IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY FOURTH [24TH] DAY OF NOVEMBER, TWO THOUSAND AND NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1252 of 1999 Between: Shaik Silar … Appellant And: Pattan Ibrahim Khan & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CMA No.1252 of 1999 JUDGMENT: This appeal is directed against the order dated 07.12.1998 in W.C.No.375 of 1996 on the file of the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour-2, Guntur, wherein the claim of the appellant was allowed in part awarding compensation of Rs.1,00,292/-. 2. Heard the learned counsel appearing for the appellant and the learned counsel for the respondents. Perused the record. 3. Appellant filed the claim application seeking compensation of Rs.3,00,000/- on the ground that while working as a driver on the lorry bearing No.AAK 811, belonging to the first respondent, he sustained injuries in the accident that occurred on 04.10.1995 in the course of employment and the fracture injuries have led to permanent disability making him unfit to work as a driver of the vehicle. 4. The first respondent-owner of the vehicle did not file any counter. The 2nd respondent-insurer filed a counter opposing the application and denying the liability to pay the compensation. 5. During enquiry before the learned Commissioner, AWs.1 and 2 were examined and Exs.A.1 to A.10 were marked. No oral or documentary evidence was adduced on behalf of the respondents. 6. On a consideration of the evidence available on record, the learned Commissioner held that the applicant was a workman and he sustained injuries in the accident that occurred in the course of employment. The said finding is not challenged. The learned Commissioner further held that the applicant is entitled for a total compensation of Rs.1,00,292/-. Not satisfied with the award, the applicant filed the present appeal. 7. The main contention of the learned counsel for the appellant is that the Commissioner has erred in assessing the disability at 50%, though the applicant has become totally unfit to drive the vehicle after the accident and thereby suffered permanent disability of 100% functionally. 8. AW.2 Medical Officer who examined the applicant testified that the applicant was admitted at U.G.H., Vijayawada on 05.10.1995 and as per the accident register, the applicant sustained seven injuries, which includes fracture of both bones left leg, extrer capusaler fracture to the right hip joint, fractures to the left foot matadors, fracture of the estibuler on the left side. It is also in the evidence of AW.2 that the applicant was treated for the injuries. He also testified that the hip injury was treated with pin traction. According to AW.2 on 7.11.1995 right leg bones was operated and intera medullary nailing was performed and POP was applied on 7.12.1995 and the patient was discharged on 04.12.1995. He further testified that the patient came for checkup on 05.11.1996 and he found that there was shortening of right lower thigh by three inches and there was stiffness of left ankle joint and also left knee joint. AW.2 further testified that it is difficult for the applicant to sit or squat and even to attend to calls of nature and the movements of right hip joint are restricted. AW.2 further categorically stated that it is difficult for the applicant to drive the vehicles. The above medical evidence of AW.2 would clearly show that the applicant was admitted in the hospital with multiple injuries including multiple fractures and he was inpatient in the hospital for about two months, during which period, he under went a couple of surgeries and the injuries have ultimately led to shortening of the leg with stiffness of joints persisting and movements restricted, which is a permanent disability. Though the Medical Officer has assessed physical disablement at 50% in view of his evidence that the applicant cannot drive the vehicle in view of the permanent disability, resulting from the injuries, the functional disability of the applicant as a driver is total. 9. In an unreported decision in CMA No.3204 of 2001 dated 30.06.2008, this Court after referring to various earlier decisions of this Court on this aspect held as follows: “From the ratio in the above decisions rendered by our High Court it is seen that this High Court is consistently taking a view that in cases where the injuries sustained by a workman completely disables him from performing the work, which he was doing at the time of accident, it amounts to 100% disability. The evidence of the doctor who treated the appellant clearly shows that though the physical disability of the appellant is only 40%, as a driver his disability is 100%. As the appellant suffered injuries while working as a driver, it cannot but be said that he suffered 100% disability as a driver and so he is entitled to compensation on the basis that he suffered 100% disability.” 10. In the present case also, though the doctor has assessed the physical disability at 50%, the applicant has suffered total disablement functionally as he is unfit to drive any vehicle on account of the permanent disability, resulting from the injuries sustained by him in the accident. It is well settled that two concepts of physical disability and functional disability are distinct and different, when it shown that the injured workman is unable to do the work, which he was doing before the accident, the functional disability has to be taken as total, notwithstanding the extent of physical disablement. As the applicant was a driver by profession and in view of the permanent disability resulting from the injuries sustained in the accident, he is unfit to drive the vehicles any more as per the medical evidence of AW.2, the functional disability of the applicant as a driver ought to be taken as 100%. 11. There is no dispute regarding the age or wages of the applicant as on the date of the accident. The Tribunal has taken the wages of the applicant at Rs.1973/- [i.e., Rs.1215/- and adding VAD at Rs.758/-] and the applicant was aged 45 years by the date of the accident and the suitable multiplier applicable is 169.44. In view of Section 4(1)(b) of the Workmen Compensation Act, an amount equal to 60% of the monthly wages of the injured workman multiplied by the relevant factor, or an amount of Rs.90,000/-, whichever is more has to be paid to the workman. Accordingly, the total amount of compensation payable to the applicant comes to Rs.1973/- x 169.44 [relevant factor] x 60% = Rs.2,00,583/-. In the circumstances, the impugned award is modified accordingly, granting total compensation of Rs.2,00,583/- [Rupees two lakhs, five hundred and eighty three only] with interest at 9% per annum from the date of award on the enhanced amount. The 2nd respondent shall deposit the enhanced amount of compensation within one month from the date of receipt of copy of this order. 12. In the result, the civil miscellaneous appeal is allowed in part as stated above. No order as to costs. _______________________ G.V.SEETHAPATHY, J Date: 24.11.2009 Bss