IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE ELEVENTH (11TH) DAY OF OCTOBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CMA Nos.249 & 1241 of 2009 CMA No.249 of 2009: Between: New India Assurance Company Ltd., Secunderabad … Appellant And: V V Prasad & another … Respondents CRP No.1241 of 2009: Between: V V Prasad … Appellant And: Mohd. Abdul Khader Jeelani & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Miscellaneous Appeal Nos.249 & 1241 of 2009 COMMON JUDGMENT: CMA No.249 of 2009 is filed by the Insurer, assailing the award dated 13.11.2006 in WC No.72 of 2005 on the file of the Commissioner for Workmen Compensation and Assistant Commissioner for Labour-I, Hyderabad, where under the claim of the first respondent-applicant was allowed in part awarding compensation of Rs.2,82,429/-. CMA No.1241 of 2009 is filed by the claimant in the same case, seeking enhancement of the compensation. 2. Arguments of the learned counsel for the appellant and respondent are heard. Perused the record. As both the appeals arise out of the same order and between the same parties, they are heard together and are being disposed of by this common order. 3. The first respondent in CMA No.249 of 2009 and appellant in CMA No.1241 of 2009, filed claim application before the Commissioner for Workmen Compensation, seeking compensation of Rs.5 lakhs for the injuries sustained by him in the motor vehicle accident that occurred on 19.07.2005. According to the claimant, he was engaged as a driver in the auto rickshaw bearing No.AP 09 W 8487 by the 2nd respondent herein on a salary of Rs.5000/- per month besides batta of Rs.50/- per day and that on 19.07.2005, he was proceeding in the said auto from Medchal to Bowenpalle, a lorry bearing No.AP 22 T 5228 coming in the opposite direction, driven in a rash and negligent manner by its driver, dashed against the auto, as a result of which, the applicant sustained fracture of right femur besides other injuries including segmental fracture. He was shifted to Gandhi Hospital and from there he was shifted to Osmania General Hospital, where he under went operation to his right leg for insertion of nails. A case in Cr.No.186 of 2005 was registered against the driver of the lorry by Medchal Police. 4. The owner of the auto filed counter, admitting the employment of the applicant as driver and also admitting the factum of accident and the injuries sustained by the applicant in the said accident. He pleaded that the auto is insured and therefore any compensation is liable to be paid by the insurance company. 5. The appellant-insurer filed counter, opposing the claim and denying their liability to pay the compensation. During enquiry, AWs.1 and 2 were examined and Exs.A.1 to A.8 were marked on behalf of the applicant. No oral evidence was adduced by the owner or insurer and Ex.B.1 copy of the policy was marked. 6. On a consideration of the evidence available on record, the learned Commissioner awarded total compensation of Rs.2,83,429/-. 7. The main contention of the learned counsel for the appellant-insurer is that the learned Commissioner erred in awarding compensation for disability and loss of earning capacity, though the same is not determined by any qualified medical practitioner. The applicant sought enhancement of the compensation on the ground that the learned Commissioner erred in taking the permanent disability only to the extent of 65% and loss of earning capacity to the extent of 85% contrary to the medical evidence on record. 8. The finding of the learned Commissioner that the applicant was employed by the 2nd respondent-owner of the auto as a driver, and the applicant sustaining employment injury, during the course of such employment, is not seriously challenged. In fact, the owner of the auto filed counter, admitting the employment of the applicant as driver and the factum of the applicant sustaining injury during the course of such employment in the accident. Simply because the owner has stated that the vehicle is insured and the compensation payable if any is to be paid by the appellant-insurer, no inference of any collusion between the applicant and the owner can be drawn, especially in the light of the evidence on record establishing the claim of the applicant that he sustained employment injury during the course of his employment as a driver in the auto belonging to the 2nd respondent-owner. 9. The medical evidence on record particularly, the testimony of AW.2 Professor of Orthopedics, Mediciti Hospital, shows that the applicant sustained segmental fracture of shaft of right femur and inter-locking of nail was done and both the fractures were united, resulting in shortening of leg by 2” because of which there is moderate restriction of right knee movement. He issued disability certificate Ex.A.5 wherein he stated that the injuries have led to a partial permanent disability of right leg to the extent of 65%. He however, further deposed that being a driver, the applicant cannot drive with this disability and his loss of earning capacity is 100%. Though PW.2 has not treated the applicant, being a Professor of Orthopedics, the certificate of disability Ex.A.5 issued by him is certainly relevant and can be looked into. The certificate Ex.A.5 however shows that the physical disability is only to the extent of 65%. The learned Commissioner however assessed the said disability to the extent of 85%. The impugned order does not disclose any valid reasons for discarding the medical opinion expressed by AW.2 in the disability certificate Ex.A.5 and assessing the percentage of the disability at a higher rate of 85% when a competent orthopedic Professor has expressed his opinion based on his professional expertise, the learned Commissioner ought not to have differed with the same in the absence of any other evidence justifying such alteration. No