THE HON’BLE SRI JUSTICE K.S.APPA RAO C.M.A.No.2505 of 2003 JUDGMENT: Being aggrieved by the judgment and decree dated 06.01.2003 in W.C.No.94 of 2000 on the file of the Commissioner for the Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad-II, the present appeal is filed by the United India Insurance Company Limited, O.P.No.2 in the W.C., contending that the learned Commissioner without following the mandatory provisions relating to calculation of compensation with reference to percentage of disability, granted the compensation, which is erroneous. It is further contended that the learned Commissioner granted compensation by taking into consideration 100% disability, though there is a documentary proof that claimant sustained only 35% disability. The appellant placed reliance on the following decisions in Pratap Narain Singh Deo v Shrinivas Subata and another[1], Palraj v Divisional Controller, NEKRTC[2], The National Insurance Company Limited v Mohd.Saleem Khan and another[3], Managing Director, North East Karnataka Road Transport Corporation v T.Prabhakar and others[4] and and Yadava Kumar v Divisional Manager, National Insurance Company Limited and another[5]. The counsel for the respondents urged that the learned Commissioner, having observed the disability suffered by the claimant in the open Court, has taken the disability at 100% and accordingly granted the compensation, which is justified. Now the point for consideration is whether the learned Commissioner was unjustified in taking the disability of the claimant at 100% while working out the compensation is sustainable. As seen from the impugned order, the claimant was an employed to work as a Cleaner on the lorry bearing No.AP –10T-2592 on a monthly salary of Rs.800/-. On 25.10.1994, while he was proceeding on the said lorry, he sustained grievous injury during the course of his employment. Thereafter, he is admitted in Government Hospital, Bhongir and shifted to Gandhi Hospital at Secunderabad, where he took treatment for fracture of pelvic bone and his urinary bladder was ruptured. Because of the injuries sustained by him, he could not attend to his normal duties and he is not in a position to do work for his earnings. The learned Commissioner observed in the impugned order that the disability of the applicant was visible to the naked eye and his plight is such that utmost support is required to be extended to him, and he opined that the applicant suffered 100% disability. Having regard to the statutory minimum wages prescribed by the Government for the relevant employment at the relevant time, the learned Commissioner has taken the monthly wages of the applicant at Rs.1002/-, which is not disputed by both the counsel for parties. However, the dispute is with regard to the percentage of disability sustained by the applicant. Though the learned Commissioner took the disability of the applicant at 100%, but a perusal of the order shows that, he has calculated the compensation at 50% disability. However, even the same is not in consonance with Ex.A3-Disability Certificate. A perusal of which shows that the applicant had suffered only 35% disability. That being the medical evidence, the learned Commissioner committed an error in taking into consideration the disability of the applicant at 50% for calculating the compensation. Therefore, I am of the opinion that the disability of the applicant should be taken at 35% for the purpose of calculating the compensation. The applicant was getting Rs.1,002/- and 35% of the same comes to Rs.350.70 ps., and if the same is multiplied by the relevant factor of 222.71, because the applicant was aged 21 years, the compensation would come to Rs.78,104.397, and if the advocate fee granted by the Commissioner at Rs.1,000/- is added, the compensation to which the applicant is entitled comes to 79,104.397, which can be rounded off to Rs.80,000/-. Thus, the applicant is entitled to Rs.80,000/- and not Rs.1,12,578/- as awarded by the learned Commissioner. Accordingly, the appeal is allowed, reducing compensation from Rs.1,12,578/- to Rs.80,000/-, which the applicant is entitled to with interest at 6% per annum, from the date of filing petition till the date of realisation. It is, however, brought to the notice of the Court that the appellant has already deposited the compensation of Rs.1,12,578/- , granted by the Commissioner. If that be so, the appellant-insurance company shall be entitled to return of the balance amount, after the amount awarded by this Court to the applicant is deducted along with interest. __________________ K.S. APPA RAO, J 17th February, 2011 PNV [1] 1976 ACJ, 141 [2] 2010(8) SCJ 241 [3] 1991(3) ALT 504 [4] 2003 ACJ 1420 [5] (2010) 10 SCC 341