THE HON’BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.338 of 2005 JUDGMENT: This Appeal under Section 30 of the Workmen’s Compensation Act is directed against the order dated 15-10-2004, passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Hyderabad, (for brevity ‘the Commissioner’), in W.C.No.57 of 2004 filed by the applicant-respondent No. 1 herein, claiming compensation of Rs.5,00,000/- for the cause of injuries sustained by him, in a motor accident when he was proceeding on DCM van bearing Regn. No.AP11 W 2549 as a driver towards Kukatpally, and while taking a turn at Dharamkanta at Godrej cross roads, he met with accident, due to which, he lost control over the van and hit a road divider and as a result of which, he sustained fracture injuries on his right leg and was shifted to Gandhi Hospital, Secunderabad, where he underwent operation for his right leg. The appellant-insurer filed counter-affidavit denying the averments made in the petition. By the judgment impugned, the Court below awarded a sum of Rs.1,99,379/- as compensation with interest at 9% per annum from the date of the petition till realization payable by the appellant and respondent No.2- owner jointly and severally. Disputing the liability, the appellant-insurance company filed the present appeal. 2. Heard the learned standing counsel for the appellant, the learned counsel for the 1st respondent and the learned counsel for the 2nd respondent and perused the entire material available on record. 3. Learned standing counsel for the appellant contended that the Commissioner erred in granting higher compensation by taking the percentage of loss of earning capacity at 50% as against the medical evidence. He further contended that A.W.2, doctor, has categorically stated in his evidence that the applicant sustained only 40% disability. Under Section 4 (2) of the Workmen’s Compensation Act (for brevity ‘the Act’), the Commissioner has to confine the disability only to the extent as assessed by the doctor who treated the applicant. He further contended that the wages taken by the Commissioner are in accordance with G.O.Ms.No.81, dated 02-12-2000, which is meant for private motor transport which carries more wages, hence, the wages taken by the Commissioner are also to be reduced since the DCM van is considered to be as a light motor vehicle. Therefore, the compensation granted by the Commissioner may be reduced. 4. Learned counsel for the respondent No.1 contended that the Commissioner has rightly awarded compensation after considering the oral and documentary evidence and therefore, there is no necessity for this Court to reduce the award granted by the Commissioner. 5. As seen from the record, it is no doubt true that the accident occurred accidentally but not due to any willful negligence of the applicant. The Commissioner fixed the total wages of the applicant as Rs.3531/-. But, however, since the DCM van is considered as a medium vehicle, the wages taken by the Commissioner are to be reduced to Rs.3004/- only. Further, the Commissioner has taken 50% disability while granting compensation. In my considered view, which may not be granted without considering the evidence of the doctor who treated the applicant. 6. The doctor who was examined as A.W.2 stated in his evidence that there is partial and permanent disability at 40%. Ex.A-3, disability certificate, which was issued by the competent orthopedic surgeon, also shows the nature of injuries. The Commissioner ought to have taken into consideration the opinion of the doctors concerned while coming to the conclusion in respect of disability. Therefore, the applicant is not entitled to be considered for 50% disability, but at 40% only. Hence, if 40% disability is taken into consideration, the applicant is entitled to a sum of Rs.1,34,747/- (3004 (X) 60/100 (X) 40/100 X 186.90) only as per the Act. 7. So far the fixation of the liability against the insurance company is concerned, learned standing counsel appearing for the appellant contended that the Court below ought not to have fastened the liability on the appellant since the 2nd respondent, who is the ‘transferee owner as per the Registration Certificate, Ex.A-4, nor N.Sivanagaraju, who claimed himself to be the owner of the van on the date of accident as per the FIR, Ex. A-1 and final report, Ex.B-2, applied for transfer of insurance policy Ex.B-1 to their name by paying the prescribed fee and that the policy Ex.B- 1, is continued to be in the name of M.Narsimha, and therefore, the insurance company is not liable to indemnify the 2nd respondent. In support of his contention, he relied upon a decision rendered in National Insurance Company Limited v. Baljit Kaur and others[1] wherein it was held: “The Insurance Company is liable to pay the compensation at the first instance to the claimant and then recover the same from the owner.” The Apex Court, while allowing the insurer’s appeal, further held that in the interest of justice, the insurer is directed to satisfy the awarded amount and recover the same from the owner of the vehicle simply by initiating a proceeding before the executing court without filing a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Accidents Claims Tribunal and the issue was decided against the owner and in favour of the insurer. 8. Admittedly, the crime vehicle was insured with the appellant- insurer as per Ex.B1-policy. Hence, following the above said judgment of the Apex Court, the appellant-insurer is directed to satisfy the decree at the first instance and to recover the awarded amount from the owner of the crime vehicle. 9. In the result, the appeal, filed by the insurer, is allowed in part holding that the 1st respondent-applicant is entitled to only Rs.1,34,791/-, instead of Rs.1,99,379/-, as total compensation as enhancement of compensation. The appellant-insurer is directed to satisfy the decree at the first instance and to recover the awarded amount from the owner of the crime vehicle. The interest awarded by the Commissioner is reduced from 9% to 7% interest from the date of this order till the date of realization. The order in W.C.No.57 of 2004, dated 15-10-2004, is modified accordingly. There shall be no order as to costs. ____________________________ January 27, 2011 JUSTICE GHULAM MOHAMMED Kvr [1] (2004) 2 Supreme Court Cases