IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.3699 of 2010 M.P.Nos.1 of 2010 and 1 of 2011 The New India Assurance Company Limited, No.251, Thiruvottiyur High Road, IInd Floor, Tondiarpet, Chennai – 600 021. ... Appellant Versus 1.S.Tavasi 2.M.Sekar ... Respondents Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 27.10.2010 passed in W.C.No.582 of 2008 on the file of the Commissioner for Workmen's Compensation-2, Deputy Commissioner of Labour-2, Teynampet, Chennai – 600 006. For Appellant : Mr.R.Sivakumar For Respondents: Mr.V.Venkatesan - - - J U D G M E N T The above appeal has been filed by the appellant / New India Assurance Company Limited, against the judgment and decree dated 27.10.2010 passed in W.C.No.582 of 2008 on the file of the Commissioner for Workmen's Compensation-II, Deputy Commissioner of Labour-II, Teynampet, Chennai. 2.The short facts of the case are as follows:- On 01.05.2008, at about 09.00 a.m., when the claimant was breaking the stone in the course of employment under the first opposite party, a piece of stone hit on the left side eye of the claimant. Immediately, he was taken to the Opthalmic Hospital, Egmore, Chennai, wherein he had undergone treatment from 28.05.2008 as inpatient. Thereafter, he had undergone treatment from 16.06.2008 https://hcservices.ecourts.gov.in/hcservices/ to 19.06.2008 at Sankar Nethralaya Hospital, Chennai. Supporting his claim petition, he had marked six documents viz., Ration Card, Voter Identity Card, Discharge Medical Summary, Shankara Nethralaya Hospital documents, Advocate notice and a copy of the Insurance Policy. On the side of the claimant, the doctor was examined as PW2. On the side of the respondents, no witness, no documents. 3.But, the second opposite party i.e., New India Assurance Company has filed a counter statement and opposed the claim petition. The respondent stated that there was no relationship between the applicant and first opposite party as employer-employee relationship. The respondent further stated that at the time of employment, the claimant did not wear headgear and safety glasses, while discharging his duty. Therefore, the negligence is committed by the applicant. As such, the Insurance Company is not liable to pay compensation. The respondent admitted that the employees of first opposite party were insured with the second opposite party and that this was in force from 18.02.2008 to 17.05.2008. 4.The applicant had adduced evidence stating that he was working under the first opposite party and was earning Rs.6,000/- per month. On 01.05.2008, when he was doing work at the Stone quarry, at that time, a piece of stone hit on his left eye. Due to the injuries, he had undergone treatment at Government Hospital, Egmore and at Sankara Nethralaya, as inpatient. At the time of accident, his age was 30 years. PW2, the doctor had adduced evidence stating that the applicant's left eye membrane was torn and as such he had lost his vision. He assessed the disability at 40%. 5.On considering the evidence of the witnesses and counter statements of both parties, the learned Deputy Commissioner of Labour-II had assessed the compensation at a sum of Rs.1,99,661/- (60/100 x 4000 x 207.08 x 40/100) and awarded this to the applicant. 6.Aggrieved by the said award, the New India Assurance Company Limited has filed the above appeal. 7.The learned counsel for the appellant argued that there was no employer-employee relationship between the applicant and first opposite party. Besides no case was registered regarding the accident by the concerned Police Officer. The applicant and first opposite party have colluded and have claimed the compensation, which is not bona-fide. The doctor assessed the disability at 40% and this is also not believable. The Tribunal fixed the income of the applicant as Rs.4,000/- in the absence of documentary evidence. There was no F.I.R., which is a vital document in the instant case. 8.The learned counsel for the applicant argued that the applicant is an illiterate and he was depending on his hard work to earn his living, by way of doing quarry work. While he was breaking https://hcservices.ecourts.gov.in/hcservices/ the stone with a heavy weight hammer, a piece of stone hit on his eye. As such, the accident had happened and he had lost his vision of his left side eye. In order to prove the accident, two medical records were marked, which were issued by the Eye Hospital, Egmore and another Eye Hospital, viz., Shankara Nethralaya. The doctor had examined the applicant and verified the documents and certified that the applicant had sustained 40% disability of vision in his left eye. The accident happened in the year 2008. Therefore, as per Minimum Wages Act, the applicant's income was fixed at Rs.4,000/-. In order to prove the age of applicant, voter identity card was marked. On the basis of this evidence and documentary evidence, the Tribunal had decided six issues in favour of the applicant. The issues are as follows:- (i)Whether the applicant had worked under the first opposite party? (ii) If so, whether the accident happened in the course of employment? (iii)What is the age and salary of applicant? (iv)What is the loss of earning capacity to the applicant? (v)What is the quantum of compensation which the applicant is entitled to receive? (vi)By whom should the compensation be paid? The learned counsel further argued that the six issues mentioned above were decided in favour of the applicant and compensation was awarded and as such the award is a well considered one. 9.Per contra, the learned counsel for the Insurance Company argued that there was no crystal clear evidence regarding salary paid by the first opposite party. The first opposite party had not come forward to establish that the accident had happened in the course of employment at his quarry site. 10.On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the learned Deputy Commissioner of Labour-II, Chennai had properly assessed the compensation and decided on liability on the basis of medical records and doctors evidence and scrutiny of insurance policy and subsequently the award was passed. Therefore, this Court confirms the award passed in W.C.No.582 of 2008 by the Deputy Commissioner of Labour-II, Teynampet, Chennai, dated 27.10.2010. 11.It is open to the claimant to withdraw the entire compensation amount lying in the credit of W.C.No.582 of 2008 on the file of Commissioner for Workmen's Compensation-II, Deputy Commissioner of Labour-II, Teynampet, Chennai, after filing a Memo along with this order. https://hcservices.ecourts.gov.in/hcservices/ 12.Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree passed by the Commissioner for Workmen's Compensation-II, in W.C.No.582 of 2008, dated 27.10.2010 on the file of Deputy Commissioner of Labour-II, Teynampet, Chennai is confirmed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. r n s Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Commissioner for Workmen's Compensation-2, Deputy Commissioner of Labour-2, Teynampet, Chennai – 600 006. + 1 cc to Mr. R. Sivakumar, Advocate SR No.37229 + 1 cc to Mr. V. Venkatesan, Advocate SR No.37706 TRM(CO) SR/7.9.2011 ORDER MADE IN C.M.A.No.3699 of 2010 https://hcservices.ecourts.gov.in/hcservices/