HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No.1617 of 2008 Date: 29-07-2011 Between: M/s. The New India Assurance Co. Ltd. ………. Appellant And Sri Y. Satyanarayana and another …….. Respondents * HON'BLE SRI JUSTICE K.S. APPA RAO + C.M.A.No.1617 of 2008 % 29-07-2011 # M/s. The New India Assurance Co. Ltd. ….Appellant Vs. $ Sri Y. Satyanarayana and another …. Respondents ! Counsel for the Appellant: Smt. A. Jayanthi Counsel for Respondents: Sri K.L.N. Rao, Advocate representing Sri Chandrasekhar Reddy Gopireddy <Gist : >Head Note: ? Cases referred: 1. 2004 ACJ 333 2. 2008 ACJ 2267 3. 2007 ACJ 845 4. 2008 ACJ 2259 5. 2003(4) ALD 183 (DB) 6. 2007(5) ALD 166 (DB) 7. 2011 ACJ 1 8. 2007 (4) ALT 607 (DB) 9. (2009) 6 SCC 280 HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No.1617 of 2008 JUDGMENT: This Appeal is filed against the order dated 23-10-2008 passed in W.C.No.111 of 2007 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Sri T. Anjaiah Karmika Samkshema Bhavan, RTC Cross Roads at Hyderabad. The appellant herein is the Opposite party No.2/Insurance Company in the said W.C. The parties hereinafter will be referred to as they are arrayed before the learned Commissioner. 2. The brief facts of the case are that the applicant was employed by the opposite party No.1 as a driver for his auto bearing No.AP 24V 1202. On 02-09-2004 while the applicant was proceeding as the driver on the said auto from Mall to Chinthapalli with passengers, and at about 13-00 hours, when he reached the outskirts of Kurmede village at K.M. Stone No.66/4, he lost control over the said auto as a result of which the auto fell in a ditch and the applicant sustained grievous injuries and multiple fractures all over the body. Immediately he was shifted to the Government Hospital, Devarakonda for treatment. Therefore, the applicant filed the W.C. claiming Rs.5,00,000/- as a lump sum compensation. 3. During the course of trial, on behalf of the applicant, he himself was examined as AW-1 besides examining the doctor as AW- 2 and got marked Exs.A-1 to A-9. On behalf of opposite party No.1, no oral or documentary evidence was adduced. On behalf of opposite party No.2, RW-1 was examined and Exs.B-1 to B-3 were got marked. The learned Commissioner, after considering the oral and documentary evidence adduced by both parties, came to the conclusion that the applicant met with the accident during the course and out of his employment, and assessed the loss of earning capacity at 60% and awarded the compensation of Rs.2,35,545/- and directed the opposite parties to deposit the amount within thirty days from the date of receipt of the order, failing which the applicant is entitled for interest @ 9% per annum on the amount of compensation from the date of accident. Aggrieved thereby, opposite party No.2/insurance company preferred the present appeal. 4. The only plea, which is urged on behalf of the appellant- insurance company, is to the effect that when the medical evidence available on record shows certain extent of disability, the percentage of loss of earning capacity cannot go beyond that and necessarily it has to be of the same percentage, but not above. Therefore, the learned Commissioner went wrong in assessing the loss of earning capacity of the applicant at 60% though the extent of disability, which the applicant suffered, is 40% and hence, the impugned order is not sustainable and it is liable to be set aside. 5. Repelling the aforesaid contentions, it has been pointed out on behalf of the applicant that the extent of disability and the loss of earning capacity cannot go together and each case has to be decided on its own facts and the percentage of loss of earning capacity need not necessarily be restricted only to the extent of disability and it can certainly go far beyond the percentage of disability. 6. On consideration of the aforesaid submissions and on perusal of the material on record, the only point, which arises for consideration, is whether, on the facts and circumstances of the case, the loss of earning capacity should be restricted only to the extent of disability which the applicant-injured sustained? 7. The factum of the accident is not disputed. As seen from the impugned order, the learned Commissioner based on the report of AW-2 (doctor), who assessed the physical disability and the loss of earning capacity of the applicant, estimated the loss of earning capacity at 60% and awarded the compensation on such basis. Admittedly AW-2 deposed that the applicant had sustained 1) fracture of right patella; and 2) fracture of right clavicle and other injuries and certified that the applicant developed i) moderate stiffness of right shoulder; ii) moderate stiffness of right knee; iii) limping present; and iv) painful limited movements of right knee. He further clarified that with the above injuries, the applicant cannot sit and squat and cannot drive the vehicle in future. He has assessed the physical disability of the applicant at 40% and estimated the loss of earning capacity at 60%, and also certified that the injuries sustained by the applicant are grievous in nature. 8. In support of the contentions raised by the learned counsel appearing for the appellant-insurance company, she has drawn the attention of this Court to the decisions reported in SHIVALINGA SHIVANAGOWDA PATIL v. ERAPPA BASAPPA BHAVIHALA [1], RAKESH v. NARAYAN [2], NATIONAL INSURANCE CO. LTD v. MUBASIR AHMED [3] and ORIENTAL INSURANCE CO. LTD v. SATISH SHARMA [4]. 