THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CMA Nos. 1033 and 1034 of 2007 JUDGMENT: These two appeals arise out of two separate orders dated 23.03.2007 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour III, Hyderabad in W.C.Nos.84 and 83 of 2005 respectively. Claimants in these two appeals are driver and cleaner of lorry bearing No. AAT 3600 which met with accident on 03.02.2005 when both the injured/claimants were on their jobs and during the course of their employment under owner of the lorry/insured/second respondent. There is no dispute about coverage of insurance in respect of risks to the claimants under the Insurance Policy. The appellant is insurer who issued the policy in respect of the accident vehicle. The dispute in these appeals is only in respect of quantum of compensation awarded by the Commissioner. The Commissioner assessed loss of earning capacity of the driver at 50% basing on evidence of Orthopaedic Surgeon-AW2 who certified partial permanent disability to the driver at 40%. Total compensation amount awarded to the driver by the Commissioner was Rs.2,44,386/-. Secondly, the Commissioner assessed loss of earning capacity of the cleaner at 60% basing on evidence of AW2-Orthopaedic Surgeon who certified partial permanent disability of the cleaner at 55%. The Commissioner awarded total compensation of Rs.1,73,742/- to the cleaner. It is contended by the appellant’s counsel that injuries sustained by the claimants in these cases are non specified and non scheduled injuries under the Workmen’s Compensation Act, 1923 (in short “ the Act”) and that they are not covered by Part I or Part II of Schedule I of the Act and that therefore loss of earning capacity has to be determined by the Commissioner having regard to guidelines contained in Section 4(1) (c) (ii) of the Act and explanation II thereunder. Section 4 (1) (c) (ii) reads as follows: (c) Where permanent partial disablement results from the injury: ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. Explanation II to Section 4(1) (c) (ii) of the Act reads as follows: “In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;” While assessing percentage of loss of earning capacity caused by non specified injury, the Court has to bear in mind not only loss of earning capacity as assessed by the qualified Medical Practitioner but also the percentages of loss of earning capacity in relation to different injuries specified in Schedule I of the Act. A single Judge of this Court in NATIONAL INSURANCE COMPANY LIMITED v D. SIVASANKAR[1] laid down the following guidelines in this regard: Therefore, while assessing the compensation to be awarded in respect of injuries, which do not find place in Schedule I, regard needs to be had, to the corresponding or proximate injuries in the said schedule. Simply because the employee sustained a non-schedule injury, the authority or Court cannot feel the liability, to award any compensation, of its own choice. Another important aspect to be borne in mind is that the disability or L.E.C., must not be assessed, exclusively with reference to the work or employment, which the employee was discharging at the relevant point of time. The definition of the words “partial disablement” and “total disablement” under Section 2(g) and (i) of the W.C. Act indicate that, it is the incapacity suffered by the employee to do “ all work which was capable of performing”, and not his specific work that he was engaged in, at the time the incident occurred. The consideration cannot be confined to the employment, in which the employee was placed, when he received the injury. The fact that the employee is capable of doing any other work, perfectly, notwithstanding his disability to continue in the same employment in which he was engaged, when he received injuries, becomes a relevant factor to be taken into account. The percentage of L.E.C. indicated against each of the injuries in the schedule does not leave any scope for variation, notwithstanding the suitability or otherwise of the workman to discharge the functions. A comparative assessment becomes relevant only in respect of non-schedule injuries. The percentage of disability becomes a guiding factor, and, in case, the authority or the Court intends to detach the percentage of disability from the percentage of L.E.C., strong reasons need to be assigned, and the consideration must disclose that Explanation-II to Section 4 (1) (c) (ii) was applied in its letter and spirit. ” The appellant’s counsel placing reliance on the ORIENTAL INSURANCE CO. LTD v MOHD. NASIR[2] contended that where the doctor assessed partial permanent disability at 15% for a workman, the Supreme Court found fault with assessment of loss of earning capacity at 100% and restricted the said loss at 15% only. On the other hand, the respondent’s/claimant’s counsel placing reliance on S.SURESH v. ORIENTAL INSURANCE CO. LTD[3] contended that the Supreme Court assessed loss of earning capacity at 100% even though the doctor certified partial permanent disability of the workman at 93% and that percentage of disability certified by the doctor in relation to the patient’s physical disability cannot be equal to percentage of loss of earning capacity. This point also came up for consideration before two Division Benches of this Court. In NEW INDIA ASSURANCE COMPANY LTD v. ABDUL KHADER JILANI @ JILANI[4], this Court observed as follows: “Though none of the above judgments directly deal with question about the relevance of entries in Parts I and II of Schedule I in the matter of assessment of loss of earning capacity for non-schedule injuries, the ratio which can be deduced from the law laid down in those cases is that in the case of unspecified