IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.Nos.1036 & 1040 OF 2008 Between:- C.M.A.No.1036 OF 2008 Upender Reddy …Appellant A n d Laxma Reddy and another …Respondents A N D C.M.A.No.1040 OF 2008 National Insurance Company Limited, Rep. by its Regional Manager, Mogul’s Courts, Basheerbagh, Hyderabad. …Appellant A n d Upender Reddy and another …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.Nos.1036 & 1040 OF 2008 COMMON JUDGMENT: C.M.A.No.1036 of 2008 is directed against the order dated 12.07.2007 in W.C.No.209 of 2004, on the file of the Commissioner for Workmen’s Compensation, Hyderabad, wherein the said claim application filed by the appellant herein, the applicant, was allowed-in-part, awarding compensation of Rs.2,60,367/-. The siad CMA is filed by the appellant herein seeking enhancement of compensation. 2. C.M.A.No.1040 of 2008 is filed by the insurer questioning the award. 3. Heard the learned counsel for the applicant and the insurer in both the appeals. Perused the record. 4. As both the appeals arise out of the same award, they are heard together and are being disposed of by this common order. 5. The applicant filed the claim application before the learned Commissioner seeking compensation of Rs.5 lakhs for the injuries sustained by him in a motor vehicle accident that occurred on 10-07-2004. According to the applicant, he was working as a driver on DCM van bearing No.AP 10 U 9864 belonging to the 1st respondent in the WC and that on that day, he was proceeding from Nalgonda to Miryalguda and that at about 2.35 A.M., an APSRTC bus bearing No.AP 11 Z 864 coming from Repalle to Hyderabad, dashed against the DCM van, as a result of which the applicant suffered fracture of left femur, besides other injuries, which included injuries to the head, hands and spinal cord and he was shifted to Gandhi Hospital, Secunderabad, where he took treatment up to 23.08.2004 and later continued treatment at MGM Hospital, Warangal. A case in Cr.No.81 of 2004 was registered by Tipparthi Police, based on the complaint given by the driver of the APRTC bus. It is stated that the applicant was aged 22 years and was drawing a salary of Rs.4,000/- per month. According to the applicant, the injuries resulted in 40% permanent and physical disability, which led to total loss of earning capacity as a driver. 6. The owner of the vehicle remained ex parte. The insurer filed a counter opposing the claim and denying their liability to pay the compensation. 7. During enquiry, A.Ws.1 and 2 were examined and Exs.A-1 to A-11 were marked on behalf of the applicant. No oral or documentary evidence was adduced by the owner or insurer of the vehicle. 8. On a consideration of the evidence available on record, the learned Commissioner held that the applicant sustained employment injury during the course of the accident. The learned Commissioner further held that the applicant has suffered loss of earning capacity to the extent of 65% on account of physical disability of 40% and taking the minimum wages of the driver at Rs.3,004/- as per G.O.Ms.No.30 dated 27.07.2000, the learned Commissioner awarded a total compensation of Rs.2,60,367/-. Not satisfied with the same, the applicant filed appeal in C.M.A.No.1036 of 2008 for enhancement on the ground that the injury has resulted in total loss of earning capacity and the learned Commissioner erred in taking the same only at 65%. The insurer filed an appeal in C.M.A.No.1040 of 2008 contending that the learned Commissioner ought to have restricted the loss of earning capacity only to 40%, instead of taking the same at 65%. 9. It is not disputed that the applicant was employed by the owner of the DCM vehicle as a driver and the applicant has suffered the injuries in the accident that occurred during the course of the said employment on 10.07.2004. The medical evidence of A.W.2 Dr.P.Kali Prasad Rao, Orthopaedic Surgeon of MGM Hospital, Warangal, who was Member of the Medical Board and who issued the disability certificate-Ex.A-6 would show that the applicant suffered partial permanent disability to the extent of 40%. A.W.2 testified that he examined the applicant clinically and radiologically and as a Member of the Medical Board issued the disability certificate-Ex.A-6. It is also in his evidence that the injury has led to shortening of the leg and as such the applicant cannot drive the vehicle, being a driver. His evidence would also disclose that the applicant has suffered post-traumatic stiffness of left hip and knee and due to the said disability, he cannot walk for long distances and cannot drive the vehicle properly. Thus, the medical evidence on record clearly established that though the physical disability on account of the injuries was estimated to be only 40%, the applicant cannot pursue his avocation as a driver, as he cannot drive the vehicle as before on account of the permanent disability. 10. The learned counsel for the applicant would contend that the functional loss of earning capacity on account of the disability is 100%, inasmuch as the applicant cannot drive the vehicle and pursue his occupation as a driver at all, though the physical disability is only 40%. The learned counsel for the insurer, on the other hand, would contend that there has been no independent assessment of the loss of earning capacity on account of the physical disability as contemplated in Explanation II to Section 4 (c) of the Workmen’s Compensation Act. 11. In similar circumstances, this Court in K.MADHU V. BRIJ KISHORE PANDIYA AND ANOTHER[1], wherein also the applicant was a driver and the physical disability was estimated at 40% and loss of earning capacity at 50%, held that having regard to the nature of injuries and extent of disability, loss of earning capacity can be estimated at 75%. After reviewing the case law on the subject, this Court held as follows: “A careful reading above two provisions would, therefore, disclose that in respect of an injury resulting in partial permanent disablement, which is not mentioned in the schedule, the