HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1145 of 2002 JUDGMENT: The second respondent-New India Assurance Company in W.C.No.110 of 1999 NF filed this appeal assailing the orders of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour at Nizamabad dated 16.01.2002 whereby opposite party Nos. 1 and 2 therein were directed jointly and severally to deposit the amount of Rs.1,99,661-00 (Rupees one lakh ninety nine thousand six hundred sixty one) only towards compensation. 2. The facts, in brief, are that the applicant in the said W.C. was working as a Driver of Jeep bearing No.KA24 M 4545 under the employment of O.P.No.1-owner of the said Jeep, on a monthly pay of Rs.3,000/- and the Jeep was insured with O.P.No.2. 3. That on 5-2-1998 at about 11.30 p.m. as per the instruction of O.P.No.1, the applicant started from Nizamabad to go to Faridpet and that he was driving the Jeep slowly and when he reached the outskirts of Sadasivnagar at about 1.30 a.m., a Tractor came from the opposite direction at high speed and driven in a rash and negligent manner by its driver and dashed against his Jeep as a result thereof, the applicant-driver of the Jeep sustained fracture to his right hand and injuries to his legs, back and other parts of his body. Sadasivnagar P.S. registered a case in Crime No.19/98 under Section 338 IPC against the Tractor driver. The applicant was admitted in Government Civil Hospital, Kamareddy where he was initially treated and later he took treatment at a private hospital at Nizamabad; that he incurred an expenditure of Rs.70,000/- towards medicines and extra nourishment and that due to the injuries he was unable to drive any vehicle, therefore, he filed the said W.C.No.110 of 1999 NF under Section 22 of the Workmen’s Compensation Act, 1923 against O.P.Nos.1 and 2 claiming compensation of Rs.2,00,000/- for the personal injuries suffered by him during of course of employment under O.P.No.1 in the said accident. 4. O.P.No.1 filed counter admitting that the applicant was working as driver under him on a monthly pay of Rs.2,500/- and also admitted that the said accident had occurred during the course of his employment. O.P. No.2 also filed counter denying the material allegations made in the claim petition. 5. Based on the pleadings of both sides, the Assistant Commissioner of Labour framed the following issues: i. Whether the applicant is a workman within the meaning of the Act and whether the accident occurred during the course of employment under Opposite Party No.1? ii. If so, to what relief the applicant is entitled and against which of the opposite parties? 6. To prove his case, the applicant got himself examined as PW.1 besides examining one Dr.Ramulu as PW.2 and got marked Exs.A.1 to A.11. However, no witnesses were examined on behalf of the respondents except marking Exs.B.1-copy of R.C. book and B.2-copy of insurance policy. 7. The applicant in his evidence as PW.1 has reiterated the averments of his application as to his working as driver under O.P.No.1 and drawing Rs.3,000/- per month, as to the manner of accident on the relevant day, the nature of injuries suffered by him and also the nature of treatment undergone as well as the medical expenditure incurred therefor. He further testified that surgery was done to his right elbow and rod was inserted and that he was unable to drive any vehicle, as such O.P.No.1 terminated his services. The medical witness-PW.2 has stated as to the treatment extended to the applicant in continuation of the treatment that was taken by the applicant at Kamareddy; that his further examination revealed that it was an old case of compound fracture of both bones of right forearm and humorous; that he issued Ex.A.9-disability certificate; that he is unable to move his right upper limb and that he assessed the disability at 80% permanent partial disability with loss of earning capacity at 80%. He also testified that the applicant requires another operation to set the right bone and that the applicant cannot do the driver’s job in future. 8. The Assistant Commissioner of Labour taking into consideration the evidence and other material on record has awarded a total compensation of Rs.1,99,661/- as already stated herein above in Para No.1 supra. 