HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HON’BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISC. APPEAL No. 828 OF 2005 Friday, the Twenty Eighth day of October, Two Thousand and Ten Between United India Insurance Company Ltd., Rep. By its Divisional Manager, D.O.X, 10-5-54, Crystal Plaza, Masab Tank, Hyderabad Appellant AND Sk. Abdul Saleem and another Respondents JUDGMENT: This Civil Miscellaneous Appeal is directed against the order dated 31.08.2004 passed in W.C. No. 18 of 2004 by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad-I, allowing the claim application filed by the first respondent herein, in part granting a sum of Rs.1,95,281/-. The Insurance Company is the appellant and the workman is the first respondent. The facts giving rise to the filing of the above claim application are that the applicant while on duty on 25.02.2003 at 11.30 a.m., was proceedings from Vijayanagar Colony to Nampally, with passengers in the auto bearing No.AP-13/W-4222, and when auto reached near Road No.2, near Andhra Bank, Vijayanagar Colony, a van bearing registration No. AP 9V 665 came from Mehdipatnam side in a rash and negligent manner with high speed and dashed against the auto, as a result of which he received fracture of his forehead and other injuries over the body. He was shifted to Osmania Hospital, Hyderabad. The police, Humayun Nagar, registered a case in Cr.No. 65 of 2004. The first respondent was working as driver under the second respondent herein on a monthly wage of Rs.4,000/- and Rs.100/- towards batta and was aged 40 years at the time of accident. He claimed compensation of Rs.5,00,000/-. The case of the appellant herein before the Court below is one of total denial and pleaded that the claim is exorbitant and out of proportion. On behalf of the workman, he himself was examined as AW-1 and the doctor who treated him, was examined as AW-2. Exs. A-1 to A-10 were marked to substantiate his claim. Neither oral nor documentary evidence was adduced on behalf of the appellant or the respondent No.2 herein. The learned Commissioner for Workmen’s Compensation, Hyderabad-I, on appreciation of both oral and documentary evidence, assessed the percentage of disability and loss of earning capacity at 65% even though the doctor, AW-2, has assessed the physical disability at 40% and has awarded a sum of Rs.1,95,281/- taking the total minimum wage applicable as on the date of accident for Light Motor Vehicle Drivers at Rs.2,934/- and the age factor at 169.44, appropriate to his age as 45 years. Aggrieved thereby, the Insurance Company is in appeal under Sec.30 of the Workmen’s Compensation Act. Apart from raising the substantial question of law it is inter alia contended that the learned Commissioner ought not to enhanced the loss of earnings capacity over and above the percentage of physical disability assessed by the doctor, under Sec. 4(1)(c)(ii) of the Workmen’s Compensation Act more particularly when the first respondent has sustained a non-scheduled injury. As can be seen from the counter of the second respondent herein, who has employed the workmen – first respondent, he was paying Rs.4,500/- as the wages. Since there is no rebuttal evidence to this averment, the remuneration/wage of the first respondent can safely be taken at Rs.3,500/- per month. The doctor-AW-2, who treated the first respondent AW-1, has deposed that the injured sustained 40% disability and issued Ex.A-3, opining that his driving skills are reduced to a considerable extent. There is nothing on record to suggest that the possibility of his driving the auto are ruled out. In such circumstances, without there being any cogent and clinching evidence, the learned Commissioner has erred in enhancing the percentage of disability. Therefore, I am inclined to take the physical disability of the workman at 40%, as suggested by AW-2 under Ex.A-3. In the premise as above, as it is a non-scheduled injury and there being no evidence to support that the driving skills of the workman are vanished, the learned Commissioner has erred in assessing the disablement of the workman at 65%. Therefore, the compensation has to be assessed taking the disability of the workman at 40% and not at 65%, as was assessed by the learned Commissioner. Hence, the quantum of compensation determined by the learned Commissioner is reduced to Rs.1,42,330/-(169.44X3500/-X 60/100X40/100). The Civil Miscellaneous Appeal is, thus, partly allowed reducing the quantum of compensation from Rs.1,95,281/- to Rs.1,42,330/-. With this modification in the quantum of compensation, the rest of the order is confirmed in all aspects. No order as to costs. __________________________ Justice Ghulam Mohammed October 28, 2010 MAS