loss of earning capacity is required to be assessed by a qualified medical practitioner and the compensation payable is at such percentage of the compensation payable in the case of permanent total disablement which is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. Explanation II also clarifies that while assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule-I. Thus, keeping in view the percentages of loss of earning capacity mentioned in Schedule-I regarding different injuries specified therein, the qualified medical practitioner shall have to assess the loss of earning capacity arising out of the injury, which had led to partial permanent disablement. It is only on such assessment being made by the qualified medical practitioner, the compensation payable in respect of injury not mentioned in Schedule-I can be estimated in terms of sub-clause (ii). It was further held as under: Section 2(1) (g) of the Act defines 'partial disablement' as follows:- “Partial disablement” means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: Provided that every injury specified (in Part II of Schedule I) shall be deemed to result in permanent partial disablement. The above proviso makes it clear that in the case of injuries specified in Part II of Schedule I permanent partial disablement is inferred. By necessary implication, it means that no such inference of permanent partial disablement can be drawn in respect of injury not specified in Part II of Schedule I and the same has to be proved as a matter of fact. As per the definition of the expression 'partial disablement' contained in Section 2(1) (g) where the disablement is of a permanent nature, the partial disablement means such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time. The medical evidence on record shows that the disablement suffered by the appellant is permanent in nature and it is also partial. It means that it is such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time. There is absolutely no evidence on record to show that the appellant has become disabled to the extent that it reduced his earning capacity in every employment in which he was capable of undertaking at that time. In other words, the evidence of A.W.2 does not disclose that the appellant is incapable of undertaking any other work, which he was capable of undertaking at the time of accident. Even assuming that the appellant was incapable of driving, going by the evidence of A.W.2, it does not lead to any inference that the appellant was incapable of doing any other work which he was capable of undertaking at the time of accident. In other words, there is no evidence on record to show that the partial permanent disability suffered by the appellant whose percentage is stated to be 40% in terms of physical disability had led to total loss of earning capacity, in the sense that his earning capacity is lost in every employment which he was capable of undertaking at the time of accident. In the absence of any such evidence, the learned Commissioner has taken the loss of earning capacity at 50%. In the circumstances, it was further held in the above case as follows: “In the facts and circumstances of the present case and in the light of the principles laid down in the above decisions though the qualified medical practitioner A.W.2 deposed that the appellant cannot drive any vehicle in future on account of the disability, still it cannot be considered that the appellant is totally incapacitated to the extent that he cannot do any work or earn any income by pursuing any other vocation or calling. It is to be noted that the physical disability assessed by the same medical practitioner A.W.2 is only 40%.” 12. Under those circumstances, it was held that the ends of justice would be met by estimating the loss of earning capacity at 75% in view of the medical evidence available on record regarding nature of the injuries and the extent of physical disability suffered by the applicant therein. In the present case also, having regard to the natures of injuries suffered and the extent of permanent disability, which is estimated by a competent medical board at 40% and having regard to the nature of the disability which has led to partial loss of earning capacity of the applicant as driver, it is considered that the ends of justice would be met by estimating the loss of earning capacity at 75%. 13. Regarding the income, the learned counsel for the applicant would submit that the applicant was earning Rs.4,000/- per month as a driver. However, the said claim was disputed by the other side and there was no evidence in support of the said claim of income at Rs.4,000/- per month. The Tribunal has, therefore, rightly taken the minimum wages into consideration as prescribed in G.O.Ms.No.30 dated 27.07.2000 i.e., basic wage of Rs.1,874/- and V.D.A of Rs.1,130/-, which comes to a total of Rs.3,004/-. It is not disputed that the applicant was aged 22 years and the relevant multiplying factor is ‘221.37’. Applying the same, the compensation payable would come to Rs.2,99,248/- (Rs.3,004/- x 60% x 75% x 221.37). The applicant is also entitled for Rs.519/- towards stamp fee and Rs.500/- towards advocates fee as awarded by the Tribunal, which comes to a total of Rs.3,00,267/-, which can be rounded off to Rs.3 lakhs. The applicant is also held entitled for interest at 7.5% per annum on the compensation amount from the date of filing of the claim application till the date of award and in the event of default in making the payment within the prescribed time limit, interest is payable in terms of Section 4-A (3) of the Act on the compensation amount from the date of expiry of the period of one month from the date of order passed by the Commissioner. The impugned award is modified accordingly. 14. In the result, C.M.A.No.1036 of 2008 filed by the applicant is allowed-in-part to the extent stated above. C.M.A.No.1040 of 2008 filed by the insurer is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 21st December, 2011 Lrkm [1] 2010(3) ALD 159