HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2845 of 2003 Date: 10-12-2010 Between J.Surya Prakasa Reddy … Appellant/Applicant and Raya Peda Narasa Reddy and another … Respondents/Opposite Parties HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2845 of 2003 Judgment: This appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the W.C. Act’) aggrieved by the order dated 09-5-2003 in W.C.No.118 of 2002 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-1, Guntur, whereby the application filed by the appellant under Section 22 of the W.C. Act was dismissed. 2. The facts that gave rise to this appeal are as under: The appellant was employed as driver of the lorry bearing No.AP7T-1787 belonging to the 1st respondent, which was insured with the 2nd respondent-insurer. During the course of his employment, he met with an accident and sustained injuries. The appellant filed the application claiming compensation of Rs.3,00,000/-. 3. The 1st respondent, owner of the lorry, admitting the employment and the injuries sustained by the appellant while he was working as driver of the lorry bearing No.AP7T-1787, contended that the lorry was insured with the 2nd respondent-insurer and therefore, the 2nd respondent-insurer is liable to pay compensation. 4. The 2nd respondent-The New India Assurance Company Limited contended that the lorry involved in the accident was not insured with it at the time of accident and also denied the alleged accident. 5. On behalf of the appellant, A.Ws.1 and 2 were examined and marked Exs.A-1 to A-6. The respondents did not choose to adduce any oral or documentary evidence. 6. Considering the evidence on record, the Commissioner dismissed the claim application of the appellant on the ground that as per the evidence of A.W.2 Dr. G.Vara Prasada Rao, the appellant can drive a Light Motor Vehicle and also on the ground that his personal examination of the appellant in the open Court revealed that the injuries are healed and he is able to drive the light motor vehicle as per the evidence of the doctor and there was no loss of earning capacity. 7. Learned counsel for the appellant submitted that though there was a finding by the Commissioner that the appellant sustained injury and the percentage of disability is 20% as per the medical evidence, the Commissioner ought to have awarded some amount towards compensation under the W.C. Act. 8. In support of his contention, learned counsel for the appellant relied on a decision of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. v. Mohd. Nasir[1]. In the above case, the Commissioner found that although the workman had suffered 15% disability but loss of earning capacity was 100% and allowed the compensation accordingly. The High Court dismissed the appeal. C.M.O., had examined the workman but no disability certificate was granted. Workman admitted that he had not suffered any permanent disability. No qualified medical practitioner has opined that there was a permanent and complete loss of use of his right leg or that he has become totally unfit to work as a driver. The Hon’ble Supreme Court held that the workman is not entitled to compensation at 100% disablement and compensation at 15% disablement is admissible. 9. Relying on the above decision, learned counsel for the appellant submitted that the appellant is entitled for some amount of compensation for the injuries sustained by him during the course of his employment and also on account of the disability. 10. In this context, it is relevant to extract the evidence of A.W.2. A.W.2 has stated that, “the applicant sustained fracture of lower end of radius with displacement and the disability of the appellant is at 20%, which is permanent and partial. It is difficult to drive the lorry but he can drive the Light Motor Vehicles. Still he is having pain.” 11. It seems, relying on the evidence of A.W.2 the claim petition of the appellant was dismissed. However, the medical evidence produced by the appellant clearly indicates that he sustained fracture of lower end of radius with displacement and the percentage of the disability is 20%. A.W.2 the doctor further stated that the appellant cannot drive a lorry but he can drive Light Motor Vehicles. 12. Admittedly, the accident took place while the appellant was driving the lorry belonged to the 1st respondent during the course of employment. It is also an admitted fact that in view of the medical evidence he sustained fracture of lower end of radius with displacement. It is also an admitted fact that on account of the injury sustained by the appellant he cannot drive a lorry or a Light Motor Vehicle for some time, due to disability. 13. As per the medical evidence, the percentage of disability sustained by the appellant is 20%. The doctor A.W.1 has stated in his evidence that the appellant cannot drive a lorry, which is a Heavy Motor Vehicle but he can drive Light Motor Vehicles. The appellant being the driver of a Heavy Motor Vehicle lost his earning capacity due to the disability and he became unfit to drive Heavy Motor Vehicles though he could be able to drive Light Motor Vehicles as per the medical evidence, he cannot get salary which he was getting by driving a Heavy Motor Vehicle thereby he was deprived of the monthly income and daily batta. Admittedly, by driving Light Motor Vehicles he would get less income than he was getting by driving Heavy Motor Vehicles. 14. Therefore, taking into consideration the percentage of disability sustained by the appellant at 10%, monthly income of Rs.2,000/- and since he was aged 45 years at the time of accident applying the relevant age factor at ‘169.44’, he is entitled to the compensation of Rs.20,333/- (Rs.2,000/- X 60/100 X 169.44 X 10/100). 15. In the result, the civil miscellaneous appeal is allowed in part and the impugned order is set aside, directing the respondents to pay jointly and severally a sum of Rs.20,333/- (Rupees twenty thousand, three hundred and thirty three only) towards compensation to the appellant with interest at the rate of 7% per annum from the date of filing of the application till the date of order and thereafter, at the rate of 12% per annum from the date of order till payment, in the circumstances, without costs. ___________________________ JUSTICE V.SURI APPA RAO 10th December, 2010. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2845 of 2003 10th December, 2010. [1] 2009 ACJ 2742