IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE TWENTY FOURTH (24TH) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A. No.73 of 2009 Between: K Nagaiah @ Nagaraju … Appellant And: Sk. Nagulmeera & another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C M A No.73 of 2009 JUDGMENT: This appeal is directed against the order dated 29.11.2008 in WC No.20 of 2008 on the file of the Commissioner for Workmen’s Compensation, Hyderabad, wherein the said claim application filed by the appellant herein was for compensation was allowed awarding Rs.2,95,137/-. 2. Heard the learned counsel for the appellant and the learned counsel for 2nd respondent-insurer. Perused the record. 3. The appellant herein filed claim application seeking compensation of Rs.4 lakhs for the injuries sustained by him in the motor vehicle accident that occurred on 18.02.2008 while he was proceeding in the lorry bearing No.AP 24 V 9144 as a cleaner from Sivaganga Crusher at Deshmukhi village to Miryalaguda with a load of boulders. According to the appellant, when the driver stopped the lorry near a hotel, the appellant was checking the air pressure in the tyres and at that time another lorry bearing No.AP 13 T 9609 proceeding to Hyderabad came in a rash and negligent manner and dashed against the appellant, as a result of which, he sustained fracture of both bones of both legs. He was shifted to Osmania General Hospital, Hyderabad for treatment. The appellant was aged 25 years at the time of accident and he was drawing salary of Rs.4000/- per month. According to him, the injury was sustained during the course of employment. 4. The first respondent-owner of the lorry filed counter admitting the employment of the appellant with him as a cleaner and also admitting the factum of the appellant sustaining injuries in the accident that occurred during the course of employment. But according to him, the compensation is payable by the 2nd respondent-insurer as there is a policy coverage. The 2nd respondent-insurer filed counter opposing the claim and denying their liability. 5. During enquiry, AWs.1 and 2 were examined and Exs.A.1 to A.13 were marked on behalf of the appellant. No oral evidence was adduced by the respondents, but Ex.B.1 copy of the policy was marked. The learned Commissioner held that the appellant sustained an employment injury as the accident occurred during the course of his employment as a cleaner of the lorry. The said finding is not challenged by the respondents as no appeal is filed by them. The learned Commissioner further held that the appellant suffered 50% physical disability and assessed the loss of earning capacity at 75%. Applying the suitable multiplier factor to the wages of Rs.3012.50 as per G.O.Ms.No.83, LET & F (Lab-II) Department dated 22.11.2006, the learned Commissioner awarded compensation of Rs.2,94,049/- taking into consideration the loss of earning capacity of the appellant at 75%. Not satisfied with the award, the present appeal is filed by the appellant seeking enhancement. 6. The main contention of the learned counsel for the appellant is that when the doctor certified that the appellant suffered loss of earning capacity at 100%, the Tribunal was not justified in taking the same at a reduced rate of 75%. It is further contended that though the evidence on record showed that the appellant was earning Rs.4000/- per month as a cleaner, the Commissioner erred in taking the wages at reduced amount of Rs.3012.50. 7. No doubt, the first respondent in his counter admitted that the appellant was employed by them as a cleaner in the lorry and also admitted the wages as a cleaner at Rs.4000/- per month. The first respondent further stated that whatever compensation is payable has to be paid only by the 2nd respondent-insurer. The first respondent-employer is not examined nor any salary certificate issued by him or any other record by way of acquittance register etc. is produced to show that the appellant is paid wages at Rs.4000/- per month. In the absence of any such evidence, the Tribunal was justified in taking the minimum wages paid to a cleaner in a sum of Rs.3012.50 per month as per GO Ms.No.83. Simply because the first respondent admitted the employment of the appellant and also wages as claimed, the learned Commissioner is not bound to assess the compensation on the basis of the wages as claimed by the appellant in the absence of any evidence in proof of the said claim in a case like present one, where the owner-first respondent is virtually sailing with the appellant pleading that it is for the 2nd respondent-insurer to pay whatever compensation is payable. 8. The next question that arises for consideration is whether the learned Commissioner was justified in assessing the loss of earning capacity at 75%? 