Labour Law; United India Insurance Co. Ltd. Vs. Selvaraj [Kerala High Court, 13-01-2016]

Workmen’s Compensation Act, 1923 – S. 4 (1) (c) (ii) – While assessing compensation for permanent partial disablement resulting from non-scheduled injury the Commissioner is not expected to blindly accept the assessment of loss of earning capacity made by the qualified medical practitioner. If the Commissioner, based on the materials or evidence on record finds that such assessment of loss of earning capacity cannot be accepted, he can certainly refer the applicant for further expert opinion and report.

Workmen’s Compensation Act, 1923 – S. 4A (3) – the Commissioner was legally correct in granting 12% interest on the amount of compensation from the date of accident.

Workmen’s Compensation Act, 1923 – Even if no amount is claimed, the Commissioner must determine the amount which is found payable to the workman.

Workmen’s Compensation Act, 1923 – The Commissioner was correct in passing an award in excess of the claim made in the application for compensation.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

M.F.A.(WCC)No.173 of 2010

Dated this the 13th day of January, 2016

AGAINST THE ORDER IN WCC 269/2006 OF COMMISSIONER FOR WORKMEN’S COMPENSATION, PALAKKAD DATED 10-11-2009

APPELLANT/SECOND OPPOSITE PARTY IN WCC 269/2006

THE UNITED INDIA INSURANCE CO.LTD., NEMMARA BRANCH REPRESENTED BY THE ASSISTANT MANAGER UNITED INDIA INSURANCE CO.LTD. OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD ERNAKULAM.

BY ADV. SRI.M.A.GEORGE

RESPONDENTS/APPLICANT AND OPPOSITE PARTY NO..1 IN THE WCC

1. SRI.SELVARAJ,S/O.ARUMUGHAN, PF NO.3350, MANALAROO ESTATE, PADAGIRI PO, NELLIAMPATHY.

2. THE MANAGING DIRECTOR, THE NELLIAMPATHY TEA & PRODUCE LTD, MANALAROO ESTATE, PADAGIRI PO NELLIAMPATHY.

R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY

JUDGMENT

ANIL K.NARENDRAN , J.

The appellant is the second opposite party in W.C.C.No.269 of 2006 on the file of the Workmen’s Compensation Commissioner, Palakkad (hereinafter referred to as ‘the Commissioner’), an application filed by the first respondent herein, under Section 22 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’), read with Rule 20 of the Workmen’s Compensation Rules, 1924 (hereinafter referred to as ‘the Rules’), claiming a lump sum amount of Rs.1,00,000/- together with interest as compensation for the injuries sustained in an accident occurred on 14.3.2006, in the course of his employment under the first opposite party, the second respondent herein.

2. The first respondent is a permanent employee in the tea estate owned by the second respondent at Nelliyampathy. On 14.3.2006 at 9.00 am, while the first respondent was plucking tea leaves in the estate, he was attacked by a wild pig, resulting injuries to his right knee. Immediately after the accident, he was taken to the Estate Hospital and from there he was referred to the Medical College Hospital, Thrissur, where he had undergone in-patient treatment till 16.3.2006. At the time of accident, the first respondent was aged 57 years and was working as a Tea Plucker on a daily wages of Rs.120/-. On 4.8.2006, he filed application for compensation before the Commissioner, claiming a lump sum amount of Rs.1,00,000/- from the second respondent. The first respondent contended that he is continuing treatment for the injuries sustained in the accident and that on account of the disability he is not able to work. The first respondent contended further that, since the second respondent has taken a Workmen’s Compensation Policy, the appellant insurer is liable to indemnify the said respondent.

3. After conducting a preliminary enquiry, the application was admitted on 10.11.2006. The second respondent employer was set ex parte and the appellant insurer alone contested the matter. The appellant filed written statement admitting that the second respondent had taken a Workmen’s Compensation Policy. But the appellant insurer denied the averments that, the first respondent sustained employment injury and become permanently disabled due to such injury.

4. On the side of the first respondent Exts.A1 to A4 were marked and also Ext.X1 report of the Medical Board at District Hospital, Palakkad. The first respondent was examined as AW1 and a co-worker was examined as AW2. The second respondent employer or the appellant insurer has not chosen to adduce any oral or documentary evidence.

5. After considering the materials on record, the Commissioner held that the first respondent is a workmen as defined under Section 2(1)(n) of the Act, who met with an accident during and in the course of his employment under the second respondent and sustained injuries. The Commissioner held further that the first respondent, who was aged 57 years at the time of accident, is eligible for workmen’s compensation. Relying on Ext.A1 wage slip, the Commissioner reckoned the wages of the first respondent at Rs.2,272.65 per month, which was rounded to Rs.2,273/-. In Ext.X1, the Medical Board assessed 100% loss of earning capacity. Accepting the loss of earning capacity as certified in Ext.X1 and applying the age factor of 128.33, the Commissioner found that the first respondent is eligible for workmen’s compensation amounting to Rs.1,75,016/- (2,273 x 128.33 x 60/100 x 100/100 = 1,75,016), together with simple interest at the rate of 12% from the date of accident till the date of deposit. Since the insurance coverage is admitted, the Commissioner directed the appellant insurer to deposit the compensation amount together with interest, within 30 days of receipt of the order, failing which the entire amount was ordered to be recovered under the provisions of the Act.