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.957 of 2008 Between: G. Ramulu … Appellant And: Y. Satyanarayana & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.957 of 2008 JUDGMENT: This appeal is directed against the order dated 07.01.2006 in W.C.No.55 of 2005 on the file of the Commissioner for Workmen’s compensation, Hyderabad, wherein the said claim application filed by the appellant herein seeking compensation was allowed in part awarding Rs.3,61,697/-. 2. Heard both sides. Perused the record. 3. The appellant herein filed claim application seeking compensation for the injuries sustained by him in the motor vehicle accident that occurred on 19.03.2005 during the course of his employment as driver of the tractor bearing No.AP 15 U 9920. The applicant sustained fractures in the said accident and he was shifted to Kagaznagar Government hospital and subsequently he was shifted to NIMS Hospital, Hyderabad and later shifted to Gandhi Hospital and during the course of treatment, both legs of the appellant were amputated. According to the appellant, he was drawing salary of Rs.5000/- per month besides Rs.30/- per day as batta as driver of the tractor. 4. The first respondent-owner of the vehicle filed counter admitting the employment of the appellant and the wages claimed by him. The 2nd respondent-insurer filed counter, opposing the claim and denying their liability to pay the compensation. During the course of enquiry, the appellant was examined as AW.1 and Exs.A.1 to A.9 were marked. No oral evidence was adduced by the respondents, but Exs.B.1 and B.2 and Ex.D.1 were marked on their behalf. After considering the material on record, the learned Commissioner held that the appellant sustained injuries in the accident during the course of his employment and in the absence of any documentary evidence in proof of the wages claimed at Rs.4500/- per month, the learned Commissioner based on G.O.Ms.No.30 LET & F (Lab-II) Department dated 27.07.2000, has taken the wages in a sum of Rs.3014/- per month being minimum wages payable to the driver and awarded compensation in a sum of Rs.3,60,595/-. Not satisfied with the same, the present appeal is filed seeking enhancement of the compensation. 5. The only contention of the learned counsel for the appellant is that the learned Commissioner ought to have taken the wages of the appellant at Rs.4500/- per month as claimed by him, which was not disputed by the first respondent-employer, instead of taking the minimum wages as per the G.O.Ms.No.30. 6. The finding that the appellant suffered employment injury is not challenged, as no appeal is filed by the respondents. It is also not disputed that both the legs of the appellant were amputated above the knee and therefore, loss of earning capacity of the appellant as driver was total. The learned Commissioner has therefore held that the appellant suffered total disability in terms of Section 2(1) (1) of the Workmen Compensation Act (for short ‘the Act’) and estimated the loss of earning capacity at 100%. 7. As per section 4(1)(b) of the Act, the amount of compensation shall be assessed in case of permanent total disablement at the amount equal to 50% of the monthly wages of the injured-workman, multiplied by the relevant factor. The appellant was admittedly aged 33 years at the time of the accident and applying the suitable multiplier factor of 199.40 and taking the wages at Rs.3014/- per month, the learned Commissioner estimated the total compensation payable at Rs.3,60,595/-. It is not disputed that the appellant was working as a driver. According to him, he was earning Rs.4500/- per month besides batta of Rs.30/- per day. The first respondent-owner of the vehicle has not disputed the same and on the other hand filed counter admitting the employment of the appellant as driver and also wages claimed. The Tribunal however disregarded the same on the ground that no documentary evidence was adduced in support thereof and preferred to take minimum wages prescribed under G.O.Ms.No.30 taking into consideration of Rs.3014/-. G.O.Ms.No.30 was of the year 2000. The accident occurred in the year 2005. The minimum wages prescribed in the G.O. may not be relevant for considering the compensation payable for the injuries sustained in the accident that occurred five years after issuance of the G.O. Further, the GO merely prescribes the minimum wages payable to the workman to ensure that under no circumstances, the workman is not paid wages less than the prescribed minimum. 8. Learned counsel for the appellant relies upon the decision in ‘New India Assurance Company Ltd., vs. Smt. Kalpana & others[1]’ wherein the apex Court held that ‘in the absence of any definite material about income of deceased, monthly contribution to the family, after deduction for personal expenses, fixed at Rs.3000/- per month’. In the above case, the claim was made under section 166 of the Motor Vehicles Act, and the deceased therein was a taxi driver, aged 33 years. According to the claimants therein, the deceased was earning Rs.8000/- per month. The claim was dismissed by the Tribunal on the ground that the accident occurred on account of the negligence of the deceased. On appeal, the High Court while upholding the claim, took the income of the deceased at Rs.4000/- per month in the absence of any definite material regarding the actual income of the deceased. The apex Court held at some point of time it is stated that the income of the deceased was Rs.6000/- per month and in the absence of any definite material about the income, monthly contribution to the family after deduction towards personal expenses can be fixed at Rs.3000/- per month. 9. In the present case also, the appellant is a driver, of course of a tractor and was aged 33 years. Having regard to the nature of the injury sustained by the appellant, which resulted amputation of both legs leading to total disablement and that the appellant has thereby suffered total loss of earning capacity, it is considered that the income taken by the learned Commissioner into consideration at Rs.3014/- based on the G.O. which prescribed minimum wages, is rather on the lower side and the amount arrived at does not reflect just and reasonable compensation. In the grounds of appeal, the appellant has stated that in the absence of cogent evidence, the Tribunal ought to have taken the income at Rs.4000/- per month. In the circumstances of the present case, it is considered that the income of the appellant as a driver can reasonably be estimated at Rs.4000/- per month. Applying the multiplier factor of 199.40, the amount of compensation payable would come to Rs.4,78,560/- [Rs.4000/- x 60/100 x 199.40) and adding Rs.602/- towards stamp fee and Rs.500/- towards advocate fee, total comes to Rs.4,79,662/-, which can be rounded to Rs.4,80,000/-. The appellant is therefore held entitled for the said amount of Rs.4,80,000/- with interest at 9% per annum from the date it becomes due i.e., from the date of expiry of the period of one month from the date of the order passed by the Commissioner. The impugned order is modified accordingly. 10. In the result, the appeal is allowed to the extent stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 24.08.2011 bss [1] 2007(1) An.W.R. 478 (SC)