THE HON’BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.1191 of 2005 Dated: 23-12-2010 Between: National Insurance Company, Hyderabad ………..Appellant and Sri B.Kaviraju Goud @ Kaviraju and another …………Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.1191 of 2005 JUDGMENT: This Appeal under Section 30 of the Workmen’s Compensation Act, is directed against the order dated 18-11-2004, passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad, (for brevity ‘the Commissioner’), in W.C.No.81 of 2004 filed by the applicant-respondent No. 1 herein claiming compensation of Rs.5,00,000/- for the cause of injuries sustained by him, in a motor accident when he was proceeding from Nizamabad to Hyderabad by driving DCM van bearing Regn. No.AP 13 U 946 belonging to the 2nd respondent herein, and when he reached near Masaipur village limits, he lost his control over the vehicle and dashed against a car and thereafter again dashed against a road side tree and due to which, he sustained grievous injuries besides multiple fractures on his both lower limbs. 2. Appellant is the 2nd opposite party-insurer, R-1 is the applicant, R-2 is 1st opposite party, owner of the offending vehicle in W.C.No.81 of 2004 on the file of the Commissioner. 3. Before the Commissioner, the 2nd respondent-who is the owner of the offending vehicle, remained ex parte and the appellant, which is the Insurer of the crime vehicle, filed the counter and contested the claim denying all the allegations made in the application. 4. The Commissioner having held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle, and taking into account the evidence of A.W.1, 1st respondent herein, besides A.W.2 and the documents marked under Exs.A-1 to A-15, awarded Rs.2,32,320/- towards total compensation. Aggrieved by the same, the appellant-insurer filed the present appeal. 5. Heard the learned standing counsel for the appellant, the learned counsel for the 1st respondent and the learned counsel for the 2nd respondent and perused the entire material available on record. 6. Learned standing counsel for the appellant contended that the Commissioner erred in granting higher compensation by taking the percentage of disability at 60% as against the medical evidence. He further contended that A.W.2, doctor, has categorically stated in his evidence that the applicant sustained only 25% disability. Under Section 4 (2) of the Workmen’s Compensation Act (for brevity ‘the Act’), the Commissioner has to confine the disability only to the extent as assessed by the doctor who treated the applicant. Therefore, the compensation granted by the Commissioner may be reduced. 7. Learned counsel for the respondent No.1 contended that the Commissioner has rightly awarded compensation after considering the oral and documentary evidence and therefore, there is no necessity for this Court to reduce the award granted by the Commissioner. 8. As seen from the record, it is no doubt true that the accident occurred accidentally but not due to any willful negligence of the applicant. The Commissioner fixed the total wages of the applicant as Rs.2934/- and there is no dispute with regard to the wages fixed by the Tribunal. However, as the Commissioner awarded Rs.2,32,320/- towards total compensation by taking into consideration 60% disability, in my considered view, which may not be granted without considering the evidence of the doctor who treated the applicant. 9. The doctor who was examined as A.W.2 stated in his evidence that there is partial and permanent disability at 25%. Ex.A-14, disability certificate, which was issued by the competent orthopaedic surgeon, also shows the nature of injuries. Therefore, the Commissioner ought to have taken into consideration the opinion of the doctors concerned while coming to the conclusion in respect of disability. Therefore, the applicant is not entitled for considering the percentage of disability at 60%, but at 25% only. Hence, if 25% disability is taken into consideration, the applicant is entitled to a sum of Rs.96,800/- (2934 (X) 60/100 (X) 25/100 X 219.95) only as per the Act. 10. In the result, the appeal, filed by the insurer, is allowed in part holding that the 1st respondent-applicant is entitled to only Rs.96,800/-, instead of Rs.2,32,320/-, as total compensation. The order in W.C.No.81 of 2004, dated 18-11-2004, is modified accordingly. There shall be no order as to costs. ____________________________ December 23, 2010 JUSTICE GHULAM MOHAMMED kvr