IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTYNINETH DAY OF APRIL TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal Nos.1273 of 2003, 1806 of 2003 and 1831 of 2003 C.M.A.No.1273 of 2003 Between: The United India Insurance Company Limited, represented by Divisional Manager, M.G. Road, Kothagudem .. Appellant AND Kattam Bhadraiah and another .. Respondents C.M.A.No.1806 of 2003 Between: The United India Insurance Company Limited, represented by Divisional Manager, M.G. Road, Kothagudem .. Appellant AND Tirupathamma and another .. Respondents C.M.A.No.1831 of 2003 Between: The United India Insurance Company Limited, represented by Divisional Manager, M.G. Road, Kothagudem .. Appellant AND Kanithi Eswaramma and another .. Respondents COMMON JUDGMENT: These three Civil Miscellaneous Appeals arise out of the claims under the Workmen’s Compensation Act, 1923 arising out of the same accident and as they involve common questions, they are being disposed of by this common order. C.M.A.No.1273 of 2003 is against the order in W.C.No.14 of 2000 (non-fatal), C.M.A.No.1806 of 2003 is against the order in W.C.No.15 of 2000 (non-fatal) and C.M.A.No.1831 of 2003 is against the order in W.C.No.16 of 2000 (non-fatal). All the three orders were rendered on 10-06-2002 by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Khammam. The claimants in all the three cases are stone cutters and workmen, who were travelling in vehicle No.ATS 4879, which turned turtle near Pinapaka Kinnerasani River Bridge after the lorry ran over a concrete heap on the left side of the road due to rash and negligent driving on 18-12-1998. The claimants claimed that they were working with the 1st respondent to the claim since several years and were being paid Rs.75/- per day as wages. The claimants also claimed that they suffered grievous injuries due to big boulders falling on them in the accident in respect of which Crime No.83 of 1998 was registered by Burgampahad police. The applicant in W.C.No.14 of 2000 claimed to be aged 50 years and claimed a compensation of Rs.50,000/-. The applicant in W.C.No.15 of 2000 was aged 19 years and claimed a compensation of Rs.2,00,000/-. The applicant in W.C.No.16 of 2000 claimed to be then aged 40 years and claimed a compensation of Rs.1,50,000/-. The employer did not file any counter and did not appear before the Commissioner. The insurer of the vehicle put the applicants to strict proof of their employment with the 1st respondent and also denied the driver of the vehicle having a driving licence or the applicants being authorized passengers in the vehicle. Hence, it claimed that the insurer is not liable to pay the compensation in any of the three cases. In all the cases, PWs.1 and 2 and RW.1 were examined respectively and Exs.A.1 to A.4 and R.1 and R.2 were marked respectively. In the impugned order in W.C.No.14 of 2000 (C.M.A.No.1273 of 2003), the Commissioner referred to the rival contentions and evidence and the applicant was claimed to have stated that he suffered grievous injuries on the right thigh from waist to knee joint and that the right thigh was crushed. He claimed to have taken treatment as inpatient for three months with PW.2 with steel rods being inserted to the right leg and a cement plaster being applied on the left arm. The Commissioner also noted that the doctor deposed as PW.2 about the fractures suffered by PW.1 resulting in stiffness of knee and loss of thigh muscle power, which disability was of the extent of 30%. PW.2 stated that due to permanent partial disability, PW.1 cannot carry any weights on his shoulders. The Commissioner noted that the report to the police was given by the father of the employer in which the employment of the applicant was admitted. The Tribunal deduced from Exs.A.1 and A.2 that the applicant was employed with the 1st respondent and the Commissioner took the minimum wages fixed by the Government of Andhra Pradesh during the relevant time as the basis for assessing the compensation with reference to the age and disability of the applicant. The Commissioner concluded the loss of earning capacity to be 100% and with reference to the relevant factor, the compensation was fixed at Rs.1,31,638/- including advocates fee and court fee and future interest at 12% p.a. since 30 days after the accident till payment. The owner and insurer were held liable to pay compensation jointly and severally. In W.C.No.15 of 2000, the applicant as PW.1 claimed that she suffered fractures to both bones of the right leg, both bones of left fore arm and right hip for which she was treated as inpatient for three months and still she was unable to work with her left arm. The doctor as PW.2 stated about the dislocation of right hip and fractures to both bones of left fore arm, left fubicranie etc., and that PW.1 cannot squat properly or walk properly due to permanent partial disability. The Commissioner noted the report by the father of the employer to the police and treated PW.1 to have suffered 100% loss of earning capacity. The Commissioner also found that the applicant was employed with the 1st respondent and the accident occurred out of and in the course of employment with the 1st respondent. The Commissioner took the minimum wages fixed by the Government at Rs.1427/- per month as the basis and considered the disability to be 100% loss of earning capacity and the total compensation of Rs.1,93,533/- including advocate’s fee and court fee and interest at 12% p.a. since 30 days after the accident till the date of payment was awarded against the owner and insurer of the vehicle jointly and severally. In W.C.No.16 of 2000, PW.1 stated that she suffered grievous injuries on the right hand, interior pubicrami, zigoma and on her nasal bone.. She was treated for two months as inpatient spending Rs.15,000/- towards medical expenses. The doctor corroborated her claims about the injuries and stated the disability to be 30% as PW.1 cannot carry weights on her shoulders due to the stiffness of the shoulder and the elbow, which was the permanent partial disability suffered by the applicant. The Commissioner