THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CMA No. 2408 OF 2004 Dated: 18-11-2010 Between: Gaphoor Mahammed ... APPELLANT AND Smt. Bashetty Saroja and another ... RESPONDENTS THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CMA No. 2408 OF 2004 JUDGMENT: This is an appeal filed under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) against the order dated 26-05-2004 in W.C No. 60 of 2003 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nizamabad (for short ‘the Commissioner’). 2. The appellant – workman filed the said WC before the Commissioner claiming compensation of Rs.5,00,000/- on account of the injuries sustained by him during the course of employment. He pleaded that he was working as an ex-labourer under the first respondent on lorry bearing No. HGV TATA AP 25 T 2661 since one month prior to the accident and that on 18-12-2002 he went from Nizamabad to Yamcha to bring moram and after loading the moram while returning through Navipet to Nizamabad, on the way when the crime vehicle reached the limits of Fakeerabad at about 4.00 pm, the driver in order to escape from the cattle coming in the opposite direction applied sudden brakes due to which lorry became uncontrolled and dashed “under repair culvert” and turned turtle. It is further stated that the appellant received fractures on left leg, left hand wrist, injuries on left wrist, backbone, both legs and on other parts of the body and he was admitted in a private nursing home at Nizamabad along with others. According to him, he was drawing salary of Rs.5,500/- per month and batta of Rs.50/- per day and was aged about 30 years. 3. The first respondent, owner of the crime vehicle filed counter stating that the appellant was paid Rs.4,700/- per month and batta was not paid. The second respondent – Insurance Company filed counter denying all the material allegations. 4. On the strength of the pleadings, the Commissioner framed necessary issues as to whether the appellant is a workman within the meaning of the Act and whether the accident occurred during the course of employment and if so, to what relief he is entitled. On behalf of the appellant, PWs 1 and 2 were examined and Exs.A-1 to A-11 were marked and RWs 1 and 2 and Exs.B-1 to B-4 were marked on behalf of the respondent – Insurance Company. On a consideration of the oral and documentary evidence available on record, the Commissioner answered the first issue in favour of the appellant and as regards the second issue, an amount of Rs.1,12,309/- was awarded towards compensation. Aggrieved by the same, the present appeal is filed by the appellant. 5. The learned counsel for the appellant vehemently contended that though the first respondent stated that the appellant was earning Rs.4,700/- per month, the Commissioner has taken his wages as Rs.1,800/- per month. He further contended that as per the doctor who was examined as PW 2, the disability sustained by the appellant is 75%, but the Commissioner has taken it as 50% only contrary to Section 4 (c) (ii) of the Act. 6. The learned counsel for the respondent – Insurance Company contends that the compensation awarded by the Commissioner is just and reasonable. 7. There is no dispute with regard to the rash and negligent driving of the driver of the crime vehicle. As regards the monthly income of the appellant, the owner of the crime vehicle who is examined as RW 1 deposed that she paid Rs.4,700/- per month to cleaner, but the Commissioner has granted only Rs.1,800/- per month which in my considered view is very meagre and if Rs.4,000/- per month is taken as the earnings, ends of justice would be met. Insofar as disability is concerned, the doctor who is examined as PW 2 assessed the disability sustained by the appellant at 75% and issued Ex.A-7 disability certificate. As per Section 4 (c) (ii) of the Act, with regard to non-schedule injury criterion for assessing the compensation is as per the assessment made by a qualified medical practioner. Hence, in my considered view the Commissioner has erred in taking the disability at 50% only and, therefore, the disability suffered by the appellant should be taken at 75%. The relevant factor as per schedule IV of the Act is 207.98. Then the amount of compensation comes to Rs.4000X60/100X207.98X75/100 = Rs.3,74,364/- which is rounded of to Rs.3,75,000/-. Therefore, the compensation awarded by the Commissioner is enhanced from Rs.1,12,309/- to Rs.3,75,000/-. The enhanced amount of compensation shall carry interest at the rate of 7% from the date of petition till the date of realisation. 8. With the above modification, the civil miscellaneous appeal is allowed in part. There shall be no order as to costs. GHULAM MOHAMMED, J 18-11-2010 ks