THE HON’BLE SRI JUSTICE R.KANTHA RAO. Dated this the 5th day of December, 2009. C.M.A.No.3117 of 1999 Between: The New India Assurance company Limited, Hyderabad. ………Appellant vs. P.Buchaiah and another. …….Respondents. THE HON’BLE SRI JUSTICE R.KANTHA RAO. C.M.A.No.3117 of 1999 JUDGEMENT: This appeal is filed by the New Assurance Company Limited, Secunderabad aggrieved by the Order dt. 26.11.1996 passed by the Commissioner for Workmen’s Compensation & Asst. Commissioner of Labour II Circle, Ranga Reddy in W.C.No. 138 of 1995. The 1st respondent filed an application before the lower court seeking compensation for the injuries sustained by him in a road traffic accident during the course of his employment under the respondent No.2. As against his claim for Rs. 60,000/- the lower court awarded a compensation of Rs. 40,712/-, by the impugned order. The order is challenged in the present appeal on two grounds. Firstly, that the lower court erroneously held that the 1st respondent is a workman under the 2nd respondent and also that the accident occurred during the course of his employment under 2nd respondent and secondly, the lower court failed to see that the disability certificate produced by the 1st respondent did not contain the loss of earning capacity and therefore the compensation is not in conformity with the requirements of Section 4 (1) (c) of the Workmen’s Compensation Act. I have heard the learned Counsel for the appellant. There has been no representation for the respondents since several adjournments. Now the point that arises for consideration and determination on the above mentioned grounds is whether the order of the lower Court is liable to be set aside. Point No.1: The contention of the learned Counsel for the appellant is that there is no mention in Ex:A.1, the certified copy of FIR that the 1st respondent was travelling in the lorry of the 2nd respondent as a workman and that though the FIR discloses that the passengers boarded the Lorry bearing No. AP 8 3387 at Sadasivapet, the lower Court ought not to have held that the 1st respondent is a workman under the 2nd respondent. There is no dispute with regard to the fact that the accident occurred on 21.4.1993 while the lorry bearing No. AP 8 3387 belonging to the 2nd respondent was proceeding from Sadasivapet to Vikarabad and that the said vehicle was insured under Ex:B.1 policy with the appellant, at the relevant point of time. As regards the employment of 1st respondent, there is positive evidence of Pw.1 (1st respondent) that he was an employee under the 2nd respondent on the above-mentioned lorry and that the accident took place while he was on the job entrusted to him by the 2nd respondent. Further, the 2nd respondent filed a counter specifically stating that the 1st respondent was employed by him as his workman and the accident took place during the course of employment of the 1st respondent on his lorry. However, a suggestion was put to Pw.1 in his cross-examination that he was not attending the work regularly under the 2nd respondent and the accident did not take place in the course of his employment. Though there is no documentary evidence showing that the 1st respondent was employed by the 2nd respondent, there is oral evidence of Pw.1 and admission of 2nd respondent in his counter that the 1st respondent was a workman under him and the accident took place during the course of his employment, no contra evidence was adduced by the appellant, except marking Ex:B.1, a copy of policy, the contents of which are not at all in dispute. Further, the FIR need not contain all the details. It was not lodged by Pw.1. Ex:A.2, the discharge ticket clearly shows the fact that the 1st respondent was shifted to the Government Hospital, Vikarabad and that he was treated as inpatient in the hospital. The lower court, placing reliance on the evidence of Pw.1, and taking into consideration the averments made in the counter filed by the 2nd respondent and also taking into consideration the contents of FIR (Ex:A.1) and the original discharge ticket (Ex:A.2), rightly held that the 1st respondent is a workman under the 2nd respondent. I do not find any error committed by the lower Court in coming to the conclusion that the 1st respondent is a workman under the 2nd respondent and that the accident occurred during the course of employment of 1st respondent under 2nd respondent. This point is answered against the appellant. Point No.2: As regards the computation of compensation, apart from the oral testimony of Pw.1, who is the applicant before the lower court, there is the evidence of Pw.2 the doctor that the 1st respondent was aged 33 years as on the date of accident and he sustained fracture to right knee which resulted in restriction of movement in the knee joint and limping is present. Though Pw.2, who is an orthopaedic surgeon and who treated the 1st respondent, did not mention the loss of earning capacity of Pw.1, he estimated the disability at 40%. The lower Court considering the wages of Pw.1 at Rs. 35/- per day took his income at Rs. 1,000/- per month for the purpose of computing the compensation. Further, the lower court taking into consideration the evidence of Pw.2 that the 1st respondent became unfit to work as a labourer and he can walk only with the aid a stick as indicated in Ex:A.3 disability certificate, determined the loss of earning capacity only at 40% without considering the same as total loss of earning capacity and awarded Rs. 40,712/-. The lower court did not commit any error of law and the compensation cannot be said to be contrary to the provisions of Section 4(1)(c) of the Workmen’s Compensation Act. The point is answered against the appellant. For the foregoing reasons, I hold that there are no merits in the appeal and the same dismissed. However, there shall be no order as to costs. _______________________ R.KANTHA RAO,J 5.12.2009. Krb. THE HON’BLE SRI JUSTICE R.KANTHA RAO. C.M.A.No.3117 of 1999 Dated this the 5th day of December, 2009.