noted the report to the police to have been given by the father of the employer and that the loss of earning capacity was cent percent. The Commissioner also took Rs.1427/- as the minimum wage fixed by the Government at the relevant time and applying the relevant factor taking the disability as cent percent, the Commissioner fixed a compensation of Rs.1,45,675/- including the advocates fee and court fee. The Commissioner also awarded interest at 12% p.a. as per statute against both the owner and insurer of the vehicle jointly and severally. In the Civil Miscellanous Appeals filed against the said orders, the contentions of the insurer are identical. The insurer was aggrieved by the Commissioner treating the loss of earning capacity to be cent percent and contended that in respect of non- fatal injuries unless the medical witness clearly deposed about such disability, the Commissioner cannot take any independent view. The injuries sustained by the applicants were simple in nature, do not effect their earnings and could not have been the basis of the respective orders. Sri A.V.K.S. Prasad, learned standing counsel for the 1st respondent-applicant and Sri R. Kameswara Rao, learned counsel for the claimants in all three cases are heard and C.M.A. Nos.1806 and 1831 of 2003 were dismissed for default against the owner of the vehicle/2nd respondent as per the Court order dated 28-01- 2010. The point for consideration in all the three appeals is whether there is any substantial question of law involved concerning the assessment of loss of earning capacity? The 1st respondent to the W.C. cases being the employer and the applicants in the three cases being the employees under him is not in dispute in these appeals and the accident occurring out of and during the course of employment of the applicants with the 1st respondent is also not in dispute herein. The Commissioner for Workmen’s Compensation concluded that the applicants were employed by the 1st respondent and the accident occurred out of and in the course of employment of the applicants with the 1st respondent, which findings have, thus, become final. What is in question in these appeals is only the Commissioner awarding compensation on the basis of cent percent loss of earning capacity. Sri A.V.K.S. Prasad, learned standing counsel for the appellant invited attention to Oriental Insurance Company Limited v. Mohd. Nasir and another[1] wherein the Apex Court exhaustively referring to the relevant provisions of the Workmen’s Compensation Act, 1923 and the Motor Vehicles Act, 1988 noted that the beneficent legislations provide for payment of compensation to the workmen employed by the employers in respect of permanent disability suffered by the workmen under the circumstances covered by the statute. The Apex Court noted that both the statutes provide for the mode and manner in which the percentage of loss of earning capacity is required to be calculated. The amount of compensation in the cases of such nature was noted to be directly relatable to the percentage of physical disability suffered by the injured vis-à-vis the injuries specified in the First Schedule of 1923 Act. The Apex Court observed that functional disability has a direct relationship with the loss of limb and in determining the amount of compensation, the doctor, who examined the claimant, must know about the functional disablement and loss of earning capacity. On those principles, the Apex Court fixed the compensation in the respective cases before it. The learned standing counsel for the appellant also relied on Yadav Kumar v. The Divisional Manager, National Insurance Co. Ltd., and another[2] wherein the doctor, who deposed, examined the injured after two and half years after the incident and he opined that in view of the injuries, the appellant cannot perform any hard work, cannot lift any weight and cannot perform any work smoothly. This was stated by him to have resulted in 33% disability of right upper limb, 21% of the disability of the left upper limb and 20% of the disability of the whole body. The Supreme Court found that the disability prevents the appellant from painting in view of multiple injuries sustained by him and assessed the loss of future earnings at 20% only. However, the Supreme Court also pointed out about the need to take a reasonably compassionate view of the things and the Courts and Tribunals should be guided by principles of good conscience to give a just and equitable result. The Supreme Court also stressed on the need to determine the compensation on a generous scale as law must value life and limb. These two precedents relied on by the appellant, in effect and substance, point out the need for the Tribunal/Court to assess the compensation on the basis of loss of earning capacity, consequential and in proportion to the disability suffered due to the injuries suffered in the accident. While the evidence of the doctor, who treated the injured, would be of great assistance, a compassionate and humanitarian approach to the question of determination of the compensation should, therefore, inform the Tribunal/Court. Sri R. Kameswara Rao, learned counsel for the applicants referred to Rayapati Venkateswara Rao v. Mantai Sambasiva Rao and another[3], wherein the applicant was a cleaner and suffered disability of 20 to 25%. The learned Judge referred to precedents wherein the inability to perform the same duties subsequent to the accident by the injured-workman was held to lead to grant of 100% compensation. In that case, as the medical evidence was that the applicant cannot perform his duties as a cleaner as he was performing prior to the accident and he has to use a stick to walk, his incapacity was held to be 100% in respect of earning capacity though the physical disability is only 20 to 25%. The learned counsel also relied on National Insurance Co Ltd., v. Panibudi Chulia and others[4] wherein the question was about the jurisdiction of the Commissioner to determine the issue relating to violation of the insurance policy. The learned counsel further referred to New India Assurance Co. Ltd, v. Shantibai