THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.504 OF 2015

JUDGMENT:

Aggrieved by order dated 06.01.2015 in W.C.No.266 of

2011 passed by the Commissioner for Employees Compensation and Deputy Commissioner of Labour-I: T. Anjaiah, Karimika Samkshema Bhavanam: RTC Cross Roads, Hyderabad, this Civil Miscellaneous Appeal is filed by Insurance Company.

2. W.C.No.266 of 2011 is of the year 2011. C.M.A. is of the year 2015. Matter is posted under the caption ‘For Dismissal’, there is no representation for Insurance Company. This Court queried about counsels in the panel of National Insurance Company Limited. It is informed that Mr. V. Sambasiva Rao is a counsel in the panel of National Insurance Company Limited. This Court requested Mr. V. Sambasiva Rao to assist and make submissions on the merits of the case, counsel made submissions. For all purposes, he shall be the counsel for Insurance Company in this matter.

3. Heard Mr. V. Satyam Reddy, learned Senior Counsel for the respondent No.1/applicant.

4. Appellant is Insurance Company (Opposite Party No.2), respondent No.1 is applicant, respondent No.2 is owner (Opposite Party No.1 before the Commissioner).

5. Brief facts:

Applicant is a driver on lorry bearing No.AP 29T 3015.

On 24.12.2010, while on duty and proceeding on work, he stopped the lorry near Gayatri Nagar ‘X’ Roads for dinner and while crossing the road, an unknown Car came in a rash and negligent manner and dashed the applicant and fled away. Applicant sustained a fracture on right femur, was shifted to Medicare Hospital, L.B. Nagar. Thereafter, shifted to Ankit Multi Specialty Hospital, Santhosh Nagar on 26.12.2010. Applicant was operated on 27.12.2010 and discharged on 04.02.2011. Applicant sustained injuries during the course of employment and spent Rs.30,000/- towards his treatment. Crime No.450 of 2010 under Section

337 of IPC was registered in the police Station at Meerpet.

6. Applicant claimed wages of Rs.5,000/- per month and batta, he was aged 35 years on the date of accident. The owner (K. Venkat Reddy), insured the lorry, vide Insurance Policy, valid from 29.12.2009 to 28.12.2010 covering the date of accident. Applicant claimed a compensation of Rs.3,00,000/- with interest. Opposite Party No.1 is set ex parte before the Commissioner.

7. By order dated 06.01.2015, Commissioner, basing on the evidence of AWs.1 and 2, Exs.A1 to A8 (marked on behalf of applicant), Ex.B1 (marked on behalf of Insurance Company), and the submissions of counsels, awarded an amount of Rs.2,10,610/- as compensation with interest @ 12% per annum from 25.01.2011 till the date of realization. This order is under challenge in the present civil miscellaneous appeal.

8. Learned Standing Counsel for the Insurance Company submitted that the driver of the lorry did not have a valid driving licence as on the date of accident. It is further submitted that the licence of driver was valid up to 04.10.2010 and the accident occurred on 24.12.2010. It is further submitted that the applicant cannot be said to be possessing a valid driving licence.

9. It is submitted that the Orthopaedic Surgeon, after examining the driver clinically and radiologically, held that the percentage of disability is 15%, the Commissioner could not have assessed the loss of earning capacity at 30%. It is further submitted that in a catena of judgments, it is held that assessment of loss of earning capacity cannot be more than the physical disability. That the loss of earning capacity is 15% and the physical disability has to be 15%. Learned Standing Counsel invited the attention of this Court to Section 15 of the Motor Vehicles Act, 1988, which deals with the renewal of driving licences and contended that if a driving licence expires, within one month of expiry, licence has to be renewed, that in the present case, it is beyond one month. Hence, it is deemed that the driver did not possess a valid driving licence as on the date of accident i.e., 24.12.2010. It is