 were marked. Exs.A1 to A3 are the certified copies of FIR, Final Report, insurance policy. Exs.A4, A7 and A8 are the prescription bill, discharge card of District Headquarter Hospital, Nizamabad and Disability Certificate. Exs.A5 and A6 are the Photostat copies of registration certificate and driving license of the applicant. On behalf of opposite parties, no evidence was adduced, however, Ex.B1 Insurance Policy of the vehicle was marked. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of the deceased as Rs.2,193.75 paise per month and by applying the relevant factor ‘209.92’ for the age of the applicant being 29 years and by assessing the loss of earning capacity of the applicant @ 100/-, has awarded compensation of Rs.2,51,904/. 6. Dissatisfied by the compensation awarded by the Commissioner, the Opposite Party No.2 has filed the present appeal to set as