doubt, in the evidence, AW.2 stated that loss of earning capacity on account of the partial permanent disability is 100%. The learned Commissioner therefore appears to have adopted via media approach and assessed the same at 85%. If really, the loss of earning capacity was 100% as deposed by AW.2, he ought to have mentioned the same in the disability certificate Ex.A.5 issued by him. No assessment of loss of earning capacity has been made in the certificate Ex.A.5 as required under Section 4(1)(c)(ii) of the Workmen’s Compensation Act . In the absence of any such assessment made as required under the law and the certificate Ex.A.5 showing that the disability is only 85%, the oral testimony of AW.2 suggesting that the loss of earning capacity is 100% cannot constitute a basis for awarding compensation. Even according to AW.2, both the fractures have united and the disability is only in the nature of the restricted movement of the knees. It cannot therefore be said that there was any such physical disability caused to the applicant rendering him totally incapacitated to do any work, which he was capable of doing at the time of the accident. 10. In ‘Ramprasad Balmiki v. Anil Kumar Jain[1]’ the apex Court held that ‘sufferance of fracture resulting in shortening of leg to some extent does not come within purview of ‘permanent total disablement’. In the above case also, the appellant therein was working as driver. It was further observed that the High Court correctly proceeded on assumption that extent of permanent disability suffered by appellant was only 40% and not 100%. 11. In ‘K. Madhu v. Brij Kishore Pandiya[2]’, this court held that ‘though qualified medical practitioner-AW.2 deposed that the appellant cannot drive the vehicle in future on account of the disability, still it cannot be considered that the appellant was totally incapacitated to the extent that he cannot do any work or earn any income by pursuing any other vocational calling’. In the above case, the physical disability assessed by AW.2 (doctor) was only 40%, noticing that even in the case of amputation, which is a scheduled injury, the percentage of the disability is only 90%, depending upon the extent of amputation, it was observed as follows: “…..In the present case, there is no such evidence on record to show that the loss of earning capacity, of the appellant, has in fact, been assessed by the medical practitioner as required under section 4(1)(c) or that on such assessment it was found that the loss of earning capacity is far more than the extent of physical disability and the appellant’s earning capacity got reduced in every employment which he was capable of undertaking on account of the disablement.” 12. In the present case also, there is no such evidence on record to show that the loss of earning capacity of the applicant was assessed by the medical practitioner-AW.2 as required under section 4(1)(c) or that such assessment it was found that the loss of earning capacity is far more than the extent of physical disability. There is also nothing on record to show that the applicant’s earning capacity got reduced in every employment, which he was capable of undertaking on account of the disablement. Ex.A.5 certificate issued by AW.2 is silent about the assessment of the extent of loss of earning capacity on account of the injury sustained. 13. In ‘Pal Raj v. Divisional Controller, North East Karnataka Road Transport Corporation[3]’, the apex Court held as follows: “…….The aforesaid provision would indicate that where a workman suffers injury which is not specified in Schedule I to the Act, compensation is to be assessed on such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, permanently caused by the injury as assessed by a qualified medical practitioner. Since in the instant case, the nature of injury suffered by the Appellant is not specified in Schedule I, the compensation has necessarily to be assessed on the basis of the loss of earning capacity caused by the injury which could amount to 100% disablement in a given case. In the instant case, however, although the Appellant 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 driving of a vehicle is concerned, he is in a position to earn a living other than by functioning as a driver, which, in fact, he is currently doing, having been posted as a Peon by the Respondent.” 14. In the circumstances and in view of the principles laid down in the above decision, it must be held that in the absence of any proper assessment of loss of earning capacity by a competent medical authority in terms of section 4(1)(c) of the Act, the claim of the applicant for enhancement on the ground that he suffered 100% loss of earning capacity based solely on the oral testimony of AW.2 cannot be countenanced. Consequently, CMA No.1241 of 2009 filed by the claimant for enhancement fails and is accordingly dismissed. 15. Having regard to the nature of the injuries sustained and the resultant extent of physical disability, which is assessed by AW.2 at 65% on account of restricted knee movement of right leg, it is considered that ends of justice would be met by leaving the loss of earning capacity assessed by the learned Commissioner at 85% undisturbed. The Tribunal however erred in awarding interest at 12% per annum on the amount of compensation from the date of filing of the application. Interest at that rate would become due only from the date of expiry of the period of one month from the date of order passed by the Commissioner. Subject to the above modification regarding interest, the appeal filed by the appellant- insurer is liable to be dismissed and is accordingly dismissed. 16. In the result, both the appeals are dismissed as stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 11.10.2011 bss [1] 2008(6) ALD 82 (SC) [2] 2010(3) ALD 159 [3] 2010 ACJ 2859