non-scheduled injuries, the compensation is to be paid keeping in view the loss of earning capacity as assessed by the qualified medical practitioner and the Court’s discretion to award compensation is not controlled by the entries contained in Parts I and II of Schedule I. The quantum of compensation to be awarded to the workman will always depend on the assessment made by the qualified medical practitioner on the issue of the loss of earning capacity of the workman. If the judgment of the learned Single Judge in National Insurance Company Ltd. V. Rajesh Heimandge (2001 (3) ALT 251) is considered in the light of the above discussion, we do not have any hesitation to hold that the same lays down a correct law.” In PAMARTHI SUBBA RAO v. H. RAMA RAO AND ANOTHER[5], this Court held as follows: “The crucial question is not of specified injuries, but whether there was total disability to do the work, which the workman was doing at the time of the accident. The importance of medical evidence is only in case where such disablement cannot be decided without the aid of medical evidence and in case where the position can be decided with or without medical evidence like amputation of limbs, where a decision can be taken with regard to the working capacity of workman, the medical evidence is not relevant and the question of the victim not suffering specified injuries is also not relevant. This point is amply clarified by the Division Bench in Jeelani’s case (supra), wherein it was observed that the Court’s discretion to award compensation is not controlled by the injuries contained in Parts I and II of Schedule-I. In all the above circumstances, the reference is answered as follows “in spite of there being no sufferance of injuries mentioned in Part I of Schedule-I or combination of injuries as mentioned in Part II of Schedule I, if there is 100% disability to do the work, the workman was doing earlier, it has to be treated that the workman has suffered 100% disability”. The reference is answered accordingly.” Thus while determining loss of earning capacity, disability certified by the Orthopaedic doctor has some basis, it cannot form sole basis for determining loss of earning capacity. It is a guiding factor to be taken into consideration along with other surrounding circumstances and resultant loss to the injured due to the injuries sustained by him in the accident. In the cases on hand, the doctor/AW2 did not assess loss of earning capacity, but assessed only partial permanent disability. He assessed disability of the driver at 40% and disability of the cleaner at 55%. A reference to doctor’s evidence would give details of injuries sustained by the injured in these two cases. AW2 was not the doctor who treated the injured, but he was examined by the workmen as medical expert on Orthopaedic side, he being an Orthopaedic surgeon. He examined the driver on 15.02.2005 both clinically and radiologically and found that he suffered fracture of tibia spine right knee and fracture of right calcaneum. He further found the following disabilities: 1) moderate stiffness of right knee, 2) painful limited movements of right knee and 3) range of movements form 0 to 60 degrees He opined that because of the above problems, the injured cannot sit and squat and cannot do heavy work and cannot drive the vehicle. He assessed the partial permanent disability at 40% as per Kessler’s guidelines. It is contended by the respondent’s/claimant’s counsel that when the injured driver cannot drive the vehicle, the loss of earning capacity should have been fixed at 100% as he will not be able to do the work/job which he was doing at the time of accident. But the Commissioner fixed loss of earning capacity at 50% only. In the case of the cleaner, AW2 who is the medical expert examined him on 15.02.2005 both clinically and radiologically and found that he suffered fracture of shaft of right femur and that due to the said injury he was having disabilities of non union, stiffness of right knee with painful movement of right knee and shortening of 1 ½ inch of leg. Though he underwent surgical operation, it was not successful. It is a case of non-union of the fractured bone or not a case of malunion. When there was no union of the pieces of the fractured bone, it would be practically impossible to bear load on that leg. The doctor further opined that because of the said problems, he cannot sit and squat and cannot do heavy work and cannot perform his cleaner duties. During the course of cleaner duties, the cleaner has to undertake bearing of heavy loads like tyres and other parts of the lorry while they were being replaced by the driver or mechanic. Even though AW2 certified partial permanent disability of the cleaner at 55% the Commissioner assessed loss of earning capacity at 60% only. Having regard to nature of injuries sustained by the driver and the cleaner and their position subsequent to treatment resulting in partial permanent disability, the Commissioner rightly assessed loss of earning capacity of the driver and the cleaner at 50% and 60% respectively because they were not able to undertake similar works which they were doing at the time of accident. I am of the opinion that loss of earning capacity assessed by the Commissioner and compensation awarded by the Commissioner in these two cases are just, legal and reasonable. In the result, both the appeals are dismissed with costs. ______________________________ SAMUDRALA GOVINDARAJULU,J 01.12.2010 lvl THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CMA Nos. 1033 and 1034 of 2007 Dt.01.12.2010 [1] 2006 (4) ALT 526 [2] 2009 (6) Supreme Court Cases 280 [3] 2010 (1) SCJ 584 [4] 2007 (4) ALT 607 (DB) [5] 2008(3) ALD 650 (DB)