THE HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No. 4772 of 2003 JUDGMENT: The present C.M.A. is filed against the orders passed in W.C.NO. 12 of 1999 on the file of the Commissioner for Workmen’s Compensation, Kurnool dated 10.9.2001. Appellant herein is the applicant before the Commissioner for Workmen Compensation, Kurnool. He filed a claim for Rs. 2 lakhs for the injuries sustained by him during the course of his employment in a road traffic accident. After evaluating the evidence on record, the learned Commissioner granted a total compensation of Rs.1,19,974/-. Being aggrieved with the said finding, the present C.M.A. is filed mainly urging that the Commissioner failed to consider the disability as 100% instead granted compensation while assigning the disability at 45% which is erroneous. Now the point for consideration is whether the appellant is entitled for enhancement of any compensation? According to the averments in the petition filed by the appellant herein S. Bhaskar that he was workmen under O.P.-1 as driver of lorry bearing No. AP21 T 1575 and O.P-2 is the insurer of the said vehicle. On 20.5.1997 while he was on duty driving the lorry towards Gooty side on Guntakal-Gooty road while reaching Nagasamudram cross road, near Gooty, he dashed against the lorry bearing registration No. AP 21 U 2448, which is coming in opposite direction resulting he sustained fractures to his both legs and multiple injuries and was immediately taken to Govt. Hospital, Gooty and from there to the Government General Hospital, Kurnool for expert treatment. It is further stated that he was getting a salary of Rs. 2,000/- per month from O.P-1. The owner of O.P-1 remained set exparte. O.P-2 filed counter denying that the applicant is not working as workman under O.P-1 and the claim is excessive on loss of earnings. The applicant himself examined as A.W.1 and examined Dr. Seshanna as A.W.2 and filed Exs.A-1 to A-6. On behalf of respondent none were examined, the insurance policy was marked as Ex.B-1. Exs.A-1 and A-2 are F.I.R. and charge sheet respectively which reads that the injured-applicant sustained injuries in the road traffic accident. Ex.A-3 is disability certificate issued by the Government Doctor, Ex.A-4 is the legal notice, Ex.A-5 is the driving license andEx.A-6 are the case sheet issued by the Government General Hospital, Kurnool. As per the evidence of A.W.2 the doctor, patient by name S. Bhaskar (L.W.1) admitted in Government General Hospital, Kurnool on 21.5.1997 with grievous injuries and he found 1. Fracture shft of left femur with displacement, 2. The incised wound on right foot and other injuries. He found that shortening of left lower limb by 2 ½ inches and noted clinico-radio logically that one 1.M.Nail (Intra- medullary nail means steel rod) is in the left femur of applicant, also found shortening of left leg. The learned Commissioner while awarding the compensation has taken into consideration the age, income, disability of the claimant. As per the driving license Ex.A-5 the applicant is aged about 26 years at the time of accident. The applicant has deposed that he is earning a sum of Rs. 2,000/- per month towards his salary and Rs. 30/- per day as batta on the date of accident. But, there is no documentary proof to that effect. As the opposite party No.1 remained exparte, the tribunal had taken the minimum wages payable to him under the minimum Wages Act, 1948 and fixed accordingly. As per the impugned order, an amount of Rs. 2,045-25 including Rs. 1215/- towards basic wage and Rs. 830-25(6.75 point rate x 123 V.D.A. points) towards costs of living allowance is payable in respect of heavy vehicle driver in the employment of public motor transport towards minimum wage as on20.5.1997 in accordance with the G.O.Ms.No. 71, women development & Child Welfare and Labour( Lab.jj)dated 16.4.1991 effective 13.06.1991 and the notification dated 1.4.1996 of the Commissioner of Labour, A.P.Hyderabad regarding the cost of living index numbers and the same was deemed as the wage of the applicant as on the date of accident. On the said age and wage the applicant is entitled to an amount of Rs. 1,17,974/- (2000 x 60/100 x 45/100 x218.47) towards compensation in accordance with Section 4(1)©(ii) of the Act. The factum of accident and the validity of the insurance of the offending vehicle is not disputed. The counsel appearing for the appellant placed reliance on a decision reported in LINGAMPALLI RAJAM (DECEASED) THROUGH L.Rs. Vs. COLLIERY MANAGER, MORGAN’S PIT, SINGARENI COLLIERIES COMPANY LIMITED[1] and urged that when workman suffered loss of earning capacity of 100%, same has to be taken into consideration for computation of compensation. A perusal of the aforesaid decision is the deceased was that the deceased was an employee in Singareni Colieries Company Limited as trammer met with an accident on 26.7.1987. during the course of his employment as a result of the accident his leg was shortened by 4” and a plate was put and became totally disabled thereby resulting in loss of 100% earning capacity. His services were terminated by the respondent- Company with effect from 31.1.1989 as he was medically unfit for underground job. He made an application on 22.4.1990 under Section 4 of Workmen’s Compensation Act claiming compensation of Rs. 1,04,101-20. He was aged 50 years at the time of the accident and was drawing a monthly salary of Rs.1,700/-. The counsel appearing for the appellant vehemently contended that the assessment made by the Commissioner that the disability to the extent of 45% without considering the loss of earning capacity is incorrect and not in accordance with the provisions of the Act, as it is clear from Ex.A-3, the disability certificate, wherein it is declared that the petitioner is unfit to work as driver in view of the total disability that the loss of earning capacity is 45% and to substantiate his contention he draws the attention on the definition under Section 2(1)(f)(and 1) of the Act, which reads as follows: “(2(1)(g): ‘partial disablement’ means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement and where the disablement of a permanent nature such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time. Provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement. 2(1)(1): ‘total disablement’ means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to 100 per cent or more.” At this juncture, the proviso under section 2(1)(1) of the Act that the definition total disability has to be read not in isolation, but with reference to the injuries specified in part-I or Part-II thereof or from any combination of injuries specified in Part-II thereof. If the injury of the workman does not fall under the specified injuries and it capacitated the workman for all work, he was capable of performing at the time of the accident, that by itself cannot be treated as total disablement and in such situation, the disablement as assed by the doctor alone has to be taken as criteria. Counsel for appellant relied on a decision reported in MANAGEMENT OF T.N. CORPORATION LIMITED Vs. N. JAYAPALAN[2]. The decision of apex Court in Management of T.N. Corporation’s case (2nd cited supra) is to the effect that percentage of disability as issued by the doctor alone can be considered for the purpose of determining the compensation. In the instant case, the medical report Ex.A-3 clearly indicates that the workman become unfit to work as driver shortening of lower limb by 2 ½ inches and stiffness of left hip and left knee and accordingly estimated the loss of earning capacity of 45%. Admittedly, the injured is aged 24 years on the date of the accident. Simply because the disability is 45% to his lower limb, it cannot be said that he cannot be totally deprived of his earning capacity. As a diver, he may not have the capacity to drive the vehicle with this disability, but he can attend the duties other than the driving. Therefore, the finding of the learned Commissioner granting compensation of Rs. 1,19,974/- is quite reasonable in any view of the matter. Therefore, the arguments advanced by the counsel for the appellant by placing reliance on the decision reported in Lingampalli Rajam’s case (1st cited supra) do not applicable to the facts and circumstances of the case on hand. Accordingly, the C.M.A. is dismissed. ___________________ 7.4.2011 CHV [1] 2001 ACJ 350 [2] 1994(1) LLJ 838