1. The instant appeal has been filed by the appellant/Opposite Party No.2 (for short ‘OP(2)’)-Insurance Company challenging the order, dt.28.10.2024 in WC.No.01 of 2013(NF) passed by the Commissioner for Employees Compensation & Deputy Commissioner of Labour, Mahabubnagar, (for short ‘the Commissioner’), in granting a sum of Rs.2,43,278/- towards compensation to the 1st respondent/applicant.

2. For brevity and better understanding of the case, the parties will hereinafter be referred as they are arrayed before the Commissioner.

Brief facts of both the case:

3. The applicant filed an application under Section 22 of the Employees’ Compensation Act, 1923 (for short ‘the Act’) claiming compensation of Rs.5,00,000/- for the injuries sustained by him, during the course of his employment as a cleaner on lorry bearing No.AP 24 Y 6646 belonging to Opposite Party No.1 (for short ‘OP(1)’).

4. On the fateful day, i.e., on 08.06.2011, the applicant went to Chennai on the direction of his employer i.e., OP(1) and while returning, he met with an accident on the outskirts of Budharam(V) in the limits of Chillakur P.S., where a lorry coming from the opposite direction him, as a result, the applicant sustained severe injuries on his both legs and he lost his fingers of his leg for which he suffered amputation. Immediately after the accident, he was admitted in GCH Gudur for treatment and subsequently underwent medical treatment in private hospitals and thus he had spent Rs.1,00,000/- for treatment.

5. The police, Chillakur P.S. had registered a case in Crime No.104 of 2011 under Section 307 of IPC and conducted investigation.

6. The applicant contended that as on the date of incident, he was hale, healthy and working as cleaner under Opposite Party(1) and on account of the injuries sustained in the accident, he lost his earning capacity, suffered mental agony and thus claimed compensation of Rs.5,00,000/-. It was further contended that Opposite Parties No.1 and 2 being the owner and insurer of the subject vehicle are jointly and severally liable to pay the compensation to the claimants.

7. The OP(1) having received notice, did not turn up and as such, he was set ex-parte.

8. The OP(2) filed disputing the very employment of the application with OP(1) and his having met with the accident in the course of his employment, his physical disability and his wages and therefore contended that applicant is not entitled to compensation and prayed to dismiss the application.

9. Before the Commissioner, applicant examined AW1 and AW2 and marked Exs.A1 to A4. On the other hand, OP(2) did not examine any witness, however marked Ex.B1.

10. The Commissioner after considering the oral and documentary evidence on record, while holding that the applicant-injured sustained injuries in the accident arising out of and in the course of his employment with the Opposite Party(1), granted compensation of Rs.2,43,278/- payable by Opposite Parties 1 and 2 jointly and severally.

11. Challenging the same, the instant appeal has been filed by the OP(2)-Insurance Company.

12. Heard Sri Srinivasa Rao Vutla, learned Standing Counsel for the appellant appearing through Virtual Mode, and Sri K.Venkatesh Gupta, learned counsel for 1st respondent/applicant through Virtual Mode.

13. Learned counsel for the appellant mainly disputed the employee-employer relationship between the applicant and OP(1), as no proof of such relationship was produced by the applicant and therefore, the underlying application is not maintainable and liable to be dismissed, and thus, prayed to allow the appeal by setting aside the order of the Commissioner.

14. On the other hand, learned counsel for the applicant contended that the Commissioner has not committed any error in coming to the conclusion that the applicant is the employee of OP(1) and that he met with accident during the course of his employment and sustained injuries and thus entitled to compensation. He further contended that though the Commissioner had rightly granted interest @ 12%, however erred in granting the same for one year from the date of accident, instead of granting the same from the expiry of one month from the date of the accident till the date of actual payment and thus prayed to grant the same.

15. I have given earnest consideration to the submissions made on either side and perused the material on record.

16. The point that needs to be considered in this appeal is: Whether the applicant has established the existence of an employer–employee relationship with Opposite Party No.1, and if not, whether the claim petition was maintainable and the Commissioner was justified in awarding compensation?

CONSIDERATION BY THE COURT:

17. The main grievance of the appellant is that there is no jural relationship of employer-employee between the applicant and OP(2) and as such the application is not maintainable and is liable to be dismissed.

