HON'BLE MR JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL NO. 1833 OF 2002 Between: United India Insurance Company Limited .....APPELLANT AND 1. Sri K. Jagadish S/o K. Padmanabham and one another .....RESPONDENTS JUDGMENT: United India Insurance Company Limited is the appellant who filed the appeal challenging the quantum of compensation granted in WC No. 4 of 2001 dated 14.09.2001 on the file of the Commissioner for Workmen Compensation and Assistant Commissioner Labour, Circle-IV, Hyderabad, filed under Section 4(A) of Workmen’s Compensation Act, 1923, claiming a compensation of Rs. 2,50,000/- as against which, the Commissioner awarded compensation of Rs. 2,50,076/-. 2. The brief facts of the case are as follows: The applicant is a workman employed with the first respondent-Owner of the car bearing No. AP 09 AB4792, as Driver. On 26.11.2000 at about 09.30 PM while the claimant was proceeding from Bhongir to Hyderabad on the said Car, he lost control over the car and dashed against the road divider. As a result of which, the applicant sustained grievous injuries besides multiple fractures and the car got damaged in the accident. The police Ghatkesar Police Station has registered a case in Crime No. 166 of 2000. The applicant stated that he received serious grievous injures besides multiple fractures all over the body more particularly on his right leg. He stated that he was paid Rs. 2,500/- per month plus batta of Rs. 50/- per day and he was aged about 30 years at the time of accident. Hence, he claimed a lumpsum compensation of Rs. 2,50,000/-. 3. First respondent-owner of the car bearing No. AP 09 AB4792 admitted that the applicant has sustained injuries in the accident occurred on 26.11.2000 that arose out of and in the course of employment with the first respondent and he admitted that the applicant sustained grievous injuries and he was paid Rs. 2,500/- per month plus batta of Rs. 50/- per day. It is also stated that as on the date of accident, the car bearing No. AP 09 AB4792 was insured with the second respondent-United India Insurance Company Limited and the policy valid from 18.3.2000 to 17.3.2002. Second respondent-United India Insurance Company Limited also filed its counter denying the allegations and it did not admit that the applicant was having a valid driving license to drive the vehicle at the time of accident and did not admit that the vehicle has valid fitness certificate to ply on the road. It is also stated that they are not aware of the criminal case proceedings and the amount claimed is not in accordance with the Schedule of the Workmen’s Compensation Act, 1923 and the applicant is not entitled to claim the same. 4. On the basis of the above pleadings, the following issues were settled for trial. 1. Whether the Applicant sustained the injuries in an accident that occurred on 26.11.2000 while he was working as a car driver in the employment of the 1st opposite party? 2. If yes, what is the percentage of loss of earning capacity? 3. who are liable to pay compensation? 4. What is the amount of compensation entitled by the Applicant? 5. On behalf of claimant, he himself examined as AW 1 and one Dr. G. Subash Rao, Orthopedic Surgeon was examined as AW-2 and Exs. A-1 to A-8 were marked. On behalf of respondents none were examined but Ex.D1 Insurance Policy RW-1 was marked. 6. On consideration of the oral and documentary evidence, the Commissioner came to the conclusion that the applicant was in the employment of the second respondent-owner of the car as Driver and he met with an accident that arose out of and during the course of employment with the owner of the car. Ex. A1 reveals that the applicant was injured as a car driver on the said car in the accident on 26.11.2000. It is no doubt true that Ex. A8, original discharge ticket of the hospital together with the evidence of the competent orthopedic surgeon and Ex. A7 disability certificate which are corroborating each other and it can reasonably be assessed that the applicant sustained grievous injuries. There is shortening of lower limb by 1 ½ inch and he is unable to sit and squat. Therefore, taking into consideration of the all the evidence available on record, took the wages of the claimant at Rs. 2,000/- per month for the purpose of calculating the amount of compensation and the date of birth of the applicant as shown in the Secondary School Certificate Ex. A3 is 31.3.1970, therefore, the applicant has completed 30 years of age as on the date of the accident, the Commissioner calculated the amount of compensation entitled by the applicant as Rs. 2,49,576/- (2,000x60/100 x 207.98 = 2,49,576). The Commissioner allowed the exemption of Court fee of an amount of Rs. 500/- and granted total compensation of Rs. 2,50,076/-. Being aggrieved by the same, the Insurance Company filed the present Civil Miscellaneous Appeal. 7. The learned counsel appearing for the appellant- APSRTC submits that the Tribunal is wrong in assessing the annual dependency and without any basis the Tribunal assessed the amount at Rs. 30,000/- towards loss of dependency. He also submits that the multiplier 11 also wrongly applied for the age of 54 years. 8. Learned counsel appearing for the appellant-Insurance Company submits that the Commissioner ought to have observed that the medical certificate produced by the claimant shows that the disability was only to an extent of 45% therefore, the Commissioner was erred in awarding compensation as it is a case of permanent total disablement instead of treating it as a permanent partial disablement. He also submits that the Commissioner ought not to have accept the evidence of AW-2 in the absence of any evidence or documents from Gandhi Hospital in which the claimant was treated. 9. Heard the learned counsel appearing for the appellant and also perused the entire material made available on record. 10. It is no doubt true that the accident was occurred and the applicant was joined at Gandhi Hospital on 30.11.2000 and he was discharged on 25.1.2001 from the hospital. There is shortening of lower limb by 1 ½ inch and the applicant is unable to sit and squat. As seen from Ex. A-6, the applicant with the injuries cannot drive any vehicle in future though the disability has been assessed by a competent doctor at 45%; in fact the driver will never be able to undertake his earlier profession as a driver. Therefore, the Commissioner rightly held that functional disability suffered by the applicant is 100% as he will never be able to do the job which he was doing before the accident and accordingly calculated the amount taking into consideration of wage limit for the purpose of calculating the amount of compensation taking the wage of the claimant as 2,000/- per month and granted compensation at Rs. 2,49,576/- (2000 x 60/100 x 207.98). 11. In view of he above, I see no reasons to interfere with the order passed by the Commissioner and the order is well reasoned and based on facts and the Civil Miscellaneous Appeal is liable to be dismissed. 12. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date: 29.07.2010 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.