THE HON’BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No.3772 of 2004 And Cross-Objections (SR).No.61055 of 2004 COMMON JUDGMENT: This appeal is directed against the order, dated 27.07.2004, passed by the Commissioner for the Workmen’s Compensation and the Assistant Commissioner of Labour, Hyderabad-II (for short ‘the Commissioner’) in W.C.No.146 of 2002, wherein and whereby a sum of Rs.82,228/- was awarded as compensation for the injuries suffered by the applicant in the accident that occurred on 26.04.2002, out of and during the course of his employment. The applicant in the said W.C. filed the Cross-Objections seeking to enhance the compensation awarded by the Commissioner in the said W.C. The brief facts of the case are that on 26.04.2002, while the applicant-injured was proceeding on the auto trolley bearing No.AP 13U 1381 from Hyderabad to Kanukur side, and when it reached near Imamguda Bridge, suddenly one lorry bearing No.AHT 5919 coming in the opposite direction in a high speed and in a rash and negligent manner, dashed the said auto trolley, due to which, the applicant sustained grievous fracture injuries and hence, the claim petition before the Commissioner claiming compensation of Rs.2,00,000/- as he received injuries during the course of his employment. Before the Commissioner, on behalf of the applicant- injured, P.Ws.1 and 2 were examined and Exs.A-1 to A-8 were marked. On behalf of the insurer, R.Ws.1 and 2 were examined and Exs.B-1 and B-6 were marked. The Commissioner, after taking into account the entire evidence, both oral and documentary, on record, held that the applicant sustained injuries during the course of his employment in the said auto trolley, to which the second respondent in the appeal is the owner and the appellant is the insurer and accordingly, held that the owner and the insurer of the said auto trolley are jointly and severally liable to pay the compensation of Rs.82,228/-. Learned Standing Counsel for the insurance Company vehemently contended the identity of the applicant is not proved inasmuch the applicant-G.Mallesh, S/o Atchaiah in the said W.C. has produced the driving licence issued against one G.Mallaiah, S/o Anthaiah; that the said driving licence is not a valid one; and that the Village Sarpanch is not a competent authority to issue the identity certificate, which was marked as Ex.A-8 and hence, prayed to allow the appeal, thereby absolving the liability of the insurance company to pay the compensation to the applicant. Per contra, learned counsel appearing for the applicant- cross-objector contended that the applicant-G.Mallesh is called in the village as Mallaiah, i.e., the name of the applicant is Mallesh @ Mallaih and that taking into account Ex.A-8-identity certificate issued by the Sarpanch of the Village, the Commissioner rightly fastened the liability on the appellant, who is the insurer, and the owner of the said auto trolley to pay the compensation to the applicant. However, she submitted that the amount of compensation awarded by the Commissioner is disproportionate to the percentage of disability sustained by the applicant as a result of the said accident and accordingly, prayed to enhance the compensation awarded by the Commissioner. I have perused the relevant material available on record. The owner of the said auto trolley was examined as P.W- 2. He deposed that he employed the applicant as driver of the said auto trolley. He further stated that the photograph on Ex.A- 5-driving licence, which is in the name of one G.Mallaiah, and the applicant are one and the same. That apart, the photograph on Ex.A-5-driving licence and the photograph on the certificate- Ex.A-8 issued by the Sarpanch of the Village are one and the same. Hence, the cloud of doubt as regards the identity of the applicant, who is alleged to have sustained injuries in the said accident, vanishes. As regards the other contention of the learned Standing counsel for the insurance company that even if it is assumed that Ex.A-5-driving licence relates to the applicant, the same is not valid driving licence, it is to be noted that the said licence- Ex.A-5 was issued vis-à-vis a passenger auto, whereas the vehicle involved in the said accident is an auto trolley. So, there is no much variance and this itself does not disentitle the applicant from claiming the compensation for the injuries sustained by him. P.W-2-doctor deposed that he issued disability certificate to the applicant on 14.04.2003 and found the following injuries on the applicant, i.e., old fracture both bones of leg with hypertrophic non-union and also fracture of left medial malloulus with non-union. He further stated that the applicant was having limp, shortening and restriction of ankle movements, Osteoporosis of distal tibia and foot present. He estimated the disability sustained by the applicant as 25%. Section 4 (b) of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) reads as under:- “Where permanent total disablement results from the injury, an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor or an amount of sixty thousand rupees, whichever is more.” Section 4 (c) of the Act reads as under: - “Where permanent partial disablement results from the injury – (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; In the instant case, the injuries sustained by the applicant are not specified in Schedule-I i.e., they are non-schedule injuries. As per Ex.A-3- disability certificate, the applicant sustained permanent and partial disability to an extent of 25%, hence as per Section 4(b) and (c) of the Act, 60% of the wages- Rs.3,000/-, as P.W-2, owner of the said auto trolley, admitted to have paid Rs.3,000/- per month to the applicant, comes to Rs.1,800/-. As the applicant sustained 25% disability, 25% of Rs.1,800/- works out to Rs.450/- which multiplied by the relevant factor of ‘197.06’ gives Rs.88,677/-. In addition to this, a sum of R.10,000/- is awarded towards the pain and suffering undergone by the applicant, which cannot be proved but can only be perceived. Accordingly, the applicant is entitled to a total compensation of Rs.98,677/-, which shall be rounded off to Rs.1,00,000/- (Rupees One lakh only). The enhanced compensation shall carry interest at the rate of 6% per annum from the date of filing of the said W.C. till the date of realization. In the result, the appeal is dismissed and the Cross- Objections is allowed in part, to the extent indicated above. There shall be no order as to costs. ______________________________ JUSTICE GHULAM MOHAMMED 21st October 2010 dr