IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY NINETH DAY OF APRIL TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.386 of 2002 Between: Chittimala Vijaya Kumar .. Appellant AND P. Adiseshu & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.386 of 2002 JUDGMENT: This appeal is directed against the order in W.C.No.61 of 2000, on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-II, Guntur, dated 03.11.2001. 2. The factual background for the appeal is that the applicant was employed as a driver under the first respondent herein on lorry No.AHK 9419 insured with the second respondent herein. The lorry dashed against another lorry No.1877 on 27.05.2000 at about 5.30 a.m. near Srinagar Village of Dachepalli Mandal for which Dachepalli Police registered Crime No.39 of 2000. The applicant sustained grievous injuries to the right leg and right thigh and was treated at Government Hospital, Gurajala and then at Government General Hospital, Guntur. The right leg was amputated upto the thigh and the applicant, aged 34 years, getting a salary of Rs.2,400/- per month, became permanently disabled from working as a driver. The applicant and his family lost their source of livelihood and they had spent Rs.50,000/- towards treatment and nourishment. Hence, the applicant sought for a compensation of Rs.3,00,000/-. 3. The employer remained ex parte before the Workmen’s Compensation Commissioner, while the insurer denied the allegations of the application, relationship between the applicant and the employer, the driving licence of the applicant and the other claims made by him. The insurer desired the claim to be negatived. 4. The Commissioner framed appropriate issues on the questions in controversy and examined A.Ws.1 and 2 and marked Exs.A-1 to A-7 during the enquiry. 5. The Commissioner rendered the impugned order firstly concluding from Exs.A-1 to A-3, First Information Report, Wound Certificate and Charge Sheet, that the applicant was involved in the accident on 27.05.2000 while he was working as a driver on the lorry of the first respondent. The age mentioned in the Wound Certficate-Ex.A-2 was also accepted and as there was no definite evidence of the monthly salary of the applicant, the monthly income was taken as Rs.2,000/- as per the statute. Though the applicant claimed that he has cent percent disability, the Commissioner referred to the evidence of the Professor of Orthopaedics as A.W.2 about 45% disability suffered by the applicant and the Commissioner also relied on the physical observation of the applicant by the Commissioner. He considered the disability to be only 45% and fixed a compensation of Rs.1,07,676/- apart from the stamp duty of Rs.216/-. On the total sum of Rs.1,07,892/-, the Commissioner directed interest at 9% per annum in view of the failure to deposit the awarded amount by the respondent responsible jointly and severally within 30 days from the date of the award. 6. The applicant is before this Court contending that only minimum wages were taken into consideration and not the actual wages and in any view, as the applicant can no longer work as a driver, the disability has to be taken as a loss of 100% earning capacity. 7. The substantial questions of law arising were stated to be the correctness of the Commissioner taking only the minimum wages into consideration and also taking only 45% disability to be the loss of earning capacity. 8. Heard Sri T.S. Rayalu, learned counsel for the appellant and Sri B. Devanand, learned standing counsel for the second respondent/insurer. The first respondent/employer remained unrepresented before this Court also. 9. The point for consideration is as to the legal basis for the calculation of the compensation payable to the appellant. 10. The conclusions of the Commissioner that the applicant was employed as a driver on the lorry of the first respondent and that he met with an accident out of and during the course of his employment while going as a driver on the lorry have become final being unchallenged by any party. The liability of the employer and the insurer of the lorry to compensate the applicant in terms of the Workmen’s Compensation Act, 1923, therefore, cannot be in dispute. 11. Coming to the quantum of compensation, the Commissioner accepted the age of the applicant as 34 years with reference to Ex.A-2-Wound Certificate which is also not challenged and though the applicant complains against the Commissioner taking into account only the minimum wages payable, in the absence of any authenticated document or reliable evidence about the quantum of the monthly income or wages of the applicant, the Commissioner cannot be considered to have gone wrong in limiting the monthly income of the applicant to Rs.2,000/- in terms of the statute for calculation of the compensation. 12. However, in so far as the loss of earning capacity is concerned, it is true that A.W.2, the Professor of Orthopaedics, assessed the disablement to be 45% obviously with reference to the whole body, but the question herein is not the percentage of disability in medical terms but the impact of the said disability on the earning capacity of the applicant. The applicant was carrying on his avocation as a driver by the time of the accident and he was admittedly hale and healthy before the accident. His right leg was amputated upto the thigh due to the injuries suffered in the accident and the applicant, without his right leg, can never continue his earlier avocation as a driver. Therefore, with reference to the principles laid down by the relevant precedents from the Apex Court and this Court on the aspect, it is clear that in so far as the avocation which the applicant was carrying on by the time of the accident is concerned, he became disabled cent percent in respect of his earning capacity. As such cent percent loss of earning capacity should have resulted in grant of compensation on that basis on a monthly income of Rs.2,000/- applying the appropriate factor 199.40 referable to the age of the applicant and granting 60% out of the same as compensation. So calculated, the compensation payable to the applicant comes to Rs.2,39,280/- and the order of the Commissioner has to be modified, accordingly, enhancing the compensation. 13. Therefore, the order, dated 03.11.2001, in W.C.No.61 of 2000, on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-II, Guntur, is modified by enhancing the compensation payable to Rs.2,39,280/-, while the other directions of the Commissioner in the impugned order shall remain. 14. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 29th April, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.386 of 2002 Date: 29th April, 2011 KL