IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.04.2011 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.812 of 2010 and M.P.1 of 2010 National Insurance Company Limited, Divisional Office No.VI, 3rd Floor, Mamatha Complex, New No.25, Whites Road, Chennai – 600 014. ..Appellant/2nd Opposite Party Vs 1.E. Mohan 2.M/s. Bailey Hydro Power (P) Limited, A10, Sipcot Industrial Park, Irungaattu Kottai Sriperubudur, Kancheepuram – 631 501. ..Respondents/Appellant & Ist Opposite Party Appeal filed under Section 30 of the Workmen Compensation Act, against the Order dated 23.10.2009 made in W.C.No.332 of 2007 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour II), Chennai. For appellant : Mr.Srinivasan Ramalingam For respondents : Mr.A. Shanmugaraj for R1 exparte for R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Order dated 23.10.2009 made in W.C.No.332 of 2007 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour II), Chennai, awarding a compensation of Rs.1,22,465/-, failing which together with 12% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree, the appellant/respondent has filed the above appeal praying to set aside order passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts of the case are as follows: On 05.10.2005 at around 05.30 p.m., while the petitioner was bringing piston rods to the store room, it fell on his right leg and consequently the petitioner had sustained bone fracture on his right foot and dislocation on his right ankle, hence the applicant has filed the compensation petition against the opposite parties namely employer and its Insurance Company. 4. The employer/first opposite party had filed a counter statement and stated that the applicant has to prove, that at the time of the accident he had been working in the first opposite party as store keeper and was receiving a monthly salary of Rs.4,556/- per month besides his age was 34 at the time of the accident. The respondent stated that the first opposite company insured with the second opposite party Insurance company. 5. The second opposite party/National Insurance company had filed a counter statement and refuted the compensation petition. The respondent stated that the first respondent denied that there was no relationship between the applicant and first opposite party as employer and employee at the time of the accident. The respondent denied the disability besides the claim amount is excessive. 6. On the side of the applicant two witnesses had been examined namely PW.1-applicant, PW.2-Dr.Saichandran and nine documents were marked namely: medical records issued by the Laxmi hospital, Puthur bone setting centre, medical record, copy of the Insurance policy, legal notice with acknowledgement card, accident report, reply notice and acknowledgement card, school transfer certificate, x ray and disability certificate. On the side of the respondent RW.1 was examined and two documents were marked namely; copy of the Insurance policy and claim form. 7. PW.1 had adduced evidence stating that on 05.02.2005 at about 05.30 p.m., he had taken the piston rods from the store room and carried to the crave, at that time a rope had cut and the load of piston rods unloosened and fell on his foot, as a result he had sustained bone fracture on his foot and dislocated his angle, in order to prove his case the above mentioned documents were marked, he further adduced evidence that at the time of the accident his age was 32 years and he was earning Rs.4,989/- as monthly salary. 8. RW.1 had adduced evidence stating that the applicant had sustained simple injury and is performing his normal duties, he had admitted that the first opposite party's company insured with the second opposite party insurance company. He had marked Ex.R2-copy of the Insurance policy. 9. PW.2 doctor had examined the claimant and adduced evidence stating that the claimant sustained 35% disability in the said https://hcservices.ecourts.gov.in/hcservices/ accident, on his right foot toe was fractured, his right leg angle was dislocated and its movement restricted by 30 decree. 10. On considering the evidence of the witnesses and documentary evidence, the learned Deputy Commissioner of Labour II, had awarded compensation a sum of Rs.1,22,465/- (60/100x3373.80x201.66x300/100=1,22,465/-) against the second opposite party. 11. Aggrieved by the said award the National Insurance Company had filed the above appeal. 12. The learned counsel for the appellant argued that the claimant had sustained simple injuries that is blood clot in the big toe, the applicant had not suffered any loss of earning capacity due to the injuries. The doctor had assessed the injury as 35% which is on the higher side. 13. The learned counsel further argued that the claimant had sustained non scheduled injuries which are categorically listed out in schedule IV of WC Act. The learned Deputy Commissioner of Labour had assessed the compensation in an arbitrary manner. 14. The learned counsel for the applicant argued that the applicant had sustained bone fractures injury on his right foot and dislocation of the right ankle and the same was confirmed on the basis of doctor's evidence and connected medical records, besides the Deputy Commissioner of Labour had considered the age, salary and nature of injuries and disabilities and assessed the compensation and granted the same, as such the appeal is not maintainable. 15. On considering the facts and circumstances of the case, and arguments advanced by the learned counsel appearing on either side and the order passed by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour II), Chennai, this Court is of the considered opinion the loss of earning capacity fixed at 30% which is on the higher side, hence, this Court reduces the earning capacity as 25% considering the nature of injuries, as such this Court grants the compensation as (60/100x3373.80x201.66x25/100=1,02,054.076/- rounded of Rs.1,02,054/-. Therefore, the compensation amount is scaled down to Rs.1,22,465/- to Rs.1,02,054/- which is fair and justifiable in the instant case. 16. It is open to the claimants to withdraw their entire amount with accrued interest thereon lying in the credit of W.C.No.332 of 2007 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour II), Chennai. The appellant is at liberty to withdraw the excess compensation after observing formalities of the court below. https://hcservices.ecourts.gov.in/hcservices/ 17. In the result, this Civil Miscellaneous Appeal is partly allowed, the award and decree passed in W.C.No.332 of 2007 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour II), Chennai, dated 23.10.2009 is modified. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar ub To 1.The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour II), Chennai. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.Srinivasan Ramalingam , Advocate, Sr.No.28400 1 cc to Mr.A. Shanmugaraj , Advocate, Sr.No.29081 C.M.A.No.812 of 2010 SR(CO) PMK.19.7.2011 https://hcservices.ecourts.gov.in/hcservices/