IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.3740 of 2003 Between: United India Insurance Company Limited, Basheerbagh, Hyderabads .. Appellant AND B. Pradeep Kumar and another .. Respondents JUDGMENT: The appeal is directed against the order of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad-II in W.C.No.23 of 2003 dated 14-08-2003. The 1st respondent herein claimed to be employed by the 2nd respondent as a labourer on his goods Auto No.AP-09-CMTR- 121. He was claimed to be proceeding as such in the auto on 29- 10-2002 at about 6.00P.M., after unloading the goods and near the culvert crossing of NSF road, in spite of the auto trolley taking an extreme left turn to avoid a speeding jeep coming on the opposite side, the auto trolley turned turtle and fell on the left leg of the 1st respondent herein. The 1st respondent herein received fractures, crush injury, head injury and other multiple injuries and was treated at Gandhi Hospital, Secunderabad, as inpatient. His left leg was amputated making him permanently disabled by cent percent, and therefore, he claimed a compensation of Rs.3,50,000/- for the consequences of the injuries suffered during the course of his employment basing the same on his age of 25 years and monthly salary of Rs.3,000/-. The police of Metpally were stated to have registered Crime No.196 of 2002 about the incident. While the owner of the vehicle did not contest the claim, the insurer/the appellant denied the claims of the 1st respondent herein. The Commissioner during the enquiry examined the claimant and marked Exs.A.1 to A.6 and Ex.B.1. The Commissioner rendered the impugned order noting that the merits of the case remained unaffected by any delay in the lodging of First Information Report and observed that it was on the instructions of Gandhi Hospital authorities that the eye-witness reported to the police. The Commissioner found that he has territorial jurisdiction to try the case and that the 1st respondent herein cannot be made responsible for any omission in Ex.A.2- discharge card, which did not refer to a road traffic accident. Similarly, the non-appearance of the owner of the vehicle/the employer was also considered not to prejudice the employee and the amputation of the left leg was considered to be inflicting a total permanent disability of 100%. The Commissioner referred to judgments rendered by this Court and the Supreme Court in this regard and taking his wage as the statutory minimum wage in the absence of proof of the alleged income, the Commissioner applied the age factor on the age of 25 years as mentioned in the discharge card and the disability certificate and arrived at a total compensation of Rs.2,68,710/-. The insurer challenged the order in this appeal contending that the master and servant relationship was not established, the valid driving licence and subsisting insurance policy concerning the auto were not produced and the First Information Report was registered after the amputation. The involvement of the insured vehicle in the accident was thus not proved and hence, the insurer claimed that questions of law arise relating to the master and servant relationship, the involvement of the insured vehicle, delay in the First Information Report, 100% loss of earning capacity etc., and hence, the insurer desired the order to be reversed. Sri Srinivasa Rao Vutla, learned standing counsel for the appellant and Sri K. Jagathpal Reddy, learned counsel for the 1st respondent are heard and the 2nd respondent was unrepresented before this Court. The point for consideration is whether the impugned order is susceptible for interference on any of the questions raised by the insurer terming them as questions of law. Sri K. Jagathpal Reddy, learned counsel for the 1st respondent-employee, firstly relied on Pratap Narain Singh Deo v. Srinivas Sabata and another[1] to contend that total disablement was held by the Apex Court to be of such a nature as to incapacitate the employee for all work which he was capable of performing at the time of accident. The learned counsel also brought to notice that in S. Suresh v. Oriental Insurance Co. Ltd., and another[2], the said interpretation in the earlier decision was followed and amputation of the right leg of the employee below knee, rendering him unfit for the work of a driver, which he was performing at the time of the accident resulting in such disablement was construed to have resulted in 100% loss of earning capacity. On the other hand, Sri Srinivasa Rao Vutla, learned counsel for the appellant relied on Ramprasad Balmiki v. Anil Kumar Jain and others[3] wherein Pratap Narain Singh Deo v. Srinivas Sabata and another (1st supra) was also referred to and the Apex Court held that the extent of permanent disability being taken as 40% and not 100% in respect of shortening of leg was not incorrect. However, the evidence of the doctor in that case was not disclosing that the employee had become unfit for the work of a driver forever. The learned counsel also referred to Oriental Insurance Company Limited v. Mohd. Nasir and another[4] wherein also there was no material on record to show any opinion of a qualified medical practitioner about a permanent and complete loss of use of right leg or that the workman became totally unfit to work as a driver. The Apex Court had in fact noted that in determining the amount of compensation, several factors are required to be taken into consideration and functional disability has direct relationship with the loss of limb. The employee therein had also no disability certificate and it was thus more on facts that the disability was refused to be considered as 100%. Learned standing counsel for the appellant further referred to Palraj v. Divisional Controller, NEKRTC[5] wherein the Apex Court observed that though the employee has lost the use of his legs for the purpose of driving a vehicle, which could be said to be total disablement so far as the driving of the vehicle is concerned, he is in a position to earn other than by functioning as a driver which in fact he has currently been doing as he has been posted as peon by the employer. The percentage of functional disablement was, therefore, modified as it was confused with the percentage of loss of earning capacity by the Commissioner. Thus, it is seen that it is more due to the injuries suffered by the workman being not scheduled injuries and the workman being employed as a peon by the employer instead of as a driver that the Apex Court considered the disablement to be not 100% disablement in respect of loss of earning capacity. A perusal of the various precedents, therefore, indicates that the percentage of functional disability and the consequential percentage of loss of earning capacity depend on the facts and circumstances proved by the oral and documentary evidence on record in each case and in the present case, after the amputation the fact that the claimant was incapacitated for all work which he was capable of performing at the time of the accident cannot be in doubt and if he was rendered unfit for the work, which he performed at the time of the accident resulting in the disablement, it can possibly be construed as 100% loss of earning capacity. Therefore, in the face of the evidence of the 1st respondent herein before the Commissioner remaining uncontroverted by any evidence for the owner or the insurer of the vehicle and in the face of the circumstances disclosed by Ex.A.2-discharge card, Ex.A.5- photos with negatives and Ex.A.6-original disability certificate corroborating the claims of the applicant about 100% disability accepted by the Commissioner on the broad human probabilities arising out of the evidence, interference with the same in this appeal without involvement of any legal issue in such finding will be unjust and uncalled for. The failure of the owner/the employer to contest the claim or to produce the driving licence of the auto trolley driver cannot operate to the prejudice of the 1st respondent herein though the inter se rights of the insurer and the employer are not the subject of the adjudication herein. The alleged suspicions arising due to the delay in the First Information Report were sufficiently answered by the impugned order requiring no repetition and the relationship of the employer and the employee between the respondents herein as claimed by the 1st respondent herein was not controverted by the 2nd respondent herein and the very involvement of the 1st respondent herein in the accident that occurred to the vehicle of the 2nd respondent is a probablising factor of such an employment. The insured vehicle being involved in the accident is specified right from the First Information Report and the impugned order, therefore, does not appear to suffer from any legal infirmity so as to consider any substantial question of law involved therein to justify the entertainment of this appeal. While this appeal should, therefore, fail, the inter se rights between the insurer and the 2nd respondent and any right of the insurer to claim the benefit of principle of pay and recover are not determined herein and no expression of opinion is made on the same. Subject to the above observation, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 30-09-2011 Ksn [1] 1976 (1) SCC 289 [2] 2010 (1) SCJ 584 [3] (2008) 9 SCC 492 [4] (2009) 6 SCC 280 [5] (2010) 8 SCJ 241