IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.77 of 2008 DATE:01.12.2010 Between: United India Insurance Co. Ltd., rep. By its Senior Divisional Manager. …… Appellant And P.Krishna Reddy, S/o.Sudhakarareddy and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.77 of 2008 JUDGMENT: The insurance company filed this appeal aggrieved by quantum of compensation awarded by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-IV, Hyderabad in W.C. No.41 of 2006. There is no dispute about insurance coverage and also the accident resulting in injury to the claimant/1st respondent. 2) A.W-2 who is working as Civil Surgeon, Specialist, Orthopaedics in Area Hospital, Golconda, Hyderabad was examined to prove percentage of disability and percentage of loss of earning capacity of the injured. He issued Ex.A-3 disability certificate dated 26.08.2006 after physical and radiological examination and after going through old medical records of the injured. He is not the person who treated the injured and he is not a member of the District Medical Board. In spite of it, he is a medical expert in Orthopaedics. Therefore, his evidence is entitled to weight. Medical evidence of the expert can only be one of the guiding factors in determining loss of earning capacity and cannot be the sole basis for such assessment. A.W-2 deposed that the injured was having one year old grade III B compound and Libran’s dislocation left foot with extensor tendon cut injury and soft tissue injury of right thigh resulting in grotesque deformity of left food and that left food of the injured was discharging sinus and loss of dorsi flexion of ankle and stiff toes apart from painful limb and infection of bones. He opined that there is 40% disability as per Mc.Brides scale which is permanent and partial and that due to the said injuries, he could not walk as prior to the incident and there is difficulty in lifting and carrying of heavy weight. A.W-2 assessed loss of earning capacity at 100% as cleaner. In cross-examination, A.W- 2 stated that the injured could walk without any assistance, but with painful limping and that he could board the vehicle and get down the vehicle with certain difficulty. The Commissioner accepted A.W-2’s evidence and found that loss of earning capacity of the injured was 100%. I am of the opinion that evidence of the doctor A.W-2 and finding of the Commissioner on loss of earning capacity at 100% is very generous and disproportionate to the disability. 3) It is contended by the 1st respondent’s counsel that the injured being a cleaner has to lift weights during the course of his work and particularly at the time of repairs to the vehicle and change of tyres. But, this is not a case where the injured suffered any boney injury. The injured suffered only deformity of left foot and cut injury to extensor tendon and soft tissue injury to right thigh. When A.W-2 examined the injured after one year of receiving the injury, he found discharge of sinus from left foot. It only suggests that there was no proper medical treatment taken by the injured during that period of one year. When there was no bony injury and when there was only dislocation resulting in deformity of left foot, loss of earning capacity cannot be 100% for a cleaner. Since there is no shortening of any leg even, there would not be any limping as such. There might be some pain due to non-healing of internal injury for want of proper medical treatment. That cannot lead to 100% loss of earning capacity of the injured/claimant. On a proper assessment of the injuries and disabilities which flow from the said injuries, loss of earning capacity can only be 40% and even if one desires to be lenient or generous, it cannot go beyond 50%. Therefore, I find that loss of earning capacity assessed at 100% by the doctor as well as the Commissioner are baseless and cannot be accepted. Thus, compensation payable in this case comes to Rs.1,60,280/- if it is rounded of nearest Rs.10/-. 4) In the result, the appeal is partly allowed altering compensation amount from Rs.3,20,555/- to Rs.1,60,280/-. No costs. _______________________________ SAMUDRALA GOVINDARAJULU, J December 1, 2010 ksh