IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE 22nd DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.451 OF 2005 Between: The National Insurance Company Limited, Rep. by its Divisional Manager, Abids, Hyderabad. …Appellant A n d Md. Jameer @ Mohammed and another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.451 OF 2005 JUDGMENT: This appeal is directed against the order dated 13-09-2004 in W.C.No.49 of 2004, on the file of the Commissioner for Workmen’s Compensation, Hyderabad, wherein the claim of the first respondent herein was allowed-in-part awarding compensation of Rs.1,30,194/-. 2. Heard the learned counsel for the appellant/insurer and the learned counsel for the respondent. Perused the records. 3. The first respondent herein filed the claim application seeking compensation of Rs.2 lakhs on account of the injuries sustained by him in a motor vehicle accident that occurred on 21-08-2003 when the lorry bearing No. AP 16 V 2795 met with an accident. The applicant is stated to be working as cleaner of the said lorry belonging to the second respondent herein and he sustained injury in the course of employment. According to the claimant, he sustained grievous injuries on the head, fracture of ribs and abdomen and also hip bones. He was shifted to Sri Chatrapathi Shivaji Maharaj General Hospital, Sholapur where he took treatment as in patient and subsequently shifted to a private hospital at Hyderabad. A case in Cr.No.192 of 2003 was registered. He claimed to be 35 years by the date of accident and earning Rs.3,000/- per month. The appellant herein, the second respondent, opposed the claims. The claimant was examined as P.W.1 and Dr.G.Subhash Rao, the doctor who treated him was examined as P.W.2 and Exs.A-1 to A-11 were marked on his side. No oral evidence was adduced by the opposite parties, but attested true copy of insurance policy was marked. 4. On a consideration of the evidence available on record, the learned Commissioner assessed the compensation at Rs.1,28,936/- by calculating the loss of earnings at 60% of monthly wages and applying the multiplier 197.06. Aggrieved by the said award, the insurer filed the present appeal. 5. The learned counsel for the appellant would contend that even as per the evidence of P.W.2, the doctor, the claimant was having disability of only 50% and the learned Commissioner erred in taking the same at 60%. He would further contend that even the percentage of disability of 50% stated by P.W.2 was only regarding physical disability and there was no assessment as to the loss of earning capacity and as per Schedule I, even in case of amputation, the percentage of loss of metatarso- phalangeal joint to both feet, the earning capacity is only 40% and fracture of the bone cannot stand on a higher pedestal than in the case of amputation. 6. The learned counsel for the respondent- applicant, on the other hand, would contend that the injury sustained is not covered by Schedule I and as per Section 4(1)(c)(ii) of the Workmen’s Compensation Act (for short ‘the Act’) in case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury, shall be taken into consideration. 7. As per the evidence of P.W.2 and disability certificate-Ex.A-10 issued by him, the claimant sustained two fracture injuries - one on the 4th and 5th metatorsals of left foot and the other fracture of left iliac crest. According to P.W.2, the applicant developed painful limitation of right foot and hip due to which he will have difficulty in walking and he will not be able to sit on the ground and cannot do heavy work. P.W.2 further deposed that the applicant will not be able to perform as perfectly as he was doing prior to the accident. P.W.2 has estimated the partial permanent disability at 50%. It is to be noted that the disability assessed by P.W.2 and noted in Ex.A-10 is only to the extent of physical disability. There is no assessment of percentage of loss of earning capacity by P.W.2 on account of the above said disability sustained by P.W.1. Section 4(1)(c)(ii) of the Act contemplates payment of compensation in the case of an injury not specified in Schedule I on the basis of loss of earning capacity as assessed by the qualified medical practitioner proportionate to compensation payable in the case of permanent total disablement. Explanation II to the above said Section states that in assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I. In the present case, there is no assessment of loss of earning capacity at all by P.W.2. As per Schedule I, the provisions will have to be kept in mind while assessing the loss of earning capacity in view of Explanation II. The loss of earning capacity even in the case of loss of all toes of one foot is 20% and loss of all toes of both feet is 40%. Though the injury sustained by P.W.1 is not covered by Schedule-I, still in view of the provisions contained in Section 4(1)(c)(ii) of the Act and explanation of the Act, the percentage of loss of earning capacity on account of fracture of metatorso bone cannot exceed 20%, as the fracture is only of one foot. The applicant, however, sustained another fracture of iliac crest bone. Hence, it is considered just and proper to estimate the loss of earning capacity by taking 30% of the wages. It is not disputed that the applicant was aged 35 years and the minimum rate of wages payable to cleaner as per the relevant Government Order in force at the time of accident was Rs.2,181/- including VDA. Thus, applying the suitable multiplier 197.06 and taking the loss of earning capacity at 30% over the monthly wages taken at Rs.2,181/-, the compensation works out to Rs.64,468/-. By adding the amount of court fee of Rs.258/- and advocate fee of Rs.1,000/-, the applicant is entitled for a total amount of Rs.65,726/- (Rs.64,468/- + Rs.258/- + Rs.1,000/-). It is stated that the insurer had already deposited the entire amount of compensation awarded by the Tribunal within time and the applicant had also withdrawn 50% of the same. The question of payment of interest, therefore, does not arise. The insurer is entitled for refund of the balance amount after payment of the compensation as modified supra. 8. In the result, the appeal is allowed, modifying the award passed by the learned Commissioner, as stated above. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 22nd October, 2009. Lrkm.