HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.682 of 2003 Date: 10-12-2010 Between Chinthala Mohan … Appellant/Applicant and Abdul Raheem and another … Respondents/Opposite Parties HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.682 of 2003 Judgment: This appeal is directed under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the W.C. Act’) against the order dated 10-7-2002 in W.C.No.131 of 2001 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nizamabad, whereby the Commissioner awarded compensation of Rs.1,14,367/-. 2. The appeal arises from the following facts: The appellant was working as driver of jeep bearing No.AP25T- 20 belonging to the 1st respondent, which was insured with the 2nd respondent. On 02-11-1999 while the appellant was driving the jeep along with cleaner and passengers from Nizamabad to Armoor and when the jeep reached near Narasimha Swamy Temple Kaman, Manikbhander village sivar, it dashed against the lorry bearing No.AAJ-9537, which was coming from opposite direction, due to which the appellant and the inmates of the jeep sustained fractures and grievous injuries. The appellant received fracture injury to the right hand, head, chest and other multiple injuries all over the body. On account of the injuries sustained in the accident, he became permanently disabled and unable to attend to work as usual. Therefore, he claimed compensation of Rs.2,00,000/-. 3. The appellant was examined as A.W.1. He also examined Dr. T.Narsing Rao, Orthopedic Surgeon, as A.W.2 and marked Exs.A- 1 to A-6. No oral or documentary evidence was adduced on behalf of the respondents. 4. Considering the evidence on record, the Commissioner assessed the income of the appellant at Rs.2,000/- per month and after applying the relevant age factor ‘211.79’ awarded compensation of Rs.1,14,367/-. 5. Learned counsel for the appellant submitted that due to the accident the appellant became permanently disabled and as per the evidence of A.W.2, Orthopedic Surgeon, the disability sustained by the appellant is 75% and he is unable to perform the duties as driver as was doing prior to the accident. Therefore, the disability sustained by the appellant may be treated as 100%. Hence, the appellant is entitled for total compensation of Rs.2,00,000/-. 6. In support of his contention, learned counsel for the appellant relied on a decision of the Hon’ble Supreme Court in K.JANARDHAN v. UNITED INDIA INSURANCE CO. LTD.[1]. In the said case, the driver of the tanker suffered serious injuries and also amputation of the right leg up to the knee joint. The Hon’ble Supreme Court held that the appellant had suffered a 100% disability and incapacity in earning his keep as a driver as his right leg had been amputated from the knee and upheld the order passed by the Commissioner basing on 100% disability. 7. Learned counsel for the appellant further relied on the decision of a Division Bench of this Court in Pamarthi Subba Rao v. H.Rama Rao and another[2], wherein it is held as under: “In spite of there being no sufferance of injuries mentioned in Part-I of Schedule-I or combination of injuries as mentioned in Part-II of Schedule-I, if there is 100% disability to the work, the workman was doing earlier, it has to be treated that the workman has suffered 100% disability.” 8. Relying on the above decisions, learned counsel for the appellant submitted that the appellant suffered permanent disability on account of the injuries sustained in the accident. Therefore, the appellant is entitled for total compensation of Rs.2,00,000/-. It is further submitted that the monthly wages of the appellant is at Rs.3,000/- by the date of accident but the Commissioner has taken the wages of the appellant at Rs.2,000/- only. On this ground, the appellant is entitled for the compensation of Rs.2,00,000/- as claimed by him. 9. As seen from the evidence of A.W.2, Orthopedic Surgeon, the appellant sustained Mal-united fracture of lower end of radius only. He assessed the disability at 75%. Admittedly, the appellant sustained only fracture and injuries. A.W.2 Orthopedic Surgeon has not deposed the basis of the assessment of the disability at 75%. It seems, the disability of 75% stated by A.W.2 was not based on any medical evidence and the same is treated as excessive when compared to the actual injury sustained by the appellant. Moreover, it is not a case of amputation. The Commissioner has rightly taken the disability at 45% while assessing the loss of earning capacity. The appellant also failed to produce any documentary evidence to prove that he was drawing salary of Rs.4,000/- per month by the date of accident. As per the minimum wages under the W.C. Act, the Commissioner has rightly fixed the wages of the appellant at Rs.2,000/- per month. Therefore, the decisions relied upon by the learned counsel for the appellant are not applicable to the facts of the present case. 10. The Commissioner, who is a quasi judicial authority, is bound to apply the principles and factors laid down in the W.C. Act for the purpose of determining the compensation. The Commissioner has rightly assessed the percentage of disability basing on the evidence of A.W.2 and awarded compensation. 11. It is further submitted by the learned counsel for the appellant that the order passed by the Commissioner is silent about the payment of interest. As per the W.C. Act and as per the decisions of the Hon’ble Supreme Court, the appellant is entitled for interest at the rate of 12% per annum from the date of the accident. 12. In support of his contention, learned counsel for the appellant relied on a decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD. VS. MOHD. NASIR[3]. In the said case, the Commissioner awarded compensation with interest at the rate of 12 %per annum from the date of the accident till payment. 13. The Hon’ble Supreme Court in MOHD. NASIR’s case (3 supra) at paragraph 23 held as under: “The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4a. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is “falls due”. Significantly, legislature has not used the expression “from the date of accident.” Unless there is adjudication, the question of an amount falling due does not arise.” 14. Considering the provisions of Section 4a of the W.C. Act, the Hon’ble Supreme Court granted interest at the rate of 7% per annum from the date of filing of the application till the date of award and upheld the rate of interest awarded by the Tribunal i.e., at 12% per annum from the date of award till payment. 15. Learned Standing Counsel for the 2nd respondent contended that the appellant is entitled for interest only from the date of adjudication but not from the date of accident as there is no provision in the W.C. Act for payment of interest from the date of accident. Learned Standing Counsel for the 2nd respondent-Insurer further contended that as per the provisions of Section 4 of the W.C. Act, the interest become payable w.e.f. one month after the date of adjudication by the Commissioner. Therefore, the appellant is not entitled for interest from the date of accident. 16. In view of the decision of the Hon’ble Supreme Court in MOHD. NASIR’s case (3 supra), I am of the view that the appellant is entitled for interest at the rate of 7% per annum from the date of filing of the application till the date of order and thereafter, at the rate of 12% per annum from the date of the order till payment. 17. In the result, the civil miscellaneous appeal is allowed in part, in the circumstances, without costs. ___________________________ JUSTICE V.SURI APPA RAO 10th December, 2010. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO Civil Miscellaneous Appeal No.682 of 2003 10th December, 2010. [1] (2008) 8 SCC 518 [2] 2008 (3) ALD 650 (DB) [3] 2009 (4) Supreme 589