IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FIRST DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No.1176 of 2005 Between: The Branch Manager, The Oriental Insurance Company Limited, Eluru .. Appellant AND Sri Angaluri China Rayalu and another .. Respondents JUDGMENT: The appeal is directed against the order of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Eluru, dated 11-11-2004 in W.C. Case No.55 of 2003. The 1st respondent herein claiming to be employed as a driver on lorry No.AP 9U 5959, owned by the 2nd respondent herein, claimed a compensation of Rs.2,00,000/- from the owner and insurer of the lorry and based his claim on the injuries allegedly suffered due to the accident on 11-04-2001 within the limits of Konta police station of Dantawada District of Chhattisgarh State and consequential amputation of the left leg above the knee. He claimed to be drawing a monthly salary of Rs.3,000/- earlier as a permanent employee on the lorry since six years and stated his disablement to be cent percent in spite of treatment at Government Headquarters hospital, Eluru. He claimed to have spent Rs.30,000/- for treatment and to be burdened with the liability to maintain his wife, two minor daughters and two sons. The insurer contested the claim denying the accident and the manner of the accident as alleged and the age, income and employment, etc., of the claimant. The insurer claimed that there was no relationship of employer and employee between the 2nd respondent herein and the 1st respondent herein and the owner of the lorry himself did not contest the claim. The Commissioner, who condoned the delay in preferring the claim, examined the injured driver and cleaner of the lorry as A.Ws.1 and 2 and the doctor who treated the injured as A.W.3, whereas the insurer examined its Assistant Divisional Manager as R.W.1. Exs.A.1 to A.7 and B.1 to B.4 were marked during the enquiry. The Commissioner referring to the rival contentions and evidence in the impugned order, considered the issues about the accident occurring during the course of employment of the claimant, the liability of the opposite parties to pay compensation and the wage, age and disability to determine the quantum of compensation. The Commissioner found that issuance of a first information report is not a pre-requisite under the Statute and the letter from Konta police station, the letter of the injured to the police, the recording of the statement of the injured by the Head Constable at Government hospital, Eluru, etc., showed the credibility of the claim and the injured had a valid driving licence. In the absence of any evidence of collusion between the lorry owner and the injured, the Commissioner accepted the claim of the injured being injured while on duty during the course of his employment. The disability certificate and the evidence of A.W.3 were noted to be disclosing 50% permanent disability and consequential loss of earning capacity as a driver, while Ex.A.7 driving licence was relied on to arrive at the age of 47 years of the injured by the date of the accident. Referring to the precedents on the aspect and the Government Orders fixing the minimum wages at about the relevant time, the Commissioner calculated the compensation payable on the age factor x minimum wages x 50% of the wages and arrived at a sum of Rs.2,68,874/- as the compensation jointly and severally payable by the opposite parties to be deposited within 30 days from the date of the order. The insurer challenged the said order in this appeal contending that substantial questions of law arise about the involvement of the insured vehicle in the accident and the claimant suffering injuries in such accident, which can be said to be arising out of and in the course of employment of the injured with the insured. The appellant contended that there was no report to Konta police. No record of any medical prescription of the hospital at Konta, non-compliance with the procedure at Eluru, the owner not contesting the claim, the falsity of the evidence of the cleaner, ignorance of the doctor about the manner in which the injuries were suffered and non-production of trip sheet show that the claimant failed to discharge the burden of proof on him in proving the employment injury and when the owner never informed the insurer about the accident, it is a patent case of collusion. Therefore, the appellant desired the impugned order to be reversed. Sri Kota Subba Rao, learned counsel for the appellant and Sri Naram Nageswara Rao, learned counsel for the 1st respondent/ claimant are heard. The point for consideration is whether the claimant did not discharge the burden of proof on him in proving the injury and its consequences to have been suffered during and in the course of his employment with the 2nd respondent herein, whose vehicle was insured with the appellant. The out-patient ticket of the Government hospital at Eluru, dated 28-04-2001 showed the admission of the claimant in the hospital on 12-04-2001 and a certificate was also issued by A.W.3 about the injured being treated since that day for a crush injury on the left leg resulting in amputation of the left lower limb. The claimant was stated to have been discharged on 28-04-2001. The letter Ex.A.3 from the Sub-Divisional Police Officer, Konta showed that the claimant alleged then itself that his statement was recorded by the police and no further action was taken and the injured/claimant went on representing to the police to take further action against the guilty vehicle. While he had a valid driving licence, which was produced before the Commissioner, a panchanama was recorded before an independent mediator by H.C. 599 of Eluru on 12-04-2001 itself with graphic details of the manner in which the accident had occurred when the injured was going on the lorry as driver and it is evident that the injuries suffered can safely be considered as an employment injury that was inflicted on the person of the injured during the course of and out of the employment. The oral evidence of the cleaner and the doctor as A.Ws.2 and 3 could not have been suspected of lacking any independence and the evidence of R.W.1 could not have been sufficient to rebut the broad human probabilities arising out of the evidence of A.Ws.1 to 3. The disability certificate Ex.A.4, the photographs of the injured/claimant and the physical presence of the injured/claimant before the Commissioner had shown the amputation of the left leg above the knee to be the consequence of the injuries suffered in the accident and the Commissioner relied on the date of birth recorded in the driving licence for arriving at the age of the claimant. The age factor or the statutory minimum wages taken as the basis for assessing the compensation payable cannot, therefore, be considered to be incorrect and the compensation was calculated on 50% of such wages. The grant of compensation against the owner and insurer of the lorry in question in favour of the claimant for an employment injury cannot, therefore, be considered susceptible to any interference. However, the confirmation of the impugned order will not militate, in any manner, against any right of the insurer to proceed to recover the compensation paid to the 1st respondent herein, from the owner of the vehicle i.e. the 2nd respondent herein, if it is entitled to do so under the provisions of the Workmen’s Compensation Act and the rules made thereunder. Subject to such clarification, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 21-09-2011 Svv