IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO.688 OF 2004. 28-01-2010. Between:- M.Laxmaiah .. Appellant/Applicant And M/s.Chanikya Traders and another ..Respondents/Opposite parties JUDGMENT:- This appeal arises out of the order passed in W.C.No.22 of 2003 on the file of the Court of the Commissioner for the Workmen’s Compensation and the Assistant Commissioner of Labour, Hyderabad-II. 2. The appellant is the injured-claimant before the Court below. He received grievous injuries to the right leg and other parts of the body on account of the rash and negligent driving of the lorry bearing No.AP 28U 9933, which came in the opposite direction and dashed the lorry, which was being driven by the appellant. Respondent No.1 is the owner of the offending vehicle and respondent No.2 is the insurance company with which the said vehicle was insured on the date of accident. All these facts have been established by the appellant before the Court below and they became final. The present appeal is only with regard to the quantum of compensation on the ground that the learned Court below committed error in computing compensation by considering the loss of earnings of the appellant as 70% instead of 100%. 3. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.2-Insurance Company. 4. Dr.Chandrasekhar Reddy, Orthopedic Surgeon in Apollo Hospital, Hyderabad, who treated the appellant and issued disability certificate, was examined as P.W.2 by the appellant in the Court below. This witness identified the appellant before the Court below and stated that he treated the appellant for non-union of fracture of right leg. He further stated that the appellant was earlier operated at Gandhi Hospital with an external fixator and the appellant had frank non-union and needs to undergo surgery. P.W.2 also deposed that he issued Exs.A-3, A-5 and A-8. He assessed the disability at 60%, which according to him is partial and permanent. But however, he specifically stated before the Court below that the appellant could not drive the vehicle any more and his loss of earning capacity is 100%. Exs.A-13 and A-14 filed by the appellant now received as additional evidence clearly disclose that an operation was performed on the appellant in E.S.I. Hospital, Sanathnagar, Hyderabad and his right leg was amputated above the knee. The photograph clearly shows that his right leg was amputated. 5. Even otherwise the learned Court below in Para No.2 of its Judgment mentioned that the medical record submitted by the appellant shows that he was injured in the accident and in the hospital records, the injuries sustained by him are clearly mentioned and that P.W.2–his Doctor categorically stated that the appellant needs to undergo another surgery for amputation of his right leg. The learned Court below also recorded its observation that the appellant had to be carried and could not move on his own and that the injuries are quite obvious to the naked eye. 6. However, the learned Court below recorded a finding that in view of the impending amputation, it thought it fit to add 10% more disability and consequently, calculated the percentage of disability as well as loss of earning capacity at 70%. 7. The appellant could able to establish by unimpeachable evidence that his right leg was amputated. Even P.W.2 deposed before the Court below that the appellant could not drive the vehicle and his loss of earning capacity is 100%. Therefore, the learned Court below ought not to have substituted its opinion to that of the Doctor and considered the disability at 70%. The disability, therefore, shall be taken as 100% and is considered as such in the present appeal. 8. The learned Tribunal took the statutory minimum wage of the appellant at relevant time at Rs.3,722.5/-, disability at 70%, relevant factor at 139.13 and calculated the compensation as follows: 3722.5x60/100=2233.5x139.13=3,10,746.85x70%=2,17,522.79 or 2,17,523/- Advocates fee- + 1,000/- __________ Total = Rs.2,18,523/- __________ But in this appeal, disability is considered as 100% instead of 70%. The appellant is entitled for total compensation of Rs.3,10,746.85ps-Rs.2,18,523/-=Rs.92,223.85ps. The enhancement, therefore, would be Rs.92,223.85ps. The enhanced amount shall carry interest at the rate of 6% p.a. from the date of application till the deposit. Respondent No.2-Insurance Company is directed to deposit the amount in the name of the Commissioner for Workmen’s Compensation, Hyderabad-II(TCs) within a period of thirty (30) days from the date of receipt of a copy of this order. 9. For the foregoing reasons, the appeal is allowed without any order as to costs. _________________ R. KANTHA RAO ,J 28th January 2010 AMD