9. The appellant is said to have suffered fracture of both bones of both legs and he underwent treatment at Osmania General Hospital, Hyderabad. The discharge certificate Ex.A.4 shows that the appellant was admitted in the hospital on 18.02.2008 and discharged on 17.05.2008. AW.2 Orthopedic Surgeon, who issued disability certificate Ex.A.5 admittedly never, treated the appellant. According to him, he is running a private hospital and the appellant came to him on 01.09.2008 and on the same day, he issued certificate Ex.A.5. According to AW.2, he assessed the disability at 50% as partial and permanent disability and loss of earning capacity at 100%. He further deposed that the appellant developed stiffness of both knees and stiffness of left ankle and there is difficulty in sitting and walking and he requires major surgeries in near future. He claims to have issued Ex.A.5 certificate based on the case sheet, discharge card, X-ray and physical verification of the appellant. In Ex.A.5 AW.2 has noted the extent of disability at 50% and loss of earning capacity at 100% and he stated that the appellant cannot do labour work. Thus, the medical evidence on record shows that the appellant was having physical disability to the extent of 50%, which is partial and permanent and the loss of earning capacity at 100%. 10. In a decision in ‘K. Madhu v. Brij Kishore Pandiya[1]’, which is relied upon by the learned counsel for the appellant, this Court held as follows: “…A careful reading above two provisions would, therefore, disclose that in respect of an injury resulting in partial permanent disablement, which is not mentioned in the schedule, the loss of earning capacity is required to be assessed by a qualified medical practitioner and the compensation payable is at such percentage of the compensation payable in the case of permanent total disablement which is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. Explanation II also clarifies that while assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I. Thus, keeping in view the percentages of loss of earning capacity mentioned in Schedule-I regarding different injuries specified therein, the qualified medical practitioner shall have to assess the loss of earning capacity arising out of the injury, which had led to partial permanent disablement. It is only on such assessment being made by the qualified medical practitioner, the compensation payable in respect of injury not mentioned in Schedule-I can be estimated in terms of sub-clause (ii).” It was further held as follows: “…The extent of disability as proved by the medical evidence cannot be made co-extensive with loss of earning capacity. There can be cases where the physical disability is partial, whereas the loss of earning capacity is total and vice versa. In a given case where the loss of earning capacity is shown to be far exceeding the extent of physical disability in such case, irrespective of the percentage of physical disability, the loss of earning capacity has to be estimated. In the present case, there is no such evidence on record to show that the loss of earning capacity of the appellant has, in fact, been assessed by the medical practitioner as required under Section 4(1)(c) or that on such assessment it was found that the loss of earning capacity is far more than the extent of physical disability and the appellant's earning capacity got reduced in every employment which he was capable of undertaking on account of the disablement.” 11. In the present case also, there is no such medical evidence on record that goes to show that AW.2 has assessed the loss of earning capacity as required under Section 4(1)(c)(ii) and the explanation-II of the Workmen’s Compensation Act. There is nothing on record to show that AW.2 has assessed the said earning capacity having due regard to the percentage of the loss of earning capacity in relation to different injuries specified in Schedule-I. Schedule-I states that the loss of earning capacity is 100% in respect of certain injuries, which includes cases of amputation. When the medical practitioner AW.2 has not made the assessment of loss of earning capacity in terms of Section 4(1)(c) (ii) read with explanation-II, the learned Commissioner is justified in not taking into consideration the loss of earning capacity at 100% as assessed by AW.2. Even going by the evidence of AW.2 coupled with Ex.A.5 certificate, the appellant cannot do hard labour work owing to stiffness of both knees and difficulty in sitting and walking. Admittedly, the appellant was only a cleaner. The medical evidence on record does not lead to any inference that the appellant was incapable of doing any hard work, which he was capable of undertaking at the time of the accident. In other words there is no evidence on record to show that the partial permanent disability suffered by the appellant whose percentage is assessed at 50% in terms of physical disability had lead to total loss of earning capacity in the sense that his earning capacity is lost in every employment which he was capable of undertaking at the time of the accident. In the absence of any such evidence, the learned Commissioner was justified in taking the loss of earning capacity at 75%. 