9. It is the case of the appellant-insurance company that the accident did not take place during the course of employment under O.P.No.1. It is the further case of the appellant-insurance company that the respondent-applicant failed to discharge the onus of proving the fact that he was working under O.P.No.1 and that the motor vehicle accident occurred during the course of his employment under O.P.No.1. He has not filed any document to that effect. He has not even filed any document to show that O.P.No.1 has terminated his services. It is the case of the appellant-insurance company that though the applicant failed to prove his employment under O.P.No.1 by filing any document, the lower authority erroneously came to the conclusion that the respondent-applicant was working under O.P.No.1 and the accident had occurred during the course of his employment under O.P.No.1. It is further contended that though the applicant was first treated at Kamareddy and thereafter at a private hospital at Nizambad, however, nobody was examined. PW.2-Dr.Ramulu who has not treated applicant initially for the injuries alleged to have been suffered by him in the accident has issued Ex.A.9-disability certificate and the said exhibit cannot be looked into. Therefore, it is contended that the lower authority erred in considering Ex.A.9-disability certificate in awarding compensation. The appellant-insurance company also took exception to the fixing of the age of the applicant as 30 years by the lower authority, though his date of birth has been mentioned in driving licence as 8-8-1967, as per which, his age should have been little more than 31 years by the date of the accident. It is also pointed out that the lower authority erred in fixing the monthly earnings of the applicant and that while holding that the applicant was paid Rs.2,000/- per month as a Jeep driver, the lower authority had deducted 40% instead of 50%. It is also pointed out that even if the age of the applicant is considered to be 31 years, the factor would come to 205.95 whereas the lower authority has fixed at 207.98, erroneously. Lastly, it is the case of the appellant-insurance company that had the lower authority considered the above facts the compensation would have drastically come down. 10. On the other hand, it is the case of the respondent-applicant that he suffered injuries in the motor vehicle accident that took place during the course of his employment under O.P.No.1-owner of the Jeep. It is his further case that the written statement filed by O.P.No.1-owner of Jeep discloses that he was working under O.P.No.1 and the same proves his employment beyond doubt. It is further his case that since he suffered 80% disability as per Ex.A.9-disability certificate, naturally he became unfit to do the job of a driver. Therefore, the court can take note of the fact and no document is required to prove termination of services. It is further case of the respondent-applicant that even as per the date of birth mentioned in Ex.A.11-Driving Licence, he was aged about 30 years by the date of the accident. It is submitted that once it is clear from the written statement of O.P.No.1 that the respondent- applicant was working under him and the factum of accident is proved by Ex.A.1-FIR, it has got to be accepted that the said accident had occurred and the said injuries were suffered by the respondent- applicant during the course of his employment under O.P.No.1. Moreover, it is submitted that since the Workmen’s Compensation Act, 1923 is a social beneficial legislation, technicalities should not come in the way of rendering justice. 11. It is to be seen that O.P.No.1 in his counter has categorically stated that the applicant was working as driver under him on a monthly salary of Rs.2,500/- and that the accident had occurred during the course of his employment under him. It is pertinent to note that the accident had occurred on 5.2.1998 and the applicant’s date of birth was mentioned in Ex.A.11-driving licence as 8.8.1967. As such, his age was just more than 30 years at the time of the accident. PW.2- Doctor has stated that it was an old case of compound fracture of both bones of right forearm and humorous; that he issued Ex.A.9-disability certificate; that the applicant is unable to move his right upper limb; that he assessed the disability at 80% permanent partial disability with loss of earning capacity at 80%; that applicant requires another operation to set the right bone and that the applicant cannot do the driver’s job in future. Further, in view of the ceiling in the Act, the lower authority fixed the monthly salary of the applicant at Rs.2,000/-and was arrived at a total compensation of Rs.1,99,661/- after taking 60% wages, relevant age factor and percentage of disability. 12. In the circumstances, this court is of the considered opinion that the order impugned does not suffer from any infirmity warranting interference from this court and the C.M.A. is liable to be dismissed and the same is hereby dismissed. No order as to costs. ​ ​ _______________ B.N.RAO NALLA,J 04.02.2011 Stp HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1145 of 2002 04.02.2011