18. Admittedly, in support of the said contention, no oral evidence was adduced by OP(2)-Insurance Company. The mere assertion, without any supporting oral or documentary evidence, is wholly insufficient to substantiate such a plea.

19. Moreover, the Insurance Company did not examine Opposite Party No.1, the owner of the offending vehicle, whose evidence would have been material to establish whether the applicant was employed under him at the relevant point of time. Having specifically disputed the employer–employee relationship, the burden lies upon the Insurance Company to substantiate its defence by examining the owner or, at the very least, by taking appropriate steps to summon him before the Commissioner. Admittedly, no such effort was made. The failure to examine the best available witness warrants an adverse inference against the appellant.

20. In the absence of any convincing rebuttal evidence adduced by the Insurance Company, and having regard to the fact that Opposite Party No.1, the owner of the offending lorry, remained ex parte without disputing the applicant's claim or denying that the applicant was employed as a cleaner under him, the evidence on record clearly establishes that the applicant was working as a cleaner under Opposite Party No.1 on the insured lorry and sustained injuries in the accident arising out of and in the course of his employment.

21. In view of the above, in the considered opinion of this Court the Commissioner, upon proper appreciation of the oral and documentary evidence, rightly concluded that the injuries sustained by the applicant arose out of and in the course of his employment as a cleaner of the said lorry. In the absence of any cogent evidence to the contrary, this Court finds no perversity or illegality in the said finding and the conclusion reached by the Commissioner does not warrant interference in this appeal.

22. As regards the disability claimed by the applicant, A.W.2, Dr. Chakradhar Goud, Orthopaedic Surgeon, deposed that having regard to the nature of the injuries sustained by the applicant, he was physically fit to continue his previous work as a cleaner, which is essentially non-technical in nature. According to the doctor, the injuries did not render the applicant totally incapable of performing his duties as a cleaner.

23. The Commissioner, however, did not accept the opinion of A.W.2. On an overall consideration of the nature of the injuries, the treatment undergone by the applicant and the discomfort and difficulty that may continue even after recovery, the Commissioner observed that, though the applicant was not totally disabled from working as a cleaner, the injuries would affect his efficiency in performing the strenuous duties attached to the said work. Taking these aspects into consideration, the Commissioner assessed the loss of earning capacity at an appropriate percentage and awarded compensation. This Court finds no valid reason to interfere with the said finding, as it is based on the evidence available on record and is neither arbitrary nor unreasonable.

24. As regards the quantum of compensation, in the absence of any documentary evidence establishing the applicant's actual monthly wages, the Commissioner rightly adopted Rs.3,370/- per month as the minimum wages payable to a cleaner in the scheduled employment and, after adding the applicable VDA of Rs.1,984/-, determined the monthly income of the applicant at Rs.5,354/-. Considering the age of the applicant as 20 years on the date of the accident, the Commissioner applied the relevant factor of 224 as prescribed under Schedule IV of the Act and computed the compensation at Rs.2,15,873/- (30/100 × 60/100 × 5354 × 224), which in the considered view of this Court is just and reasonable and needs no interference.

25. However, the Commissioner awarded simple interest at 12% per annum under Section 4A(3)(a) of the Act only for a period of one year commencing from 08.06.2011 i.e., the date of the accident, and quantified the same at Rs.25,905/-. Strictly speaking, interest ought to have been awarded from the expiry of one month after the date of the accident till the date of actual payment, as contemplated under the Act.

26. Though the learned counsel appearing for the applicant requested this Court to modify the award insofar as the grant of interest is concerned by directing payment of interest at 12% per annum from the expiry of one month after the date of the accident till the date of actual payment, however, in the absence of any independent appeal or cross-objections filed by the applicant challenging the said portion of the award, this Court cannot grant a relief that would place the applicant in a better position than under the impugned award. Consequently, no interference is called for with the Commissioner's determination regarding interest.

27. In view of the above findings, the appeal is DISMISSED confirming the order, dt.28.10.2024 in WC.No.01 of 2013(NF) passed by the Commissioner for Employees Compensation & Deputy Commissioner of Labour, Mahabubnagar. No costs.

As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.