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Divisional Manager, New India Assurance Co. Ltd., Kamarajar Salai, Madurai v/s Maheswaran & Another

    C.M.A.(MD) No. 739 of 2020

    Decided On, 10 February 2022

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE RMT. TEEKAA RAMAN

    For the Appellant: J.S. Murali, Advocate. For the Respondents: R1, N. Sudhagar Nagaraj, Advocate



Judgment Text

(Prayer: Civil Miscellaneous Appeal filed under Section 30 of the Workmen’s Compensation Act against the Award made in E.C. No.202 of 2008, dated 13.10.2020, on the file of the Commissioner for Employees’ Compensation Court (Commissioner of Labour), Madurai (which was received by the Appellant/Insurance Company on 5.11.2020, vide enclosed cover).

Judgment

1. This Civil Miscellaneous Appeal is directed against the award made in E.C. No.202 of 2008, dated 13.10.2020, on the file of the Commissioner for Employees' Compensation Court (Commissioner of Labour), Madurai.

2. The Insurance Company is the Appellant herein challenging the Award passed under E.C. No.202 of 2008 claiming Compensation under the Employees' Compensation Policy issued by the Appellant herein for the loss of one finger in the right hand.

3. Heard the learned Counsel for the Appellant/Insurance Company and the learned Counsel for the First Respondent/Claimant and produced the materials placed before this Court.

4. The lower Court record reveals that originally E.C. No.202 of 2008 is dismissed for default on 18.12.2014 and as per Order made I.A. No.31 of 2020, the same was restored to file on 28.9.2020. The Tribunal, after consideration of both oral and documentary evidence, taking note of the evidence of PW2/Doctor and documents marked as Ex.P4-Discharge Summary and Ex.P5-Wound Certificate, has assessed the disability at 42.86%, applied the factors and awarded Compensation.

5. The learned Counsel for the Appellant/Insurance Company contend that the alleged injury was not sustained during and in the course of employment and the relationship between the Employer and Employee is not established in the manner known to law and the Compensation awarded by the Tribunal is exorbitant and it is not in terms of Serial No.9, Part-II of Schedule-I. If at all, they can give only 20% of disability.

6. After considering the rival submissions and also taking note of the evidence of PW2/Dr. Sankarlal and Ex.P4-Discharge Summary and Ex.P5-Wound Certificate, it appears that the Tribunal had fixed the disability at 42.86%. On re-appreciation of evidence, I find that the calculation was not done in accordance with the Employees' Compensation Act for the loss of two fingers and 20% loss of earning has been fixed in Serial No.9, Part-II of Schedule-I of the Act and accordingly, the award is modified to that extent. The learned Counsel for the Appellant further contended that the injuries sustained is not in accordance with the employment, since he was cleaning the Conveyor Belt. After perusing the Policy, which reads as under:

7. Hence, I find that the decision cited before the Tribunal namely, C.M.A. No.360 of 1997, dated 29.11.2005 is not applicable to the facts of the present case and the said contention stand negatived. Since the Sub-Contract has been engaged, who has taken the policy, the relationship of Employer and Employee stand established. Accordingly, the Compensation is modified and the same is reduced from Rs.1,40,150 to Rs.65,399,04 (Rs.2,433 x 60/100 x 224.00 x 20.00/100 = Rs.65,399,04).

8. The Civil Miscellaneous Appeal is party allowed to the extent, as indicated above. Since the Employee/Claimant has remained ex parte before the Tribunal, he is not entitled for the interest during which period he remained absent. The rate of Interest remains unchanged.

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Since the Appellant/Insurance Company has already deposited the entire award amount as directed by the Tribunal, the Claimant is permitted to withdraw the modified Award amount with accrued Interest and Costs, less the Award amount, if any already withdrawn. The Tribunal is directed to refund the excess award amount with accrued Interest to the Appellant/Insurance Company. No Costs.
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