IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.1602 of 2002 DATE:24.12.2010 Between: United India Insurance Co. Ltd., …… Appellant And Mr.Babu Rao and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.M.A.No.1602 of 2002 JUDGMENT: The insurance company filed this appeal questioning award of compensation of Rs.2,48,850/- granted by the Commissioner for Workmen’s Compensation-cum-Assistant Commissioner of Labour-IV, Hyderabad, in W.C.No.ACLIV/43/2001 to the injured driver of the insured vehicle who sustained injuries during the course of his employment as driver under the 2nd respondent. 2) The appellant did not dispute its liability under Ex.D-1 insurance policy. But, the appellant disputes quantum of compensation awarded by the Commissioner to the 1st respondent/injured/claimant. The Commissioner fixed salary of the injured at Rs.2,522.50 Ps per month in view of G.O.ms.No.58, W.D.C.W & L (Lab.II), dt.08.04.1991 and V.DA payable as notified by the Commissioner of Labour, even though the injured claimed his salary at Rs.3,000/- per month apart from batta of Rs.75/- per day. On this aspect there cannot be any dispute, since salary of the injured driver was taken at minimum wages prescribed by relevant notifications. 3) There is no dispute about factum of accident in which the driver sustained injuries. The driver examined himself as A.W-1 and Orthopaedic surgeon as A.W-2. A.W-2 issued Ex.A-31 disability certificate relating to the claimant. The claimant also filed Ex.A-2 to A-26 medical bills and Ex.32 X-ray taken on him. As per the medical evidence, the injured suffered communited fracture of right shaft of femur. Further, evidence of A.W-2 revealed that there was mal-union of the said fractured bones with 2 inches shortening of the leg. He also found stiffness of right knee with painful movements of the same. A.W-2 opined that the disability is partial and permanent to the extent of 50%. Since the injured was a driver, as per evidence of A.W-2 and also as per finding of the Commissioner, his loss of earning capacity was 100% as a driver because due to disability sustained by the petitioner, he will not be able to drive a vehicle and more particularly heavy goods vehicle. The Commissioner basing on reported decisions of the Supreme Court, this Court and other High Courts referred to in his order, came to the conclusion that loss of earning capacity of the injured as driver was 100% even though disability was found to be 50%. It is contended by the appellant’s counsel that A.W-2 was not the doctor who treated the injured and that A.W-2 had only examined the injured at the time of giving Ex.A- 31 disability certificate and that the doctor who treated the injured was not examined. When there is no dispute regarding factum of accident and the injured suffering injuries in the accident, the burden is on the injured to prove percentage of disability sustained by him and percentage of loss of earning capacity. It is A.W-2 who issued Ex.A-31 disability certificate after examining the injured. So, A.W-2 is the competent person to speak about the disability as well as the loss of earning capacity. In view of shortening of leg by 2 inches and also stiffness of movements of right knee, the injured is not capable of driving a heavy vehicle like lorry again. Thus, the doctor as well as the Commissioner rightly came to the conclusion that loss of earning capacity was 100% for the injured. On that basis, the Commissioner rightly fixed compensation payable to the injured as Rs.2,48,850/- apart from stamp duty of Rs.500/- and Advocate’s fees of Rs.500/-. The compensation awarded by the Commissioner to the 1st respondent injured is just and reasonable and it is also in accordance with law. 4) In the result, the appeal is dismissed. No costs. _______________________________ SAMUDRALA GOVINDARAJULU, J December 24, 2010 ksh