12. Learned counsel for the appellant relied upon the decision in ‘Pamarthi Subba Rao v. H.Ramarao[2]’ wherein the Division Bench of this Court held that ‘a workman can be treated as suffering from 100% disability if he is disabled to do the work which he was doing at the time of accident irrespective of his sufferance of injuries specified in Parts I and II of Schedule I to Workmen’s Compensation Act for awarding compensation on the basis of total disablement’. 13. In the above case, the workman who suffered employment injury was a driver and he suffered amputation of leg and therefore, he was held to be incapable of discharging duties as driver which he was performing prior to the accident and as such his case has to be considered as one of total disablement and the case of workman suffering amputation leading to total disablement. Therefore, total loss of earning capacity cannot be equated to the case of a workman like the present appellant, who suffered only the fracture of both legs, which is assessed to be only at 50% physical disability. Even in the case of amputation, which is scheduled injury, the percentage of the disability is only 90% depending upon the extent of amputation. The case of fracture of the leg cannot stand on higher footing than that of amputation in terms of loss of earning capacity. 14. Learned counsel for the 2nd respondent relied upon the decision in ‘Palraj v. North East Karnataka Road Transport Corpn.[3]’ wherein the workman bus driver suffered grievous injury which resulted in 65% of total disability and the medical officer estimated the functional disability at 20%, but the Commissioner took the same as 85%. The High Court held that the Commissioner has erroneously taken the loss of earning capacity at 85% contrary to the medical evidence, which has put the same as 20% and accordingly reduced the compensation. The apex Court while agreeing with the order of the High Court, however modified the functional disablement from 20% to 35% having regard to the appellant’s mobility on account of the medical treatment received after the accident and also because of the appellant’s loss of future earning capacity and also promotion. In the above case, the injured workman who was a driver was provided with an alternative appointment by KSRTC by posting him as an Attender. Interpreting Section 4(1)(c)(ii) of the Workmen Compensation Act, the apex Court held as follows: “…The aforesaid provision would indicate that where a workman suffers injury which is not specified in Schedule I to the Act, compensation is to be assessed on such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, permanently caused by the injury as assessed by a qualified medical practitioner. Since in the instant case, the nature of injury suffered by the appellant is not specified in Schedule I, the compensation has necessarily to be assessed on the basis of the loss of earning capacity caused by the injury which could amount to 100% disablement in a given case. In the instant case, however, although the appellant has lost the use of his legs for the purpose of driving a vehicle, which could be said to be total disablement so far as driving of a vehicle is concerned, he is in a position to earn a living other than by functioning as a driver, which, in fact, he is currently doing, having been posted as a peon by the respondent.” 15. Thus, in the above case, it can be seen that though the injured workman was found to be totally disabled so far as the driving of the vehicle was concerned, it was found that he was capable of earning a living otherwise and in fact he has secured alternative job also. 16. The contention of the learned counsel for the appellant that because AW.2 has stated that the appellant suffers from loss of earning capacity of 100%, the same has to be accepted in toto is untenable, firstly because AW.2 has not assessed the loss of earning capacity in terms of Section 4(1)(c)(ii) of the Workmen’s Compensation Act and secondly, there is nothing on record to show that the appellant is so disabled that he is incapable of doing any work to earn a living, inasmuch as the certificate Ex.A.5 only shows that he cannot do hard labour work. Under those circumstances, the learned Commissioner is justified in taking the loss of earning capacity at 75% and estimating the amount of compensation accordingly. The impugned order of the learned Commissioner does not therefore call for any interference. 17. In the result, the appeal is dismissed. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 24.08.2011 bss [1] 2010(3) ALD 159 [2] 2008(3) ALT 68 (DB) [3] (2010) 10 SCC 347