IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD FRIDAY THE TENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CMA.NO.2796 OF 2003. Between: Gandam Devadanam … Appellant V/s. D. Bhaskara Rao Manikanta Stone Crusher, Perecherla village, Guntur district & Anr. … Respondents (CMA against R-1 dismissed for default vide court order dated 28-1-2010) Counsel for the Appellant : Sri B. Parameswara Rao Counsel for the Respondents : The Court made the following : Judgment follows 2nd page THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CMA.NO. 2796 OF 2003 JUDGMENT : The petitioner in WC.No.112 of 2002 filed this Civil Miscellaneous Appeal seeking enhancement of compensation awarded by the Court of Commissioner for Workmen’s Compensation, Labour Court-I, Guntur, by his order dated 22- 5-2003 awarding Rs.1,29,194-00 against the total claim of Rs.2,00,000/-. 2. The averments of the application in brief are that the appellant-applicant was working as “driver”, on a tipper lorry bearing Regdn.No. AP-12-T 2466 of Opposite Party No.1 and the vehicle was insured with Opposite Party No.2. On 28-5-2002 the applicant received personal injuries in the accident involving the vehicle during the course of his employment. On the fateful day, he was going to Guntur from Cherukupalli village and when the vehicle reached near Arumbaka village, the driver of the vehicle failed to control the vehicle, as a result, it dashed against some she-buffaloes and then against a tree on the road margin. The applicant suffered left leg fracture in the accident. Cherukupalli Police registered a case in Cr.No.24 of 2002. Therefore, he filed WC.No.112 of 2002 claiming compensation of Rs.2 lakhs against Opposite Parties 1 and 2. 3. Opposite Party No.2 Insurance Company filed a counter denying the averments of the application including the vehicle being involved with it, factum of the accident, injuries received by the applicant as well as the age, avocation and earning capacity. It is stated that Opposite Party No.1 failed to inform about the accident. 4. The Commissioner for Wokmen’s Compensation has framed relevant issues as to whether the applicant was a workman having received injuries during and in the course of his employment and as to his entitlement to claim compensation and as to the liability of the respondents to pay the same. 5. The applicant got himself examined as AW-1 and got marked Exs.A-1 to A-7 besides examining the doctor, who treated him as AW-2 and the cleaner of the vehicle was examined as AW-3. However, no evidence was adduced on behalf of the Opposite Party No.2 Insurance Company. 6. The Commissioner for Workmen’s Compensation considered the evidence of AW-1 applicant, who has reiterated the averments of his application that he was working as driver of the accident vehicle lorry under opposite party No.1 and receiving a monthly salary of Rs.3000/- per month and that on the relevant day due to rash and negligent driving on the party of the driver of the accident lorry, he suffered injuries during the course of his employment. The evidence of AW-3, who was working as a cleaner on the accident lorry, corroborated the evidence of AW-1 in material particulars and the same goes to prove that the applicant was working as driver on the lorry bearing Regdn.No. AP-12T-2466 of opposite party No.1 and that the accident occurred on 28-5-2002 while himself and the applicant were on duty on that day and the applicant suffered injuries in the accident and he too suffered injuries. Therefore, the evidence of AW-1 and AW-2 goes to prove that the applicant was working as driver under opposite party No.1 on the accident lorry and the accident occurred wherein he suffered the injuries during the course of his employment. AW-2, who is the doctor, treated the applicant AW-1 soonafter the accident. He also issued Ex.A6- medical certificate. He justifies that the applicant had suffered fixed flexion deformity on left knee and left foot. He was working with limping with the help of a stick, as he cannot walk on his own. He suffered permanent disability of 40% and he needs surgery for correction of deformity. The evidence of AW-2 corroborates with the evidence of AW-1 and AW-3 and the same is in agreement with Ex.A6 medical certificate. Therefore, it can safely be inferred that the appellant-applicant had suffered injuries in the accident, as spoken to by Aws-1 to 3 coupled with Ex.A6 medical certificate. 7. As per the contention of the learned counsel for the appellant the Assistant Commissioner of Labour-I, Guntur is not justified in giving vent to his personal information as to the percentage of the disability suffered by the appellant-applicant. The oral and documentary evidence on record show that the appellant- applicant had suffered permanent partial disability of 40% due to which he was compelled to walk with the help of a stick that too by limping. AW-2, the medical witness, has even testified that the appellant needs surgery for correction of the deformity. Therefore, it is contended that the Assistant Commissioner of Labour has erred in scaling down the disability from 40% to 30%. 8. Per Contra, the factum of accident and the nature of injuries suffered by the appellant are not denied. The only question is about the quantum of compensation amount. The learned standing counsel for the respondent-Insurance Company submits that the impugned award does not suffer from any infirmity in reducing the disability by the appellant from 40% to 30% based on the personal physical examination of the appellant in the open court, based on which he has decided the loss of his earning capacity, and thereby, awarded the compensation of Rs.1,29,194-00 as such, the impugned award is not liable to be interfered with by this Court. 9. After hearing both sides what transpired is that the difference in the disability as fixed by AW-2 medical witness at 40% and the same has been scaled down by the Assistant Commissioner of Labour to 30% i.e., 10% only which according to the learned counsel for the appellant, dearly affects him since the total compensation stands to be reduced to that extent, whereas it appears to be marginal for the other side. In any case, this Court is of the view that the observation of the Assistant Commissioner of Labour for reducing the percentage of disability from 40% to 30% appears to be unreasonable, as such, the appellant is entitled to compensation to the extent of the disability said to have been suffered by him as per the evidence of AW-2 medical witness. In this context, both the learned counsel agreed for calculating the compensation, if 10% is added it works out to Rs.42,000/-. Therefore, the same is liable to be added to the amount of compensation of Rs.1,29,194/- as awarded by the Asst.Commissioner of Labour, Guntur. 10. In the above facts and circumstances, the Civil Miscellaneous Appeal is disposed of and the appellant is entitled to enhanced compensation of Rs.1,71,194/- (i.e., Rs.1,29,194-00 + Rs.42,000). The respondent No.2 Insurance Company is directed to deposit the total compensation of Rs.1,71,194/- after giving credit to the amount if already deposited within a period of one month from today, failing which the above amount of compensation shall carry interest @ 7% per annum till its realization. No costs. _________________________ JUSTICE B.N. RAO NALLA 10-12-2010 I s L THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CMA.No. 2796 of 2003 10-12-2010 I s L