THE HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2172 of 2003 Date: 15-12-2010 Between Shaik Subhani … Appellant/Applicant and V.Pothuluraiah and another … Respondents/Respondents THE HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2172 of 2003 Judgment: Aggrieved by the order dated 08-4-2003 in W.C. Case No.74 of 2002 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-1, Guntur the appellant filed this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’). 2. The brief facts of the case are that the appellant was working as cleaner of the lorry bearing No.ADF-7054 belonging to the 1st respondent and insured with the 2nd respondent-Insurance Company. On 16-02-2002 during the course of his employment, the lorry met with an accident at about 9.30 a.m., when the appellant was proceeding from Madras to Bhadrachalam, due to which the appellant sustained fracture injuries. The Station House Officer, Bitragunta Police Station registered a case in Crime No.12 of 2002 and after investigated into the case, a charge-sheet was filed against the driver of the lorry. 3. The appellant examined A.W.2 Dr. S.S.V. Ramana to prove the injuries and the disability sustained by him. According to A.W.2, the percentage of disability sustained by the appellant is 30% to 35%. 4. The appellant filed application under Section 22 of the Act claiming compensation of Rs.2,50,000/-. 5. Considering the medical evidence and the percentage of disability sustained by the appellant, the Commissioner awarded compensation of Rs.74,480/- payable by the respondents 1 and 2 jointly and severally within 30 days from the date of the order. 6. Aggrieved by the amount of compensation awarded by the Commissioner, the appellant filed this appeal claiming compensation of Rs.2,50,000/- on the ground that on account of the disability the appellant sustained 100% loss of earning capacity. 7. Learned counsel for the appellant submitted that though the percentage of disability as per the medical evidence is 35%, on account of the injuries sustained by the appellant he lost his total earning capacity, therefore the appellant is entitled to the balance compensation of Rs.1,75,520/-. 8. In support of his contention, learned counsel for the appellant relied upon the following decisions: (i ) New India Assurance Company Ltd. v. Abdul Khader Jilani @ Jilani[1], wherein it was held that the quantum of compensation be awarded depending on the assessment made by a qualified medical practitioner on the issue of loss of earning capacity of workman and in case of non-scheduled injury, examination of the qualified medical practitioner is an essential requirement of law to assess the loss of earning capacity. (ii) G.Anjaneyulu v. Alla Seshi Reddy[2], wherein it was held that the workman, who was a driver, while driving the car suffered fracture of right shoulder and right ribs and the doctor who certified disablement at 40% gave evidence that it disabled the injured from performing the job of driver which he was doing prior to the accident and the workman was entitled to compensation for the loss of earning capacity at 100% even though his physical disability was 40%. (iii) Gorla Obula Reddy v. K.Rajgopal Reddy and another[3], wherein it was held that the appellant, who was an unskilled labourer, working on a tractor received injuries when the said tractor met with an accident, as a result of which his right forearm was amputated, that for the injuries suffered by the appellant, the percentage of loss of earning capacity under Part II of Schedule I was 60%, whereas the Commissioner took the same as 75% and the deviation from Schedule can be only on the basis of evidence in relation to nature of work and the impact of injury upon it and that since the determination was not undertaken on these lines, the order under appeal was set aside and the matter was remanded to the Commissioner for fresh adjudication. (i v ) K.Janardhan v. United India Insurance Co. Ltd.[4], wherein it was held that a driver of the tanker suffered amputation of right leg up to knee joint, that the doctor opined disability at 65%, that the Commissioner allowed the compensation at 100% loss of earning capacity and the High Court found that as per Schedule I, amputation of leg amounted to 60% loss in earning capacity and reduced the compensation accordingly and in those circumstances, the apex Court held that the tanker driver who had suffered amputation of right leg from knee had suffered total disablement and 100% loss in his earning capacity and also held that he was even disqualified from getting a driving licence and restored the order of the Commissioner. (v) Pamarthi Subba Rao v. H.Rama Rao and another[5], wherein it was held that the workman suffering injuries during the course of employment, 100% disability to do work the workman was doing earlier and the workman was entitled for compensation on the basis of 100% disablement, inspite of his not suffering injuries mentioned in Part I of Schedule I or combination of injuries as mentioned in Part II of Schedule I. 9. As per Ex.A-3 Wound Certificate issued by A.W.2, the appellant received the following injuries: (1) Crush injury left leg about 8” x 3” bone deep deformity and tenderness present. (2) # tibia 1/3rd upper. 10. The Orthopaedician opined that the appellant sustained multiple lacerations over anterior aspect of the left leg, underlying segmental fracture of left tibia in palpable through wounds. The Medical Officer was of the opinion that the crush injuries received by the appellant were grievous in nature. 11. Admittedly, Ex.A-3 Wound Certificate was issued by Dr. C. Bhaskaraiah, Civil Assistant Surgeon, Area Hospital, A.P. Vaidya Vidhana Parishad, Kavali, Nellore district. The appellant examined Dr. S.S.V. Ramana, Orthopedic Surgeon attached to the Government General Hospital, Guntur. According to A.W.2, the appellant was admitted in the Government General Hospital, Guntur on 18-02-2000. X-ray of left leg reveals that fracture of both bones with loss of lateral two toes of left foot. On examination, there was deformity of left leg with loss of 4th and 5th toes of left foot. According to A.W.2, the extent of disability would be 30% to 35%. Unless the leg deformity is corrected, he cannot walk or do anything with his leg. In the cross- examination, A.W.2 has admitted that he has not done any operation because of the crush injury. 12. It is, therefore, clear from the medical evidence that it is not a case of amputation. The X-ray report indicates the fracture of both bones with loss of lateral two toes of left foot. In the cross-examination, A.W.2 has clearly stated that the ulcer may heel if the patient gets proper treatment and unless the leg deformity is corrected he cannot walk or do anything with his leg. 13. Therefore, by the above evidence, it is clear that there was no permanent disability, much less 100% disability. The order passed by the Commissioner considering the nature of injuries and the percentage of disability, is just and reasonable and warrants no interference. I see no valid reasons to enhance the compensation already awarded by the Commissioner. 14. The Commissioner has not awarded interest on the compensation amount awarded to the appellant. As per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD. VS. MOHD. NASIR[6], the appellant is entitled for interest on the amount of compensation at 7% per annum from the date of the application till the date of award and thereafter, at 12% per annum from the date of the award till realization. 15. In the result, the civil miscellaneous appeal is allowed in part. No costs. ____________________________ JUSTICE V.SURI APPA RAO 15th December, 2010. Ak THE HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.2172 of 2003 15th December, 2010. [1] 2007 (4) ALT 607 (D.B.) [2] 2002 ACJ 1392 [3] 2004 (6) ALD 534 [4] 2008 ACJ 2039 [5] 2008 (3) ALD 650 (DB) [6] 2009 (4) Supreme 589