IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE ELEVENTH (11TH) DAY OF AUGUST, TWO THOUSAND AND TEN PRESENT: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.160 of 2009 Between: National Insurance Company Ltd., Rep. by its Regional Manager, Hyderabad … Appellant And: Kuldeep Singh @ Kuldeep & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.160 of 2009 JUDGMENT: This appeal is directed against the order dated 30.10.2003 in W.C.No.21 of 2003 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Circle No.I, Hyderabad, wherein, the claim of the first respondent herein was allowed in part awarding compensation of Rs.1,78,335/-, which includes stamp fee of Rs.354/- and Advocate fee of Rs.1,000/-. 2. Heard both sides. Perused the record. 3. The first respondent herein filed claim application seeking compensation of Rs.2,00,000/- on account of the injuries sustained by him in the motor vehicle accident that occurred on 04.02.2003. According to the applicant, he was working as a driver in the lorry of the 2nd respondent herein, bearing No.HR 38 E 8585 on a salary of Rs.3,000/- per month and that while he was on duty as such on 04.02.2003 and was proceeding from Hyderabad to Delhi with paper load as a second driver, the driver of the lorry drove the vehicle in a rash and negligent manner near Kanchanbagh, Bandlaguda area, Hyderabad and dashed against the road divider, resulting in injuries to the applicant. It is further pleaded that the applicant was admitted in the hospital as inpatient for the fracture injury sustained by him on the left knee joint. A case in Cr.No.24 of 2003 was registered by Santhoshnagar PS. It is further pleaded by the applicant that he was aged 26 years at the time of the accident and on account of the injuries, he sustained permanent disability, which rendered him unfit to work as a driver. 4. The 2nd respondent, though served with notice, did not appear before the Tribunal and remained ex-parte. The appellant- insurer filed counter, opposing the claim and denying their liability. 5. During enquiry, the applicant was examined as AW.1 and Dr.Y.Thimma Reddy was examined as AW.2 and Exs.A.1 to A.7 were got marked on behalf of the applicant. No oral evidence was adduced by the appellant-insurer, but Ex.B.1 copy of the policy was marked on their behalf. 6. On a consideration of the evidence available on record, the learned Commissioner held that the applicant sustained injuries in the accident, which occurred during the course of his employment as a driver and the injury has led to permanent disability of 25%. The learned Commissioner, however awarded compensation of Rs.1,78,335/- by taking the percentage of the disability at 40% while estimating the loss of earning capacity. Aggrieved by the same, the present appeal is filed by the insurer. 7. Learned counsel for the appellant-insurer would contend that the learned Commissioner erred in taking the percentage of the disability at 40% when the medical evidence on record is to the effect that it was only 25%. He would further contend that the applicant, being a second driver, the risk in respect of him is not covered by the policy and therefore, the appellant is not liable to pay the compensation. 8. According to the applicant, he was employed as a driver on the lorry. Admittedly, there is coverage for the risk of the driver under the policy Ex.B.1. There is nothing on record to show that the applicant was engaged as a 2nd driver. The employer-2nd respondent herein does not dispute the employment of the applicant as a driver on the lorry. It is also not disputed that the applicant sustained injuries in the accident that occurred while the applicant was on duty as a driver on the lorry. It is therefore certainly an employment injury in respect of which, the applicant is entitled to seek compensation under the provisions of the Workmen Compensation Act and as the policy Ex.B.1 covers risk in respect of the driver, the appellant-insurer is liable to pay the same. 9. Insofar as the permanent disability is concerned, the evidence of AW.2, the doctor who examined the applicant and gave disability certificate Ex.A.4 is that the injuries have led to stiffness in the left knee joint, associated with right foot stiffness and estimated the physical disability at 25%. He further stated that there may be difficulty in driving the vehicle. The disability certificate Ex.A.4 also shows that the extent of permanent disability is only 25%. There is no evidence on record to show that on account of the disability suffered by the applicant, he cannot drive any vehicle at all or that he is totally incapacitated to do any other work. There is nothing on record to show that the applicant has suffered loss of earning capacity to the extent of 40%. When that is so, calculating the loss of earning capacity at 40% as done by the learned Commissioner remains without any basis. As the medical evidence on record shows that the physical disability suffered by the applicant is only to the extent of 25% and in view of AW.2’s evidence that there may be difficulty in driving the vehicle, it is just and reasonable to estimate the loss of earning capacity at 25%. 10. There is no dispute regarding the age of the applicant, who was stated to be aged 26 years at the time of the accident and the wages taken into consideration by the learned Commissioner at Rs.3427/- per month, being minimum wages of a driver as per G.O.Ms.No.30 dated 27.07.2000. Applying the suitable multiplying factor of 215.18 and taking the percentage of the loss of learning capacity at 25%, the applicant is entitled for compensation of Rs.1,10,613/- (215.18 x Rs.3427/- x 60/100 x 25/100). The applicant is also held entitled for a sum of Rs.354/- towards stamp fee and Rs.1,000/- towards Advocate fee as awarded by the learned Commissioner. Thus, in all the applicant is entitled for compensation of Rs.1,11,967/- (Rupees one lakh, eleven thousand, nine hundred and sixty seven only). It is stated that as per the award, the amount is already deposited in time and hence, payment of penalty and interest at 9% does not arise. The impugned award is modified accordingly. 11. In the result, the appeal is allowed in part to the extent stated above. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 11.08.2010 bss