THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL Nos.449 OF 2005 and

570 OF 2008

COMMON JUDGMENT:

Aggrieved by order, dated 11.03.2005, in W.C.No.2 of

2004 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Karimnagar, the Insurance Company/appellant filed CMA.No.449 of 2005.

2. Aggrieved by order, dated 11.03.2005, in W.C.No.2 of 2004 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Karimnagar, the claimant/appellant filed CMA.No.570 of

2008.

3. CMA.Nos.449 of 2005 and 570 of 2008 arise out of the same order, they are being heard together and disposed of by this common judgment.

4. For convenience, facts in CMA.No.449 of 2005 are discussed.

5. Heard Mr. M. Satish Reddy, learned counsel representing Mr. Naresh Byrapaneni, learned counsel for appellant/Insurance Company and Mr. V. Rohith, learned counsel representing Mr. V. Kiran Rao, learned counsel appearing for respondents.

6. Claimant/applicant (appellant in CMA.No.570 of 2008 and respondent No.1 in CMA.No.449 of 2005) claims that he’s working as salesman cum auto driver for Vijayasri Enterprises. Respondent No.2 (in CMA.No.449 of 2005) i.e., Opposite party No.1 (Pallerla Laxminarayana) was the proprietor, respondent No.3 (in CMA.No.449 of 2005) i.e., Opposite party No.2 (Pallerla Anil Babu) was the manager. Auto bearing No.AP-15-T-2594 was driven by the claimant/applicant, he claims he was paid a monthly wage of Rs.2,250/- with batta of Rs.50/- per day.

7. On 16.09.2000, around 12:30 p.m., when the claimant/applicant was driving the auto for sale of cosmetics and soaps near Sapthagiri Colony, (Navatha Public School), a scooterist driving rashly and negligently, at high speed, came in opposite direction, to save the scooterist, he turned the auto and the auto turned upside down. The claimant/applicant sustained injuries on left leg, chest and other parts of body. He was shifted to Narsimloo’s Hospital, Karimnagar, later shifted to Yashoda Hospital, Hyderabad, he underwent treatment as inpatient from 17.09.2000 to 08.10.2000. Rods were inserted in his left leg and surgery performed for his chest injury. Later discharged from Hospital.

8. Commissioner (in case No.W.C.2 of 2004) considered the evidence of PW1, PW2, Exs.A1 to A9 and Ex.R1 and concluded that claimant/applicant was entitled for a compensation (under Section 4(1)(b) of Workmen’s Compensation Amendment Act, 2000), amount of Rs.89,956/-.

9. The said order is under challenge in CMA.No.449 of

2005 by the Insurance Company.

10. Learned counsel for appellant/Insurance Company submitted that no evidence is adduced by the claimant/applicant to prove that he was a salesman cum auto driver. It is further submitted that contrary to Ex.A4 i.e., Identity card, the Commissioner concluded claimant/applicant to be a salesman cum auto driver.

11. Learned counsel further submitted that Ex.A8 is a disability certificate produced as documentary evidence to prove the permanent partial disability at 30%. (Ex.A8 is medical certificate bearing No.15771/DHH/PHB/2003, dated 15.03.2003, issued by the District Medical Board, District Head Quarters Hospital, Karimnagar). It is submitted that the Doctor who issued the medical certificate is not examined. That non-examination of Doctor who issued the certificate is fatal to the case of the claimant/applicant.

12. Learned counsel placed reliance on paragraph Nos.15 and 16 of the Judgment of Division Bench of this Court in the case of Mandava Surendra Kumar v. B.A. Padmanabha Rao and another, 2011 SCC ONLINE AP 974 and contended that if a medical certificate is issued without examination, such certificates should be rejected. It is also submitted that the

Commissioner erred in law in considering the certificate and awarding compensation.

13. On the other hand, learned counsel for respondents submitted that the date of accident and injuries are not disputed. It is further submitted that generally a procedure