THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.898 of 2009 JUDGMENT: This appeal is directed against the order, dated 28.06.2008, in W.C.No.13 of 2005 on the file of the learned Commissioner, Workmen’s Compensation and the Assistant Commissioner of Labour, Kurnool, wherein the claim of the 1st respondent herein-applicant, was allowed in part, awarding compensation of Rs.4,48,613/- with interest @ 18% p.a. from the date of the accident. 2. Heard both sides. Perused the record. 3. 1st respondent herein filed the claim application seeking compensation of Rs.4,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 01/02.06.2003. According to the applicant, he was working as a driver-cum-cleaner on the lorry bearing No.AP02 T7115 belonging to the 2nd respondent herein and on that day while he was proceeding from Ankaleswar in Gujarat to Katpadi of Tamil Nadu with a load of chemical powder, the accident occurred on the intervening night of 01/02.06.2003 near Pabberu village on NH-7 in Mahaboobnagar District resulting in cervico- dorsal spine injury and that he was admitted in General hospital, Kurnool for treatment. It is further stated that the applicant was aged 30 years and was drawing salary of Rs.4000/- per month as a driver-cum-cleaner of the lorry. 4 The owner of the lorry and the insurer filed counters opposing the claim and denying their liability to pay the compensation. 5. During enquiry before the learned Commissioner, A.W.1 was examined and Exs.A1 to A12 were marked on behalf of the applicant. No oral evidence was adduced, but Ex.B1-copy of the policy was marked on behalf of the insurer. 6. On a consideration of the evidence available on record, the learned Commissioner held that the applicant sustained employment injury in the accident which occurred during the course of the employment. The said finding is not seriously challenged in the present appeal. The learned Commissioner further held that the applicant was entitled for a total compensation of Rs.4,48,613/- while taking into consideration the loss of earning capacity at 100%. Aggrieved by the same, the insurer filed the present appeal. 7. The main contention of the learned counsel for the appellant is that the applicant was only a cleaner of the lorry and the Tribunal erred in taking his wages at Rs.3595/- per month on par with that of the driver as per G.O.Ms.No.30, dated 27.07.2000. 8. Learned counsel for the applicant on the other hand would contend that as the lorry was on a long course of journey spreading over a week, the applicant was taken as an additional driver. 9. Admittedly, the policy-Ex.B1 does not cover the risk of any additional driver, but covers the risk of one driver and one cleaner. It is also not disputed that the applicant was not driving the vehicle at the time of the accident and one Amjad Khan was the driver of the lorry at the time of the accident, who also sustained injuries and filed claim application-W.C.No.14 of 2005, which is the subject- matter of the appeal in C.M.A.No.1332 of 2008. 10. There is nothing on record to show that the applicant was taken as a second driver. On the other hand, at the time of the accident, it was Amjad Khan, who was driving the vehicle, even as per the version of the applicant, and the applicant was merely accompanying the driver. As the applicant has admittedly employed by the owner of the lorry the finding that he suffered employment injury on account of the accident, which occurred during the course of the employment, does not call for any interference and the same is not in fact seriously challenged in this appeal. However, in the absence of any evidence to show that the applicant was working as a driver, the Tribunal clearly erred in taking the wages of the applicant on par with the driver at Rs.3595/- per month as per G.O.Ms.No.30, dated 27.07.2000. As per the said G.O., the minimum wages prescribed for a cleaner is Rs.1437/- towards basic and adding the C.L.A. in a sum of Rs.744/- the total wages comes to Rs.2181/- per month. 11. It is not disputed that the injuries suffered by the applicant have resulted in a condition of Paraplegia of both lower limbs and therefore the physical disability was assessed at 60% and the loss of earning capacity at 100% by the learned Commissioner. Having regard to the nature of the injury sustained and the nature of the permanent disability resulting therefrom and in view of the fact that the same has led to the condition of Paraplegia of both lower limbs, whereby the applicant is totally incapable to do any work or earn any income, it is considered that the loss of earning capacity in the present case can be taken as 100%. The applicant was admittedly aged 30 years and the suitable multiplying factor as per the Schedule of the Act is 207.98. In the absence of any evidence in proof of income as Rs.4000/- per month, as claimed by the applicant, the minimum wages prescribed as per the G.O.Ms.No.30, dated 27.07.2000 can be taken as a guide. Applying the same, the compensation payable would work out to Rs.2,72,163/-(Rs.2181/- X 60% X 100% X 207.98). The applicant is held entitled for interest @ 7.5% p.a. The impugned award is modified accordingly. 12. In the result, appeal is allowed to the extent stated above. _______________________ G.V.SEETHAPATHY, J 21st December, 2011 Tsy