HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO. 877 of 1999 DATED: 31.12.2009 Between: The New India Assurance Co. Ltd. .. Appellant And Padma Sayulu and another .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.NO. 877 of 1999 JUDGMENT: This appeal is filed against the order, dated 03.10.1998 passed by the Commissioner for Workmen’s Compensation, Nizamabad in W.C.No.65 of 1997. 2. The New India Assurance Co. Ltd, Vijayawada which is the second respondent before the learned Court below is the appellant herein. 3. Padma Sayulu, the applicant- respondent No.1 filed an application before the Court below seeking compensation of Rs.2,00,000/- submitting inter alia, that he is the cleaner under the second respondent- owner of the lorry bearing No. AHH 3528 and at about 14.15 hours while he was on duty on the said vehicle as cleaner, it dashed a luxury bus bearing No. RJ 06 P 0611 near Cheri No.3 at Polod Sivar on Sillod to Ajantha Road and in the said accident, he sustained a fracture to the right leg, ankle, knee, thigh, injuries to the fingers of the left hand and the chest. Against the claim, the Court below granted compensation of Rs.2,55,360/- by accepting his version that his wages are Rs.2,000/- per month and is aged 22 years on the date of accident. 4. The said order has been challenged in this appeal by the appellant- insurance company. 5. Heard both sides. 6. It has been contended by the learned counsel appearing for the insurance company that the applicant did not place any documentary evidence regarding his employment with the second respondent- owner of the lorry and his income, but the learned Commissioner considered him to be an employee under the second respondent. It has been further contended that the doctor, who examined the applicant though mentioned about the physical permanent partial disability, did not assess his loss of earning capacity and as such, the learned Commissioner is not competent to award compensation as per the provisions of the Workmen’s Compensation Act, 1923. 7. Perusal of the order passed by the learned Commissioner indicates that there is evidence of the applicant before the Court below stating that he was working as cleaner in the lorry bearing No.AHH 3528 under the second respondent and that the wages paid to him were Rs.2,000/- per month and that he was aged 22 years on the date of accident. As per the evidence of PW.2, doctor also, the applicant was aged 22 years on the date of accident. The documents filed by the applicant, such as, Exs.A.1 and A2 – true copy of FIR and translation copy of the FIR respectively and Ex.A.7 true copy of the charge sheet and Ex.A.8 – translated copy of the same reveal that the applicant was involved in the accident while he was on duty as a cleaner of the lorry bearing No.AHH 3528. Absolutely no contra evidence is let in by the appellant – insurance company. Therefore, the learned Commissioner did not commit any mistake in holding that the accident occurred in the course of the employment with the second respondent and also that the age of the applicant was 22 years on the date of accident. However, in the absence of any documentary proof, the learned Commissioner ought not to have considered the wages of the applicant at Rs.2,000/- per month. In this case, for the purpose of computing compensation and considering the fact that the accident took place in the year 1996, the wages of the applicant can be fixed at Rs.1,000/- per month which amount is reasonable. 8. PW.2 – Civil Surgeon in Government Hospital, Nizamabad in his evidence before the learned Commissioner, apart from describing the injuries stated above deposed that the applicant sustained 95% of permanent partial disability and also stated that the applicant cannot do hard work in future with right hand and he is unable to stand for a long time. 9. However, the learned counsel appearing for the appellant – insurance company relying on NEW INDIA ASSURANCE COMPANY LTD., HYDERABAD v. SAMMAYYA @ M.SHANKAR (WORKMAN) AND ANOTHER[1] and RAJESH KUMAR ALIAS RAJU v YUDHVIR SINGH AND ANOTHER[2] contended that in the absence of doctor, assessing the loss of earning capacity apart from the physical partial and permanent disability, this Court cannot award the compensation and the matter has to be remitted back to the Commissioner for fresh disposal with a direction to pass an order in conformity with the provisions of the Act, 1923. The above two judgments relied upon by the learned counsel appearing for the appellant – insurance company are applicable only when the doctor assessed the permanent partial disability without assessing the loss of earning capacity and the Commissioner considers the disability as total. There is no legal impediment to grant compensation, which is proportionate to the percentage of partial permanent disability assessed by the doctor, who examined the injured-workman. Further the Act, 1923 being a beneficent legislation in so far as it relates to the payment of compensation to the workmen is concerned it causes much hardship to the injured workman (respondent no.1), if the matter is remitted back to the Commissioner after a lapse of 13 years and therefore, a duty is cast upon this Court to arrive at a reasonable compensation, having regard to the provisions of the Act, 1923. In ORIENTAL INSURANCE COMPANY LTD. V MOHD.NASIR AND ANOTHER[3] the Apex Court upheld the awards passed by the Commissioner under the Workmen’s Compensation Act, 1923 to the extent of granting compensation proportionate to the physical disability assessed by the doctor, who examined the injured- workman. Therefore, omission on the part of the doctor, who examined the injured-workman regarding the assessment relating to the loss of earning capacity does not preclude the Commissioner to award compensation basing on the assessment of physical disability made by the doctor couple with the other evidence. 10. As per Section 4(c) of the Act, 1923, the compensation shall be calculated as follows: 60% of the monthly wage of the injured workman x relevant factor x percentage of disability i.e. Rs.600/- x 221.37 x 95% = 1,26,181/-. The first respondent – applicant is entitled for compensation of Rs.1,26,181/- which shall bear interest at the rate of 6% per annum from the date of application till the date of realization. The appellant – insurance company is directed to deposit the amount together with interest accrued thereon within a month from the date of receipt of the copy of this judgment. 11. Accordingly, the appeal is allowed in part. There shall be no order as to costs. _______________ R. KANTHA RAO, J Date: 31.12.2009 kvrm [1] 1995(3) ALT 470 [2] (2008)7 Supreme Court Cases 305 [3] 2009 ACJ 2742