IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISECELLANEOUS APPEAL No.3392 of 2002 Between: G. Vasudev .. Appellant AND The Hyderabad Food Products (P) Ltd. & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISECELLANEOUS APPEAL No.3392 of 2002 JUDGMENT: This Civil Miscellaneous Appeal is directed against the award of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad-II, in WC/89/2000, dated 19.01.2002. 2. The applicant/appellant was employed with the first respondent as a driver of its van No.AP 10U 2632 which met with an accident on 17.01.2000 involving a bus of the APSRTC. He claimed to be paid a salary of Rs.2,500/- per month and sought for a compensation of Rs.1,50,000/- alleging to have sustained permanent disablement as a result of the injuries. 3. The employer did not contest the claim, while the insurer of the vehicle denied the claim in its counter. 4. During the enquiry, the Commissioner examined P.Ws.1 and 2 and marked Exs.A-1 to A-7 and Ex.B-1. 5. The Commissioner rendered the impugned award noting the evidence of the applicant and as Ex.A-5-Original Driving License mentioned his age as 34 years, the applicant’s age was taken as 34 years. As there was no documentary proof of the actual salary paid by the first respondent, the salary was taken by the Commissioner at the statutory minimum wage of Rs.1,892/- as per the Government Orders in G.O.Ms.No.58 WD; CW & L, dated 08.04.1991. As P.W.2, the doctor, stated the disability to be 50% similarly effecting the earning capacity, applying the relevant factor 199.40 to 60% of the salary and assessing half of the same as the compensation, the Commissioner awarded a sum of Rs.1,13,179/- making both the respondents jointly and severally liable to pay the compensation. 6. The applicant preferred this appeal contending that the compensation should have been granted taking the loss of earning capacity as 100% as the applicant became unfit for a driver’s job permanently. 7. The substantial questions of law sought to be raised were whether the evidence of the doctor about the disability found should be taken as indicating the loss of earning capacity at 100% and whether the applicant was permanently disabled for his driver’s job? 8. Sri T. Vishwarupa Chary, learned counsel for the appellant and Sri A.V.K.S. Prasad, learned standing counsel for the second respondent/insurer are heard. 9. The points for consideration are the two substantial questions of law raised in the grounds of appeal. 10. Sri A.V.K.S. Prasad, the learned standing counsel for the second respondent/insurer relied on RAJ KUMAR VS. AJAY KUMAR AND ANOTHER[1], wherein the Apex Court laid down the general principles relating to compensation in injury cases and laid down that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The assessment of damages has to be done objectively and the victim should be compensated for his inability to lead a full life and to enjoy the normal amenities and to earn as much as he used to earn earlier. The Apex Court pointed out that the assessment of future loss of earnings due to permanent disability would depend upon the effect and impact of the permanent disability on the earning capacity and the Tribunal could not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. The percentage of economic loss was held to be different from the percentage of permanent disability and the Tribunal was directed to determine if the disablement percentage expressed with reference to any specific limb has the effect of such disablement on the functioning of the entire body and three steps were directed to be observed in such ascertainment. First, to ascertain what activities the claimant could carry on in spite of the permanent disability, the second, to ascertain the avocation or profession before the accident and the age of the claimant and the third, to ascertain the extent of disablement on the claimant in earning any kind of livelihood or efficiently carrying on his profession and activities as earlier. The Apex Court observed that the Tribunal should also be cautious in accepting the expert evidence of the doctors who did not treat the injured, but who gave ready to use disability certificates. Summarizing the principles, the Apex Court concluded that the same permanent disability may result in different percentages of loss of earning capacity to different persons depending upon the nature of the profession, occupation, job, age, education and other factors. The Apex Court also noted the difficulties faced by the claimants in securing the presence of the treating doctors and while keeping these principles in view, in so far as the present case is concerned, the insurer or the owner of the vehicle did not prefer any appeal or cross objections and, therefore, the acceptance of the evidence of the doctor, P.W.2, by the Commissioner as proving the disability certified in Ex.A-3 cannot be reopened or reassessed in this appeal and there is also no material on record to indulge in any such exercise. 11. The consideration herein shall have to be confined to the effect of the disability certified in Ex.A-3 on the earning capacity of the appellant with reference to his occupation as a driver at the age of 34 years. 