and others[5] wherein a learned Judge of the Madhya Pradesh High Court held that under the Workmen’s Compensation Act also the insurer has no right to take any defence beyond the grounds available to it under Section 149 (2) of the Motor Vehicles Act, 1988, more so, when the appeal is confined to substantial question of law. While any violation of the terms and conditions of the insurance policy was not a ground of appeal in any of the three cases, Section 149 (2) of the Motor Vehicles Act, 1988, may not in terms have any relevance as the substantial question of law raised herein is about the basis on which loss of earning capacity has to be calculated. Though the quantum of compensation may be dependent on the answer to such question, the appellants cannot be treated as merely questioning the quantum of compensation. While the right of appeal of the insurance company against the order under the Workmen’s Compensation Act cannot be broader than such a right available to the insurer under the Motor Vehicles Act, the issue involved herein being the presence or absence of any basis for the conclusion of the Commissioner about the quantum of compensation vis-à-vis the loss of earning capacity, restrictions on the right of the insurer to appeal do not appear operable in this case. If so, each of these cases has to be examined with reference to the nature of the injuries suffered, the consequences of the injuries on the physical and mental well being of the applicants, the impact of such consequences on the injured applicants carrying on their avocations, which they were carrying on at the time of the accident and the consequential quantum of compensation to be awarded in proportion to the reasonably estimated loss of earning capacity of course keeping in view the liberal, compassionate and reasonable approach to be adopted as advised by the Supreme Court. In W.C.No.14 of 2000, the grievous injuries suffered were on the right thigh and left arm. The medical evidence is that there was stiffness of knee with loss of muscle power of the thigh resulting in 30% disability making the applicant unable to carry weights on his shoulders. The applicant was aged 50 years by the time of the accident and was a stone cutter and workman. While the Commissioner took the then prevailing statutory minimum wages into account for calculating the compensation in the absence of any clear evidence and applied the relevant age factor, he did not elaborate as to how inability to carry weights on the shoulders can result in cent percent loss of earning capacity in respect of stone cutting work. While the disability was in respect of stiffness of knee with loss of muscle power of thigh, it was not clear as to what disability was left due to the fractures in the left fore arm. Even taking the medical evidence at face value and even taking a liberal view, cent percent loss of earning capacity, therefore, appears to be not a proportionate and reasonable estimate and the same probably can be confined to 75% of the compensation to be awarded taking the injuries and their consequences to have imposed 75% disability in earning capacity on the applicant. In W.C.No.15 of 2000, the applicant suffered dislocation of his right hip and fractures to both bones of left fore arm and right leg as per her evidence and the medical evidence is about PW.1 suffering such grievous injuries resulting in her inability to squat or walk properly. The applicant therein was also a stone cutter and workwoman, aged 19 years and while her inability to walk or squat properly will undoubtedly impose substantial inconvenience in carrying on her profession as a stone cutter, the same could not have been equated to cent per cent loss of earning capacity in respect of such an avocation. Keeping in view that such a permanent disability was left for the applicant for the rest of her life and that she would not be again what she was prior to the accident while working as a stone cutter, the loss of earning capacity in her case also can be taken as 75%. So far as the applicant in W.C.No.16 of 2000, the applicant was also a stone cutter and workwoman, aged 40 years and she suffered fractures on the right hand, right nasal bone, pelvis and injuries on the right leg etc., and her disability was certified by the medical evidence to be 30%. She was also stated to be disabled from carrying any weights on her shoulders due to stiffness of the shoulder and the elbow. The permanent partial disability in her case also can be similarly assessed at 75% of her earning capacity as a stone cutter. While it should be noted that an element of guess and estimate is inevitable in making such an estimate, the estimate should obviously be based on the extent of incapacitation of the workman to perform his duties, which he was performing on the date of accident and keeping in view the principles laid down in the precedents cited, the compensation in all the three cases has to be accordingly reduced to 75% of the compensation awarded by the impugned orders. The compensation has to be, hence, accordingly fixed at Rs.98,307/- in W.C.No.14 of 2000/C.M.A.No.1273 of 2003, Rs.1,44,625/- in W.C.No.15 of 2000/C.M.A.No.1806 of 2003 and Rs.1,08,806/- in W.C.No.16 of 2000/C.M.A.No.1831 of 2003. The other directions of the Commissioner in the impugned orders about the advocate’s fee and court fee, interest, joint and several liability of the owner and the insurer and manner of deposit need not be disturbed as they are not found to be in any way deviant from any provision or principle of law. Accordingly, the orders dated 10-06-2002 in W.C.Nos.14, 15 and 16 of 2000 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Khammam, are modified by reducing the compensation to Rs.98,307/-, Rs.1,44,625/- and Rs.1,08,806/- respectively, while maintaining all other directions given by the Commissioner in the impugned orders. The Civil Miscellaneous Appeals are ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-04-2011 Ksn [1] 2009 (6) SCC 280 [2] 2010 (1) Decisions Today (SC) 446 [3] 2001 (1) ALT 169 [4] 2007 ACJ 164 [5] 2007 ACJ 2679