IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.1415 of 2003 DATE:20.01.2011 Between: Sammeta Ranga Rao …… Appellant And Kotagiri Venkateswara Rao and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.1415 of 2003 JUDGMENT: The injured is the appellant. There is no dispute that the appellant was the workman under the 1st respondent as driver of lorry bearing No.AP 27 T 5895 and about the 2nd respondent being the insurer and about there being liability for the 2nd respondent to pay compensation for the injury sustained by the petitioner/workman during the course of his employment. The dispute in this appeal is with regard to the quantum of compensation. The Commissioner for Workmen’s Compensation-cum- Assistant Commissioner of Labour-I, Guntur by award dated 07.01.2003 in W.C. case No.44 of 2002 determined compensation amount at Rs.76,397/- payable to the injured. 2) On the basis of Ex.A-2 O.P chit of the Government hospital, Vijayawada and Exs.A-6 and A-7 X-rays, A.W-2 who is doctor who examined the injured/A.W-1 deposed that there was 30% disability which is permanent and partial to the injured. A.W-2 further deposed that the injured is not able to sit and squat normally and that there is a rod i.e., K- nail in the left thigh bone which is projecting up the bone by about 2 inches and that there is restriction of range of movement of left knee in the terminal flexion. Finally A.W-2 says that the injured cannot perform driver duty. The Commissioner accepted partial permanent disability as 30% and determined loss of earning capacity of the injured at 30% and arrived at the amount of compensation payable to the injured. 3) It is contended by the appellant’s counsel that in view of evidence of A.W-2 about the disabilities and discomforts of the injured and about certification by the doctor about the injured not being able to perform driver’s duty, the Commissioner should have fixed loss of earning capacity at 100% and that in any event it should have been fixed atleast 50%. 4) The doctor A.W-2 is not the person who treated the injured. According to A.W-2, the injured suffered fracture of left thigh bone and fracture of right heel bone (Calcanium). Operation was conducted on the injured at the Government hospital, where rod (K-nail) was inserted to set right the fractured thigh bone. A.W-2 certified that the fracture had healed. It is not his finding that there was any mal-union of the fracture. Since it is a case of simple fracture of thigh bone and not a case of crush injury to thigh bone or communated fracture of thigh bone, there is no question of any shortening of leg by 3/4th inch. The doctor could not substantiate with any reason as to why there is shortening of limb by 3/4th inch. Having regard to the medical evidence let in by the injured before the Commissioner, the Commissioner accepted partial permanent disability of the injured at 30% and rightly assessed loss of earning capacity of the injured at 30%. There are no legal reasons to come to a different conclusion in this appeal with regard to the percentage of loss of earning capacity. 5) In the result, the appeal is dismissed, but in the circumstances without costs. _______________________________ SAMUDRALA GOVINDARAJULU, J January 19, 2011 ksh