THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Civil Miscellaneous Appeal No.957 of 2001 JUDGMENT: The 1st respondent herein was employed as a Driver, to work on a vehicle, bearing No.TDE 9360, owned by one Damarla Ramulu, who is no more and is represented by his son, the 2nd respondent. On 20.02.1994, when the vehicle was proceeding from Nakshatranagar to Repalle, at 4.30 p.m., an accident occurred, wherein the vehicle turned turtle and the 1st respondent received injuries to various parts of body, including the right leg. H e was admitted into the Government General Hospital, Guntur, and a case was registered. Stating that he was being paid salary of Rs.1,000/-, per month, and was aged 25 years, at the time of accident, the 1st respondent filed W.C.No.149 of 1994 before the Commissioner for Workmen’s Compensation, Gurntur. The owner of the vehicle and the appellant herein, the insurer, were made parties. Ramulu died during the pendency of the case. T h e 2nd respondent herein, the legal representative of Damarla Ramulu, filed counter disputing the ownership of the vehicle as well as the factum of the employment of the 1st respondent with them. The appellant also filed a counter requiring the 1st respondent to strict proof of the averments made by him. The existence of an insurance coverage was admitted. Through order dated 04.03.1999, the Commissioner awarded a sum of Rs.1,08,672/-, as compensation. The same is challenged in this appeal. Heard learned counsel for the appellant and learned counsel for the 1st respondent. Though an endeavour is made before this Court to dispute the existence of relationship of employer and employee between respondents 1 and 2, this Court is not inclined to accept the contention. The evidence on record discloses that an accident occurred and in the relevant records, it was clearly mentioned that the father of the 2nd respondent is the owner of the vehicle and that the 1st respondent is employed as a driver. Learned counsel for the appellant is not able to point out any serious defect in that finding. The principal contention is about the quantum of compensation. The 1st respondent deposed as AW.2 and the Doctor, who certified his disability, was examined as AW.1, and Exs.A.1 to A.6 were filed. AW.1 stated that the 1st respondent suffered disability to the extent of 40%. However, the Tribunal treated the disability as 100% by observing that the 1st respondent became unfit to function as driver. The wages of the 1st respondent were taken at Rs.1,000/- per month and he was aged 25 years. The view taken by the Commissioner that the disability suffered by the 1st respondent is 100%, cannot be sustained in law. The Supreme Court in Ramprasad Balmiki v. Anil Kumar Jain[1]; in National Insurance Company Limited v. Mubasir Ahmed[2]; in Oriental Insurance Company Limited v. Mohd.Nasir[3] and in Palraj v. Divisional Controller, North East Karnataka Road Transport Corporation and this Court in C.M.A.No.1183 of 2005 (National Insurance Company Limited represented by its Divisional Manager, Anantapur v. D.Sivasankar and another), discussed this aspect at length. It was observed that the disability must be taken as the one assessed by the Medical Practitioner and not with reference to the fitness or otherwise of the individual to perform the duties, which he was performing earlier. Viewed in that context, the disability of the 1st respondent needs to be taken at 40%. For the age of 25 years, the factor is ‘216.9’. The wage factor at 100% of disability would be Rs.600/-. 40% thereof would be Rs.240/-. The resultant figure would be Rs.52,056/-. The C.M.A. is partly allowed, reducing the compensation to Rs.52,056/-. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:01.12.2011 GJ [1] (2008) 9 SCC 492 [2] (2007) 2 SCC 349 [3] (2009) 6 SCC 280