HON’BLE SRI JUSTICE R.KANTHA RAO CMA No.1500 of 2000 FRIDAY, THE 30th DAY OF OCTOBER, 2009 Between: Jannadula Ramesh ….APPELLANT(S) and Bagi Seshaiah and another …RESPONDENT(S) HON’BLE SRI JUSTICE R.KANTHA RAO CMA No.1500 of 2000 JUDGMENT: I have heard the learned counsel appearing for appellant/ applicant. Appeal against 1st respondent/employer was dismissed for non-prosecution as per the orders of this Court dated 14.10.2008. There is no representation for 2nd respondent-insurance company. 2. This appeal arises out of an order passed on 04.04.1997 in W.C. Case No.400 of 1995 on the file of the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour, I Circle, Guntur, whereby and whereunder the claim preferred by the appellant/applicant i.e. the injured-workman was dismissed by holding that there was no sufficient evidence on record to show that he worked under the 1st respondent/employer as ‘cleaner’ and met with an accident on 04.06.1994 in which he is said to have sustained injuries and thereby the relationship between the appellant/applicant and the 1st respondent as employee and employer was not established to award compensation under the Workmen’s Compensation Act, 1923 (for short – ‘the Act’). The said finding has been assailed in this appeal. 3. A perusal of the order passed by the learned Assistant Commissioner of Labour clearly shows that the 1st respondent in this appeal, who is 1st opposite party, filed counter before the Court below stating that the appellant/applicant worked as cleaner in the lorry bearing No.ABP 1679 belonging to him which was duly insured with the 2nd opposite party (2nd respondent-insurance company herein). He further stated in the counter that the appellant/applicant involved in the accident occurred on 04.06.1994 during the course of his employment near Waste Paper Mill, GNT Road, in Moolakhadi, Madras, and received severe injuries. This apart, there is the oral evidence of A.W.1 who is the appellant/applicant that he was working as cleaner in the lorry bearing No.ABP 1679 belonging to the 1st respondent and insured with the 2nd respondent and he received injuries in the accident occurred on 04.06.1994 at Madras while he was tightening the rope after loading the waste paper in the lorry. According to him, he sustained injuries to his wrist as well as thighbone. It is also his evidence that he was initially treated in KVT Health Centre at Madras and subsequently he was removed to a hospital at Mangalagiri where Dr M.Prasad treated him as inpatient for two months. It is also his evidence that as the injuries were not healed up, he approached Dr. P.Ramachandra Rao for treatment. It is also stated that he cannot lift weights with his left hand and he experiences pain while walking longer distances and thus he cannot work any more as a cleaner. According to him, he was being paid an amount of Rs.1,000/- per month as wages by the 1st respondent. So, he claimed compensation of Rs.1,00,000/- before the Court below. 4. He filed O.P. Chit of KVT Health Centre Madras as Ex.A.1; Prescriptions as Ex.A.2; X-Ray film as Ex.A.3; X-Ray with cover as Ex.A.4; office copy of the notice issued to 1st respondent as Ex.A.5; xerox copy of insurance policy as Ex.A.6; and the Disability Certificate issued by Dr. P.Ramachandra Rao as Ex.A.7. 5. The appellant/applicant also examined the Doctor who examined him and issued Ex.A.7 Disability Certificate as A.W.2 before the Court below. A.W.2 deposed before the Court below that he was working as Assistant Professor of Orthopedics in Government Hospital, Guntur, since January, 1991 and that he examined and identified the appellant/applicant in the Court hall and that he examined the same person on 10.04.1995 with post rheumatic painful right leg due to fracture of right femur and also observed restricted movements of left leg and restricted movements at the place of fracture and that the injuries are grievous and permanent in nature and the disability is 45% to 50% and that the appellant/applicant cannot go back to his normal duties which involve stress and strain on left leg and left hand and that he cannot discharge his duties as cleaner. 6. The 2nd respondent-insurance company did not examine any witness on its behalf before the learned Assistant Commissioner of Labour. 7. Thus, there is enough evidence on the appellant/applicant side which is referred hereinabove and which includes the admission of 1st respondent/employer in the counter filed by him regarding the appellant/applicant’s employment and involvement in the accident which ultimately resulted in permanent disability. The learned Assistant Commissioner of Labour erroneously held that there was no evidence at all in proof of the claim made by the appellant/applicant. Though it was stated in the evidence of A.W.1 that the Doctor who treated him refused to issue Disability Certificate, it was also stated that he obtained Ex.A.7 Disability Certificate from A.W.2 who examined him and issued the same. The learned Assistant Commissioner of Labour erroneously did not take into consideration the same. Therefore, in my considered view, from the evidence of A.Ws.1 and 2 and from the averments of the counter filed by the 1st respondent, it is proved by the appellant/applicant that he was working as a cleaner in the lorry bearing No.ABP 1679 belonging to the 1st respondent and that the accident occurred during the course of employment and that he received 45% to 50% of permanent disability which deprived him from working as a cleaner in any vehicle any longer and that he was being paid an amount of Rs.1,000/- per month as wages by the 1st respondent. All these proved facts have been totally overlooked by the learned Assistant Commissioner of Labour in the impugned order in utter disregard of the material before him. 8. From the foregoing discussion, the appellant/applicant is entitled to the compensation and the amount of compensation is to be allowed as per Section 4 of the Act i.e. 60% of the wages X percentage of disability X relevant factor i.e. Rs.600/- X 45/100 X 221.37 = Rs.59,769.90ps. The appellant is, therefore, entitled to the total compensation of Rs.59,769.90ps. The amount shall carry interest at 6% per annum from the date of petition till the date of realization if not deposited by means of demand draft as per rules by the respondents 1 and 2 who are jointly and severally liable to deposit the same. 9. In the result, the order passed by the learned Assistant Commissioner of Labour in W.C. Case No.400 of 1995 dated 04.04.1997 is set aside. Accordingly, the appeal is allowed-in-part. There shall be no order as to costs. ___________________ R.KANTHA RAO, J 30th OCTOBER 2009 CVRK