12. Sri T. Vishwarupa Chary, learned counsel for the appellant relied on certain precedents governing the assessment of loss of earning capacity in such cases and relying on PRATAP NARAIN SINGH DEO VS. SHRINIVAS SABATA AND ANOTHER[2] by a Three Judge Bench of the Apex Court, the learned counsel pointed out that a carpenter by profession was held to suffer 100% disability in the event of amputation of the left arm above elbow. The Apex Court found the assessment of the Commissioner about the carpenter being rendered unfit for the work of carpentry after the amputation to be reasonable and correct. 13. I n UNITED INDIA INSURANCE COMPANY LIMITED, NIZAMABAD VS. MEKALA ADVAIAH AND ANOTHER[3], a learned Judge of this Court found in the case of a claimant who was a driver by profession that the 60% permanent partial disability sustained by the injured disabled him from doing the driver’s job which he was performing on the day of the accident. In that case also, the defence of the insurer was that there was no evidence to show that the doctor examined by the claimant was the doctor who treated him, while the learned Judge found that nothing was there on record to say that the claimant was not treated by the doctor who deposed. The loss of earning capacity in that case was assessed by the learned Judge at the same percentage of disability certified by the doctor. The same learned Judge rendered another decision in RAYAPATI VENKATESWARA RAO VS. MANTAI SAMBASIVA RAO AND ANOTHER[4], in which a cleaner of a lorry was the injured sustaining 20 to 25% physical disability and he was assessed to have lost his earning capacity due to such deformity. The deformity was according to the orthopaedic surgeon, restriction of ankle movement due to a compound fracture to the right leg and mal-union of the fracture. The learned Judge referred to various precedents of the aspect and concluded that the incapacitation of the workman making him unable to perform his duties which he was performing on the date of the accident has to be taken as loss of earning capacity by 100%. 14. Another learned Judge of this Court held in PASUPULETI RAMARAO VS. POTHINABOINA DURGARAO AND ANOTHER[5] that a cleaner of a lorry whose thumb was amputated and right leg was subjected to a surgery and who was removed from his job as he was incapacitated to perform his duty is to be assessed as having lost his entire earning capacity as against only 60% disability suffered by him. The test, according to the learned Judge was under Section 2 (l) of the Workmen’s Compensation Act, 1923, as to whether such disablement incapacitated a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. 15. Another learned Judge of this Court was dealing with the claim of a labourer on a tractor in GORLA OBULA REDDY VS. K. RAJGOPAL REDDY AND ANOTHER[6], wherein the injured suffered amputation of his right fore arm. The learned Judge referred to the provisions and the precedents of the aspect and held that in the context of employment, the impact on the earning capacity is different from the percentage of disability certified by a physician. 16. Keeping these principles in view and the latest pronouncement of the Apex Court reiterating the binding test to be the effect of the permanent disability on the earning capacity of a person depending upon the nature of profession, age, education and other factors, in the present case, the injured is a driver aged 34 years. The disability certificate shows that the two fractures suffered on the right tibia and right fibula severely restricted the movements of the right knee with pain and stiffness. The resultant effect was stated to be permanent physical impairment and loss of physical function of right lower limb. Even if the loss of physical function was 50% of the normal function as assessed by the doctor, for a driver, 50% loss of physical function of the right leg will be incapacitating him from carrying on the same occupation as a driver after the accident. With reference to the principles laid down in the precedents cited, the effect of the permanent disability suffered in right lower limb by the driver clearly appears to totally disable him from carrying on the same avocation which he was carrying on at the time of the accident and though he may still be capable of earning some money through some other avocation, in so far as the occupation which he was carrying on at the time of the accident is concerned, he has to be considered as suffering total loss of his earning capacity. If so, he has to be treated as having suffered 100% loss of earning capacity and has to be compensated as such, answering the two questions in favour of the appellant. 17. On the basis of the calculation made by the Tribunal in accordance with the provisions of the Workmen’s compensation Act, 1923, the appellant may be entitled to much more than claimed, but his claim before the Commissioner was for Rs.1,50,000/- and this appeal is also for grant of Rs.36,821/- only. The appellant has to, therefore, succeed to the extent of the claim made by him. 18. In the result, the award, dated 19.01.2002, in WC/89/2000, on the file of the Commissioner for Workmen’s Compensation and the Assistant Commissioner for Labour, Hyderabad-II is modified by awarding a compensation of Rs.1,50,000/- to the applicant against both the respondents jointly and severally and the appeal is allowed, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 31st January, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISECELLANEOUS APPEAL No.3392 of 2002 Date: 31st January, 2011 KL [1] (2011) 1 Supreme Court Cases 343 [2] 1976 ACJ 141 [3] 2001 (6) ALD 447 [4] 2001 ACJ 2105 [5] 2000 (2) ALD 752 [6] 2004 (6) ALT 690