IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1605 of 2000. Date:10.11.2009. Between:- The National Insurance Co.Ltd., represented by its Branch Manager, Branch Office, Jawahar Road, Nizamabad. ..Appellant/Respondent No.2 And Boi Savari and another .. Respondents/Petitioner and Respondent No.1 JUDGMENT:- This appeal is directed against the order dated 30.04.1997 passed in W.C.No.60/96 NF on the file of the Commissioner for Workmen’s Compensation and Asst.Commissioner of Labour, Nizamabad wherein and whereby, the claim of respondent No.1 herein was allowed in part awarding a sum of Rs.42,052/-. Heard the learned counsel for the appellant-insurer. None appeared for respondent No.1-claimant though served with notice. Perused the records. Respondent No.1 herein filed the claim application seeking compensation of Rs.1,60,000/- on account of personal injuries sustained by him during the course of his employment with respondent No.2 herein as a Labourer in the lorry bearing No.APJ 2618. Respondent No.2 herein, the owner of the lorry, remained exparte before the Tribunal. The appellant-insurer opposed the claim and denied their liability. During the course of enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-8 were marked. No oral or documentary evidence was adduced on behalf of the appellant. On a consideration of the evidence available on record, the learned Commissioner passed an Award granting a sum of Rs.42,052/-. Aggrieved by the same, the insurer filed the present appeal. The learned counsel for the appellant would contend that the learned Commissioner erred in accepting the disability certificate-Ex.A-5 and estimated the loss of earning capacity at 50% though in fact, there is no evidence to show that respondent No.1 suffered any loss of earning capacity. The finding of the Tribunal that respondent No.1 herein was employed as worker for the purpose of loading and unloading in the lorry bearing No.APJ 2618 belonging to respondent No.2 herein and therefore, respondent No.1 is an employee of respondent No.2 and that he sustained the injuries in the accident that occurred during the course of employment, is not seriously disputed. P.W.2-Dr.Devidas, who examined respondent No.1 and issued the disability certificate testified that respondent No.1 suffered the following injuries: 1. Injury scar mid line forehead 2. Compression fracture L4 3. Ankylosis mid torsal bones left foot He further deposed that on account of the said injuries, respondent No.1 is having pain in the right foot and his movements of the spine are painful and he cannot do hard labour work. P.W.2 issued a disability certificate-Ex.A-5 stating that respondent No.1 suffers from 50% of partial permanent disability. Though there is no separate assessment of the loss of earning capacity on account of such disability stated by P.W.2, the Tribunal has taken the said disability of 50% into consideration while estimating the loss of earning capacity. It is the contention of the learned counsel for the appellant that the Doctor, who initially treated the injuries of P.W.1, is not examined and therefore, the evidence of P.W.2 and certificate- Ex.A-5 cannot be taken into consideration, is untenable for the reason that the impact of the injuries and any resultant disability therefrom can be gauged and assessed only after a lapse of sometime subsequent to the accident and not while the injured was treated for the injuries sustained. What all required under Law is that the extent of disability shall be assessed by a qualified medical practitioner. P.W.2 who is Orthopedic Surgeon is certainly a qualified medical practitioner and his competence to assess the extent of permanent disability and issuing a disability certificate cannot be doubted, simply because the Doctor, who initially treated P.W.1 for the injuries, is not examined. The testimony of P.W.2 regarding the assessment of the extent of permanent disability cannot be rejected especially when the same is not discredited. The decision reported in New India Assurance Company Ltd., Hyderabad Vs. Sammayya @ M.Shankar (Workman) and another[1] is not applicable to the facts of the present case for the reason that in the above case, no doctor was examined to prove the contents of the disability certificate. In the present case, P.W.2 has duly proved the contents of the certificate-Ex.A-5 issued by him and testified to the extent of permanent disability at 50%. Though the impact of such disability on the earning capacity of respondent No.1 herein is not separately assessed by P.W.2., still, having regard to the fact that respondent No.1 was a labourer engaged for loading and unloading purpose and that he suffered two fracture injuries, one on the right leg and another on the spine which lead to physical disability to the extent of 50% and in view of the testimony of P.W.2 that respondent No.1 cannot do hard labour, it must be held that the assessment of loss of earning capacity made by the learned Commissioner duly taking into consideration 50% of the permanent disability as born out by the medical evidence on record is just and reasonable. The learned Commissioner has taken the income of respondent No.1 at Rs.30/- per day which comes to Rs.900/- per month and in view of the age of respondent No.1 who is aged 40 years, the relevant multiplier factor of 186.90 was applied and by taking into consideration 50% of disability, the learned Commissioner arrived at the compensation in a sum of Rs.42,052.50 ps which amount can, by no means, be held to be excessive or unreasonable, having regard to the serious nature of the injuries sustained by respondent No.1 herein. In these circumstances, it is held that there are no valid or justifiable grounds to interfere with the Award passed by the Tribunal. In the result, the appeal is dismissed. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J 10th November, 2009 AMD [1] 1995(3) ALT 470