HON’BLE MR JUSTICE R. KANTHA RAO MACMA Nos. 41 of 1999 DATED: 06.11.2009 BETWEEN: Sunkara Lakshma Reddy . . Appellant And Y.Venkat Reddy and another and another .. Respondents HON’BLE MR JUSTICE R. KANTHA RAO MACMA Nos. 41 of 1999 JUDGMENT: This appeal arises out of the order, dated 07.11.1998 passed in W.C.No.20 of 1996 by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, I Circle, Guntur. 2. The applicant before the learned Commissioner is the appellant herein. He filed the application before the Commissioner seeking compensation in respect of permanent disability sustained by him in a road traffic accident. The learned Commissioner upon making an enquiry into the application filed by the appellant, granted compensation of Rs.57,973/- as against the claim of Rs.1,20,000/-. The appellant preferred the present appeal seeking enhancement of compensation to the total extent claimed by him. 3. I have heard Sri B.Parameshwar Rao, the learned counsel appearing for the appellant. 4. None appears for the respondents. 5. In his application filed before the learned Commissioner, the applicant contended that he was working as driver in the lorry bearing No. AP-13-T-2997 for which the first respondent is the owner and the second respondent is the insurer. The lorry met with an accident on 29.12.1995 while he was driving the same from Vunuvuru in Karnataka State with a load of tobacco bags to unload at Ongole. At about 7.30 a.m. when the lorry reached Ankireddypalem Donka road in Guntur, he stopped the lorry to attend calls of nature and while he was crossing the road to board the lorry, another lorry coming from Chilakaluripeta direction at high speed in a rash and negligent manner, dashed him, on account of which he received fracture to his left leg below the knee. 6. Immediately, the appellant was shifted to Government General Hospital, Guntur, despite prolonged treatment, the fracture ultimately resulted in permanent disability making him not fit to work as driver of the lorry any longer. 7. According to the appellant, the first respondent was paying him salary of Rs.2,000/- per month, the accident occurred during the course of his employment, the second respondent is the insurer of the vehicle in which the appellant was employed and therefore, both the respondents are jointly and severally liable to pay compensation. 8. Before the learned Commissioner, the first respondent remained ex parte. 9. The second respondent-insurance company disputed the employment of the appellant with the first opposite party, the salary, and nature of disability etc. averments made in the application. According to the second respondent, the injury sustained by the appellant is only a simple injury, he can drive the lorry as efficiently as before the accident and therefore, it prayed to dismiss the petition. 10. To substantiate his claim, the appellant apart from examining himself as AW-1, also examined the doctor who treated him and issued disability certificate as AW-2 and marked Exs.A-1 to A-6. On a consideration of the entire material on record, the learned Commissioner granted compensation of Rs.57,973/- considering the disability of the applicant as 30%. 11. Now the point for determination in this appeal is whether there are any valid grounds to enhance the compensation as prayed for by the appellant. 12. Basing on the evidence forthcoming before him, the learned Commissioner held that the appellant was a workman under the first respondent and the accident occurred during the course of his employment with the second respondent. The said aspect was not in fact seriously disputed by the second respondent. However, the second respondent did not take any steps to examine the first respondent to disprove the oral evidence of AW-1 and the contents of Ex.A-1-F.I.R. and therefore, the learned Commissioner has rightly held that the appellant was a workman and that the appellant received personal injuries arising out of accident which occurred in the course of his employment under the first respondent. 13. Relying on Ex.A-2, outpatient chit issued in the Govt. General Hospital, Guntur, the learned Commissioner believed the oral testimony of the appellant and that of AW-2 and recorded a finding that the appellant was aged 45 years on the date of the accident. As regards the wages, the learned Commissioner basing on the minimum wages Act, fixed the wages for a driver of heavy motor vehicle, in public motor transport vide G.O.Ms.No.71, dated 16-4-91 at Rs.1,897/- (Rupees one thousand eight hundred ninety seven only) as per the provisions of the Amended Workmen’s Compensation Act, 1995. However, though AW-2, the doctor who treated the appellant and issued disability certificate stated that an operation was conducted on the left leg of the appellant, steel rods were inserted, the appellant could not walk without the aid of stick, and he could not sit properly, the disability sustained by the appellant is permanent one and that he could not work any more as driver but assessed the disability at 40%. The Commissioner took the same as 30% and granted compensation of Rs.57,973/-. 14. Since it is borne out from the evidence of AW-2, the doctor that on account of the permanent disablement sustained by the appellant, it is not possible for him to work as driver any longer, the disability has to be considered as total but not partial, even though the doctor assessed the disability at 40%. Thus, the learned Commissioner erred in treating the disability only as 30%. Therefore, the compensation shall be computed as per Section 4 (b) of the Act as follows: An amount equal to 60% of the monthly wages of the injured workman multiplied by the relevant factor which comes to Rs.1897/- x 60% x 169.44 = Rs.1,92,856.60 ps. However, the award is restricted to Rs.1,20,000/- which was claimed by the appellant in his application filed before the Tribunal. The appellant is, therefore, entitled for compensation of Rs.1,20,000/-. The enhancement therefore would be Rs.1,20,000/- minus Rs.57,973/- = Rs.62,027/-. The enhanced compensation shall carry interest @ 6% per annum and the respondents 1 and 2 are jointly and severally liable to pay the same and are directed to deposit the amount within 30 days from the date of receipt of the copy of this order and on their failure to deposit the same within 30 days, they have to pay interest at 12% per annum from the date of accident till the date of realization in addition to the penalty that may be imposed under Section 4-A (3) of the Act. 15. Accordingly, the appeal is allowed without any order as to costs. _______________ Date:06.11.2009. R. KANTHA RAO, J CCM HON’BLE MR JUSTICE R. KANTHA RAO MACMA Nos. 41 of 1999 DATED: 06.11.2009