9. In support of the contentions raised by the learned counsel for the respondents, he has relied on the decisions reported in CHARAN SINGH v. G.VITTAL REDDY [5], CHAIRMAN, E.S.I. CORPORATION, HYDERABAD v. SWAMINATH SINGH [6], RAJ KUMAR v. AJAY KUMAR [7] and NEW INDIA ASSURANCE COMPANY LTD v. ABDUL KHADER JILANI @ JILANI [8]. 10. On perusal of the aforesaid decisions relied on by both counsel, in the latest decision in RAJ KUMAR’s case (7 supra), the Apex Court in unequivocal terms observed that the Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. It is further observed that Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to ‘hold an inquiry into the claim’ for determining the ‘just compensation’. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the ‘just compensation’. The Apex Court also summarised the principles as under: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured- claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 11. In the present case on hand, the learned Commissioner, while evaluating the medical evidence, assessed the loss of earning capacity at 60% and awarded the compensation. 12. At this juncture, it is pertinent to refer to Section 2(15-B) of the Employees State Insurance Act, which defines ‘permanent total disablement’ and reads as follows: “permanent total disablement" means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;" From the above, under either of the aforesaid definitions, the disablement is the one to such an extent which reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of accident and the proviso therein again contemplates that every injury specified in Part II of the Second Schedule should be result to permanent partial disablement and again under proviso to Section 15-B also it reiterates that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more. 13. On a bare reading of the provision of law and having regard to the reference to both the extent of percentage of disablement and the loss of earning capacity, it amply leads to the conclusion that necessarily the extent of disablement which one suffers has to be one of the factors for assessing the percentage of loss of earning capacity. However, this provision does not contemplate that once the extent of percentage of disablement is fixed, the same has to be taken as the sole core basis for assessing the earning capacity. Therefore, the submission made on behalf of the appellant-insurance company that the extent of disability can form the core or final basis for assessing the loss of earning capacity cannot be accepted. 14. From the above decisions and the principles laid down thereunder, the only conclusion which can be arrived at is to the effect that, be it a scheduled injury or non-scheduled injury, the extent of disability, as proved or held to be proved by any medical evidence, will not be a final word in regard to the assessment of compensation for the loss of earning capacity. Each case has to be considered from its own facts and vis-à-vis the nature of employment and the duties with which one is concerned about. Therefore, having regard to the nature of the injuries, irrespective of the extent of disability, if one is not able to perform his duties, the same as he was doing earlier or he could do, necessarily the loss of earning capacity will have to be far more than the extent of disability. In the present case on hand, the learned Commissioner, while taking into consideration the medical evidence, assessed the loss of earning capacity at 60% and awarded the compensation. Therefore, in any view of the matter, the finding of the learned Commissioner on that score is valid and sustainable and the same is upheld. 15. The learned counsel appearing for the appellant- insurance company drawn the attention of the Court to the decision reported in ORIENTAL INSURANCE CO. LTD v. MOHD. NASIR [9] and contended that the order of the learned Commissioner in granting interest @ 9% per annum on the amount of compensation from the date of accident is erroneous. 16. As seen from the above decision (9 supra) of the Apex Court, their Lordships observed that the Act does not prohibit the grant of interest at a reasonable rate for the period of pendency of the claim petition. Their Lordships also held that the interest will also be payable @ 7.5% per annum from the date of filing of the petition till the date of award, and the rate of interest thereafter shall be payable in terms of the order passed by the Commissioner. 17. Therefore, in the present case on hand, the applicant is entitled to claim interest @ 7.5% per annum from the date of petition till the date of realisation on the amount of compensation awarded by the learned Commissioner. Accordingly, the impugned order is modified only with regard to rate of interest. 18. The Civil Miscellaneous Appeal is allowed in part subject to the extent indicated above. No order as to costs. _______________ K.S. APPA RAO, J Date: 29-07-2011 YCR Note: L.R. copy to be marked. [1] 2004 ACJ 333 [2] 2008 ACJ 2267 [3] 2007 ACJ 845 [4] 2008 ACJ 2259 [5] 2003(4) ALD 183 (DB) [6] 2007 (5) ALD 166 (DB) [7] 2011 ACJ 1 [8] 2007 (4) ALT 607 (DB) [9] (2009) 6 SCC 280