IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.2219 of 2003 DATE:16.12.2010 Between: The United India Insurance Company Limited …… Appellant And Syed Meera Hussain and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.2219 of 2003 JUDGMENT: Insurance Company is the appellant. 2) There is no dispute about factum of accident in which the claimant/1st respondent who is driver of auto bearing No.AP 28 U 8155 sustaining injuries in this accident during the course of his employment under the 2nd respondent/insured. Immediately after the accident, the injured was taken to Osmania General Hospital, Hyderabad. The casualty medical officer gave Ex.A-3 injury certificate on the basis of medical record maintained by that hospital. The following injuries are noted therein: 1. Swelling deformity on Rt. fore arm near elbow 2. 2 x 2 cm laceration wound near occipital. 3. 1 x 2 cm abrasion over lt. Elbow 4. pain flenk. 5. pain over back and chest. 3) Subsequently, the injured was shifted to Sushmita Orthopaedic and Fracture Clinic of P.W-2, where he took treatment from 28.02.2002 to 01.03.2002. The Government doctor reserved opinion as to nature of injuries awaiting radiological report. P.W-2 after looking into X-rays taken on the injured/P.W-1 found fracture of right Olecremon process and fracture of 7th and 8th ribs of right side. They correspond to injury Nos.1 and 5 of the Government Doctor in Ex.A-3. Ex.A-4 is the certificate issued by P.W-2. 4) According to P.W-2, there is partial permanent disability of 40% as per Kessler’s guidelines. P.W-2 says that after taking X-ray and on clinical examination, he found that there was stiffness of right elbow with range of movements from 0º to 90º and that with these problems, the injured would not be able to do heavy work and he would not be able to drive vehicle as perfectly as he used to do prior to the accident. In cross- examination, P.W-2 deposed that he did not mention whether the injuries were healed or not and that except for physiotherapy he did not advise any treatment to P.W-2. He further says that in X-ray seen by him in the year 2003, there was nothing wrong. He says that stiffness i.e., post traumatic fracture was partial disablement. Because of the stiffness of right elbow which is post traumatic fracture, the disability cannot be 40% for the injured. Simply because the doctor assessed the disability at 40%, neither the Commissioner nor the Court need to take the same as a gospel truth. It has to be seen whether there is any basis for the said percentage of disability given by the doctor. This is not a case where there was any communited fracture or crush injury resulting in shortening of arm. The entire fracture of elbow was healed. P.W-2 advised only physiotherapy to P.W-1. If physiotherapy was undertaken as advised by P.W-2, P.W-1 might not be having even the stiffness of elbow found by P.W-2. Having regard to the observations given by P.W-2 in his evidence, this Court is of the opinion that 40% disability assessed by P.W-2 is very generous and is on higher side and is also baseless. The Commissioner should not have blindly adopted the percentage of disability given by P.W-2. At best, the disability of the injured in this case can never exceed 20%. Even as per evidence of P.W-2, the injured is not debarred from driving a motor vehicle like auto. P.W-1 was not a heavy goods vehicle driver. He was only a light motor vehicle driver and was driving only an auto. Therefore, loss of earning capacity resulting from 20% disability to right elbow can be assessed at 20% only. The compensation at the above rates would come to Rs.67,819.50 Ps apart from Court fees of Rs.250/- and Advocate’s fees of Rs.1,000/-. Thus, total compensation payable is Rs.69,069.50 Ps. The said amount is rounded of to Rs.70,000/-. 5) In the result, the appeal is partly allowed altering the compensation amount from Rs.1,36,889/- to Rs.70,000/-. No costs. _______________________________ SAMUDRALA GOVINDARAJULU, J December 16, 2010 ksh