IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.2510 of 2001 Date:14.12.2009 Between:- Mohd. Rahmath Ali ..Appellant/Applicant And Md.Ahmed Hussain and another .. Respondents/Opposite Parties 1 and 2 JUDGMENT:- This appeal is directed against the order dated 03.03.2001 passed in W.C.No.215 of 1997 on the file of the Commissioner for Workmen’s Compensation-cum-Assistant Commissioner of Labour, Hyderabad-IV wherein the claim of the appellant was allowed in part awarding compensation of Rs.1,77,354/- for the injuries sustained by him. 2. Heard learned counsel for the appellant. None appeared for the respondents. Perused records. 3. The appellant herein filed the claim application before the learned Commissioner seeking compensation of Rs.2,00,000/- for the injuries sustained by him while working as a driver of the lorry bearing No.AP 12T 5530 belonging to respondent No.1 and insured with respondent No.2 in an accident that occurred on 12.06.1997. According to the claimant, on that day, while he was driving the vehicle from Hyderabad towards Shadnagar and reached Palmakul check post on National Highway No.7, the vehicle met with an accident resulting in fracture of both bones of right leg. The applicant-driver was shifted to Osmania General Hospital where operation was conducted and the injuries resulted in permanent disability. 4. Respondent No.1-owner of the vehicle did not file any counter. Respondent No.2-insurer filed the counter opposing the claim. 5. During the enquiry, the applicant was examined as A.W.1 and the doctor, who examined him, was examined as A.W.2 and Exs.A-1 to A-7 were marked on his side. No oral evidence was adduced by the respondents and Ex.R-1 – copy of the policy was marked on behalf of respondent No.2. 6. On a consideration of the evidence available on record, the learned Commissioner held that the applicant sustained injuries in the accident that occurred in the course of employment and estimating the loss of earning capacity at 75%, awarded compensation of Rs.1,77,354/-. Not satisfied with the same, the applicant filed the present appeal seeking enhancement. 7. The evidence of A.W.2, the Associate Professor of Orthopaedics in Osmania General Hospital, who examined and treated the applicant-AW1, coupled with the disability certificate- Ex.A-1 and the discharge card–Ex.A-3 would show that the applicant had fracture of both bones of right leg grade III open and the fracture is exposed to the outer surface and the deformity was visible even to a naked eye and the fracture of the right tibia is not united. The learned Commissioner has noted in the impugned order that he observed the deformity and found the same to be correct. A.W.2 further deposed that the patient is walking on a pair of wooden auxillary crutches and the right leg cannot take weight because of the non-union of the bones and the limb is also shortened. It is also in his evidence that the movement of the knee, ankle and foot are restricted and the activities of daily life are affected due to the fracture as a result of which, the applicant cannot squat, sit or stand for long time. A.W.2 opined that the injuries are grievous and the physical disability is 50%. He categorically stated that it will not be possible for the applicant- driver to drive in future because of the deformity of the leg. The contents of Ex.A-1-disability certificate issued by him also show that the right tibia is not united and the fibula has united and patient is walking on a pair of wooden auxillary crutches. 8. From the medical evidence on record, it is clearly established that though the physical disability is estimated at 50%, the same has totally incapacitated the applicant from driving any vehicle because of the deformity, shortening of the leg and the restricted movement. It is, therefore, clear from the evidence on record that the applicant is no longer in a position to drive any vehicle at all as he himself is walking only with the aid of auxiliary crutches. Under those circumstances, as rightly contended by the learned counsel for the appellant, the learned Commissioner ought to have taken the loss of earning capacity as 100% instead of limiting the same to 75%. In view of the nature of the injury which led to the disability and the deformity of the right leg, it cannot also be said that the appellant was in a position to do any work and earn a decent living for himself. It is, therefore, considered just and reasonable to estimate the loss of earning capacity as 100% in the facts and circumstances of the present case. There is no dispute regarding the age or the wages taken into consideration by the learned Commissioner. By taking the loss of earning capacity at 100%, the total compensation payable works out to Rs.2,000x60=1,20,000/100=1,200x197.06=Rs.2,36,472/- but the same is limited to the amount of Rs.2,00,000/- as claimed. The impugned Award is modified accordingly granting total compensation of Rs.2,00,000/-. The respondents shall deposit the enhanced amount within thirty (30) days from today failing which, the appellant would be entitled for payment of interest at 9% per annum from the date the amount falls due. 9. In the result, the appeal is allowed, to the extent stated above. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J 14th December, 2009 AMD