IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.380 OF 2008 Between:- The New India Assurance Company Limited, Rep. by its Branch Manager, Branch Office, Nagarajupet, Kadapa City. …Appellant A n d P.Liyakath Ali Khan and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.380 OF 2008 JUDGMENT: This appeal is directed against the order dated 10-03-2008 in W.C.No.167 of 2005, on the file of the Commissioner for Workmen’s Compensation, Kadapa, wherein the claim of the first respondent- applicant was allowed-in-part awarding compensation of Rs.4,06,656/-. 2. Heard the learned counsel for the appellant-insurer and the learned counsel for the first respondent-applicant. None appeared for the second respondent-owner of the bus, though served with notice. Perused the records. 3. The first respondent herein filed the claim application before the learned Commissioner under Workmen’s Compensation Act seeking compensation of Rs.4,50,000/- on the ground that he was working as driver of the lorry bearing No.AP 04 T 0964 under the employment of the third respondent and that on 21-12-2004 while he was driving the lorry from Hyderabad to Madras with a load of chemical powder, a bus bearing No.AP.No.02 U 7575 coming in the opposite direction, driven by its driver in a rash and negligent manner, dashed against the lorry resulting in multiple injuries to the applicant, including grievous injury to the right leg. A case in Cr.No.83 of 2004 was registered against the driver of the bus by Peddamandadi Police. According to the applicant, he was shifted to District Hospital, Mahabubnagar for treatment and that the accident has resulted in permanent disability, on account of which he is unable to drive the vehicle. He further pleaded that he is aged 45 years and was drawing a salary of Rs.4,000/- per month as driver of the lorry. 4. The appellant-insurer employer filed a counter before the learned Commissioner opposing the claim and denying their liability to pay the compensation. 5. During enquiry, the applicant was examined as A.W.1 and the doctor, who treated him, was examined as A.W.2 and Exs.A-1 to A-6 were marked on his behalf. 6. On a consideration of the evidence available on record, the learned Commissioner awarded compensation of Rs.4,06,656/- with interest at 12% per annum. Aggrieved by the same, the present appeal is filed by the appellant-insurer. 7. The main contention of the learned counsel for the appellant is that the learned Commissioner erred in granting loss of earning capacity at 100%, though the applicant suffered physical disability only to the extent of 40%. 8. It is not seriously disputed that the applicant was driver of the lorry bearing No.AP 04 T 0964 and that he suffered injuries in the accident that occurred in the course of his employment as driver of the said lorry. The applicant, as A.W.1, testified that he suffered multiple injuries in the accident and he was taken to Government Hospital, Mahabubnagar and later he took treatment from A.W.2 Orthopaedic Surgeon at Rayachoti. Ex.A-2 is the wound certificate issued by the Government Hospital, Mahabubnagar. Ex.A-6 is the x-ray and Ex.A-4 is the disability certificate issued by A.W.2. Exs.A-2 and A-4 would show that the applicant suffered pain and deformity of right heel. Ex.A-4 is the disability issued by A.W.2 on 14-11-2007 i.e., about three years after the accident, wherein it is stated that the applicant was having deformity of right ankle and he was unable to bear weight on the right foot and he was not fit for driving heavy vehicle. It is further stated in Ex.A-4 that the permanent disability assessed is to the extent of 40% and the said disability is assessed based on the physical examination and wound certificate. A.W.2 also testified to the same effect. Thus, as per the medical evidence available on record, the physical disability of the applicant is only 40%. A.W.2 has not made any assessment of the functional disability or loss of earning capacity on account of 40% physical disability, either in Ex.A-4 or in his evidence. Thus, there is no medical evidence available on record to show the nature and extent of functional disability suffered by the applicant or the resultant loss of earning capacity. However, the learned Commissioner held that the loss of earning capacity is 100%, as A.W.2 doctor has stated that the applicant was incapacitated to function as driver. A.W.2 has stated in Ex.A-4 that the applicant is not fit for driving heavy vehicles. A.W.2 has nowhere stated that the applicant cannot drive any vehicle at all or that he cannot do any other work and earn for his livelihood. In the absence of any such medical evidence duly assessing the functional disability and the consequential loss of earning capacity as 100%, the learned Commissioner ought not to have taken the loss of earning capacity as 100%, especially when there is no estimation of the loss of earning capacity of the applicant by a competent medical authority. However, having regard to the fact that the applicant suffered physical disability to the extent of 40% and the disability certificate-Ex.A-4 shows that the applicant is not fit to drive heavy vehicles, it is considered just and reasonable to take into account the loss of earning capacity on account of physical disability at 75%. The age of the applicant and the wages earned by him and the multiplying factor applicable to his age are not disputed. Taking the wages of the applicant at Rs.4,000/- per month and applying the multiplying factor ‘169.44’, the compensation payable to the applicant towards loss of earning capacity works out to Rs.3,04,992/- (‘169.44’ x 60% x 75% x 4,000/-). The applicant is also entitled for a sum of Rs.1,065/- towards stamp duty. 9. The appellant is held entitled to claim interest at 7½% per annum from the date of filing of the claim application till the date of award and in the event of default in making the payment within the prescribed time limit, interest is payable in terms of Section 4-A (3) of the Workmen’s Compensation Act on the compensation amount from the date of expiry of the period of one month from the date of order passed by the Commissioner. The employer and the insurer are both held jointly and severally liable for payment of the principal amount of compensation and the interest thereon as stated above. The impugned award is modified accordingly. 10. In the result, the civil miscellaneous appeal is allowed-in-part to the extent stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 19th July, 2010. Lrkm.