IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.209 OF 2008 Between:- United India Insurance Company Limited, Rep. by its Regional Manager, Regional Office, Basheerbagh, Hyderabad. …Appellant A n d Md.Sattar Ahmed and another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.209 OF 2008 JUDGMENT: This appeal is directed against the order dated 14-02-2008 in W.C.No.38 of 2005, on the file of the Commissioner for Workmen’s Compensation, Hyderabad, wherein the claim of the first respondent herein was allowed-in-part awarding compensation of Rs.2,09,706/- with interest at 12% per annum. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the records. 3. The second respondent herein was employed by the first respondent as cleaner of lorry bearing No.AP 16 TT 3730 on a salary of Rs.3,000/- per month. On 07-04-2005, the applicant was proceeding on the said lorry from Visaka factory towards Ingurti in the course of employment and in the outskirts of Mittabaspalli village, on account of rash and negligent driving of the driver, the lorry overturned and fell into a ditch, as a result of which some of labourers died on the spot and some other labourers and the applicant, who was a cleaner, sustained injuries. The applicant was rushed to Osmania General Hospital for treatment of injuries i.e., closed fracture to shaft femur of right side besides other injuries. He underwent an operation and a rod was inserted and was advised to undergo further treatment. Police, Karankote, Ranga Reddy District, registered a case in Cr.No.31 of 2005. The applicant was aged 22 years and was unmarried. 4. Before the learned Commissioner, the employer filed a counter admitting the employment of the applicant as a cleaner and also the wages as claimed and also the occurrence of the accident. The appellant herein, the insurer, opposed the claim and denied their liability to pay the compensation. 5. On the strength of the pleadings, the learned Commissioner framed the following points for consideration: i) Whether the applicant Mohd. Ghouse @ Shaik Ghouse met with an accident on 7-4-2005 and sustained injuries in the accident, which arose out of and in the course of his employment as cleaner on lorry bearing No.AP 16 TT 3730 under O.P.1? ii) If yes, what is the percentage of disability and consequent loss of earning capacity of the applicant? iii) Who are liable to pay compensation? And iv) What is the amount of compensation entitled by the applicant? 6. During enquiry, the applicant was examined as A.W.1 and Exs.A-1 to A-8 were marked on his side. The employer was examined as R.W.1 and Exs.R-1 to R-3 were marked on behalf of the first opposite party (owner of the lorry) and Exs.B-1 and B- 2 were marked on behalf of the second opposite party (insurance company). 7. On a consideration of the evidence available on record, the learned Commissioner held that the applicant was employed as a cleaner on the lorry and he sustained injuries in the accident, which occurred in the course of employment. The learned Commissioner further held that the applicant sustained 65% loss of earning capacity on account of 35% physical disability. Taking the wages of the learned Commissioner at 2,429/- per month, which is the minimum wage prescribed for a cleaner vide G.O.Ms.No.30 L.E.T & F (Lab.II) dated 27-07- 2000 and applying the suitable multiplying factor of ‘221.37’, the learned Commissioner has estimated the loss of earning capacity at Rs.2,09,706/-. Accordingly, an award was passed for a sum of Rs.2,10,625/-, including stamp fee of Rs.419/- and advocate fee of Rs.500/-. Aggrieved by the same, the insurer filed the present appeal. 8. It is not disputed that the applicant sustained fracture of right shaft femur bone and underwent treatment for two weeks in Osmania General Hospital. Though he filed the discharge summary-Ex.A-4, he has not examined any doctor, who treated him in the OGH. Though the claimant claims to have undergone an operation during which a rod was also fixed, no evidence is placed in support of the same. He filed Ex.A-6 disability certificate issued by one Dr.Datta Tamloorker on 17-11-2005 i.e., about 7 months after the accident. The said doctor who issued the discharge certificate is also not examined. Even going by the said disability certificate-Ex.A-6, the applicant suffered only 35% of physical disability. The learned Commissioner while noting that the physical disability is only 35%, however, admitted the loss of earning capacity at 65%. The impugned award does not disclose any reasons or basis for arriving at such a finding or making an estimate of loss of earning capacity at 65%. The applicant has not examined any doctor nor adduced any evidence to show that the physical disability of 35% has resulted in loss of earning capacity to the extent of 65%. In the absence of any such evidence, estimating the loss of earning capacity at 65% without any basis cannot be sustained, as the certificate-Ex.A-6 shows that the extent of disability is only 35% and the loss of earning capacity is also 35%. The tribunal ought to have taken the same into consideration instead of unilaterally enhancing the same to 65%, that too without any supporting evidence. Thus, taking the percentage of loss of earning capacity at 35%, the compensation that can be awarded works out to Rs.1,12,919/- (Rs.2,429/- X 60% X 35% X ‘221.37’). The applicant is, therefore, held entitled for a total compensation of Rs.,1,12,919/- including stamp fee of Rs.419/- and advocate fee of Rs.500/- with interest at 12% per annum as awarded by the learned Commissioner on the said amount. The impugned award is modified accordingly. 9. In the result, the civil miscellaneous appeal is allowed to the extent stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 30th June, 2010. Lrkm.