1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.09.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.891 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 The Divisional Manager Bajaj Allianz General Insurance Company Ltd., Divisional Office,Khadi Bhavan, II Floor, 108, T.P.K. Main Road, Madurai – 625 001. .. Appellant/2nd Respondent Vs. 1.Mahendra Perumal ..Respondent/Petitioner 2.Subburaj Lorry Service, 67, East Veli Street, First Floor,Madurai – 1. .. Respondents/1st Respondent Civil Miscellaneous Appeal has been filed under Section 30 of the Workmen's Compensation Act, against the award dated 11.04.2011 passed in W.C.No.47 of 2009 by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai. For Appellant .. Mr.S.Srinivasa Raghavan For Respondents.. No appearance JUDGMENT The award dated 11.04.2011 passed in W.C.No.47 of 2009 by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai is being challenged in the present Civil Miscellaneous Appeal. 2. The first respondent herein as petitioner has filed W.C.No.47 of 2009 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai praying to pass an award with regard to the amount mentioned therein, wherein the present appellant and the second respondent have been shown as respondents. 3. It is stated in the petition that the petitioner has served under the first respondent as driver of the lorry bearing Registration No.TN-59-AF-1182. On 30.06.2008 accident has happened on Omalur – Dharmapuri Main Road. Due to accident, the petitioner has sustained multiple injuries including fractures. The vehicle, which involved in the accident has been insured with the second respondent. Under the said circumstances, the present petition has been field for getting compensation as claimed therein. 4. On the side of the second respondent a detailed counter has been filed, wherein it has been stated that the petitioner has claimed excessive compensation and further the petitioner has to prove that employer and employee relationship has been in existence between him and https://hcservices.ecourts.gov.in/hcservices/ 2 first respondent at the time of accident and there is no merit in the petition and the same deserves to be dismissed. 5. On the basis of the available evidence on record, the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai has awarded compensation of Rs.3,35,570/- and fixed the entire liability upon the second respondent. Against the quantum fixed by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai, the present civil miscellaneous appeal has been preferred at the instance of the second respondent as appellant. 6. Even though, the respondents have been served with the summons, appearance has not been made. Under the said circumstances, the present Civil Miscellaneous Appeal is disposed of on merits on the basis of the contention putforth on the side of the appellant/second respondent. 7. The learned counsel appearing for the appellant/second respondent has attacked the quantum of award passed by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai on the following grounds: (a) The petitioner has lost his great toe in his right leg and he also sustained fractures in his right thigh and right hip. But the doctor, who examined him has given disability exorbitantly to the tune of 67.24 percentage and the same is not in consonance with Part II of Schedule I of the Workmen's Compensation Act, 1923. (b) The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai without considering the guiding factors mentioned in Part II of Schedule I of the said Act has erroneously fixed 64 percentage of disability and the same is against law and therefore the quantum of compensation fixed by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai is totally erroneous. 8. In fact, this Court has perused the entire available evidence on record and ultimately found that the petitioner has had amputation of his right great toe and he also sustained fractures in his right thigh as well as in his right hip. The doctor, who has given Disability Certificate adduced evidence to the effect that the petitioner has sustained disability to the extent of 67.24 percentage. The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai without considering the nature of amputation as well as fractures sustained by the petitioner has in hypothesis fixed 64 percentage disability. 9. The learned counsel appearing for the appellant/second respondent has befittingly drawn the attention of the Court to Part II of Schedule I of the Workmen's Compensation Act, 1923, wherein it has been clearly mentioned the lawful percentage of disability to be given to each deformity including fractures and amputation, etc. As rightly pointed out on the side of the appellant/second respondent, neither the doctor who issued Disability Certificate nor the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai has https://hcservices.ecourts.gov.in/hcservices/ 3 followed the norms fixed in Part II of Schedule I of the said Act. Since clear cut norms have been fixed in Part II of Schedule I of the said Act, the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai is bound to follow the same for fixing percentage of disability on the basis of amputation as well as fractures sustained by the petitioner. But the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai has simply fixed 64 percentage of disability mainly on the basis of amputation, fractures and ailment suffered by the petitioner. The method adopted by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai for fixing percentage of disability is totally against the norms fixed in Part II of Schedule I of the said Act. Therefore the quantum of compensation fixed by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai is totally erroneous and the same is liable to be set aside and the matter is liable to be remitted to the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai. 10. In fine, this Civil Miscellaneous Appeal is allowed without costs and the order passed in W.C.No.47 of 2009 by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai is set aside and W.C.No.47 of 2009 is remitted to the file of the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai. The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai is directed to give proper notice to the parties and dispose of W.C.No.47 of 2009 in accordance with law indicated supra. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(AE) /TRUE COPY/ Sub assistant Registrar To The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour),Madurai. Copy to: The Section Officer, VR Section, Madurai Bench of Madras High Court,Madurai. +1cc to Mr.S.Srinivasa Raghavan, Advocate SR.No.29824 C.M.A(MD)No.891 of 2011 and M.P(MD)No.1 of 2011 smn PA/19.09.2011/3P/4C https://hcservices.ecourts.gov.in/hcservices/