HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A. No :201 of 2005 JUDGMENT: This C.M.A. is filed by the insurance company against the order of the Commissioner for Workmens’ Compensation and Assistant Commissioner of Labour, Hyderabad in W.C. Case no.128 of 2003, dated 25.9.2004 The facts in brief are that the 1st respondent-claimant was working as a driver under the 2nd respondent. While so, on 3.6.2003, in the morning hours, while he was driving the auto bearing No. AP 13 N 4243 from Gunrock to Nallagutta, Secunderabad and when it reached Gunrock Enclave, a car came from behind with high speed and to avid collision, he turned his auto aside, due to which, the auto turned turtle. As a result, he sustained head injury, a fracture to his right mallaus of ankle, besides sustaining some other multiple injuries. He was immediately shifted to Gandhi Hospital, Secunderabad. As the claimant sustained injuries during the course of employment under the 2nd respondent, he filed W.C. No. 128 of 2003 before the Commissioner for Workmen’s Compensation and Asst. Commissioner of Labour, Hyderabad-I, claiming compensation of Rs.2,50,000/- for the injuries caused to him in the accident which occurred on 3.6.2003. Before the Commissioner, the 2nd respondent was set ex- parte. The insurance company filed counter while denying the material averments. It disputed that the 1st respondent-claimant was employed with the 2nd respondent. It also disputed the age and income of the 1st respondent. It further pleaded that the compensation claimed was excessive. Hence, it prayed to dismiss the W.C. Based on the above pleadings the following issues were settled for trial. 1. Whether the applicant, K. ILAIAH received personal injuries in an accident on 03.06.2003 that arose out of and during the course of his employment under OP1 as Auto Trolley Driver and became partially disabled and lost some percentage of his earning capacity ? 2. If so , what is the loss of percentage of his loss of earning capacity ? 3. To what quantum of compensation the applicant is entitled for and who is liable to pay ? Before the Commissioner, on behalf of the 1st respondent-claimant, the claimant got himself examined as AW1, besides examining the doctor, who treated him as A.W.2. Exs. A1 to A6 were marked on behalf of the claimant. However, on behalf of the insurance company, no oral or documentary evidence was let in. On a perusal of the oral and documentary evidence on record, the Commissioner awarded a sum of Rs. 1,64,695/- as compensation jointly and severally payable by the appellant and the 2nd respondent. Challenging the said order, the insurance company filed the present appeal. Learned counsel for the appellant would contend that the 1st respondent-claimant is no other than the son of the 2nd respondent and there is no relationship of employer and employee between them and suppressing the said fact, the 1st respondent filed the aforesaid W.C. case claiming compensation and therefore the claim of the 1st respondent cannot be entertained. In so far as the said contention that the claimant is no other than the son of the 2nd respondent is concerned, no evidence was adduced by the appellant either before the Commissioner or before this Court to show that they are running a family concern by living together. Further there is no prohibition for a father for employing his son. Hence, the said contention is untenable. In so far as assessment of compensation on account of loss of earning is concerned, the 1st respondent filed Exs. A1 to A6 to prove that he sustained disability to an extent of 35% by virtue of the injuries sustained by him in the accident in question. He also examined the doctor, AW.2 to show that he sustained permanent disability to an extent of 35%. However, to disprove the same, the appellant examined the Assistant Civil Surgeon of Gandhi Hospital as O.P.W.1, who stated in his evidence that the 1st respondent had sustained disability to an extent of 10 to 15%. However, he did not dispute that the respondent would face some difficulty for driving the auto. However, in the instant case, the Commissioner on a perusal of the opinions of both the doctors, found that there is restricted movement in the ankle of the 1st respondent, besides swelling on his right foot, due to which, the 1st respondent was unable to sit and squat. Since the 1st respondent has to utilise his right leg for applying brakes and accelerator being LMV driver and by virtue of the disability sustained by him, he lost his earning capacity by 50%. However there is no basis for the Commissioner to assess the loss of earnings at 50%. Even according to the doctor, who was examined by the 1st respondent to prove the disability sustained by him, had deposed in his evidence that the 1st respondent had sustained only 35% disability and when that being the case, the Commissioner was not justified in assessing the loss of earnings at 50%. Even the evidence of the other doctor, who was examined on behalf of the appellant insurance company to show that the 1st respondent sustained disability only to the extent of 10 to 15% is concerned, his evidence cannot be relied upon. However, in view of the categorical evidence of both the doctors that there was restriction in the movement of the right ankle of the 1st respondent. Hence, I am of the opinion that the 1st respondent would have sustained disability to an extent of 30%. Therefore, I deem it appropriate to hold that the 1st respondent sustained loss of earnings to an extent of 30% instead of 50% as observed by the Commissioner in the impugned order. The 1st respondent was aged about 37 years as on the date of the accident and was earning about Rs.2,834/- per month. Therefore, while taking the factor of 192.14 as per Schedule IV of the Act, the loss of earnings of the 1st respondent is determined as under: (192.14 x 2834 x 60 x 30 ) = Rs.98,014/- 100 100 101 In addition to this, the 1st respondent is entitled to an amount of Rs.338/- towards costs of stamps and Rs.1,000/- towards advocate fee as awarded by the Commissioner. In all, the 1st respondent is entitled to an amount of Rs. 99,352/- as compensation instead of Rs. 1,64,695/- as awarded by the Commissioner. The appeal is accordingly allowed in part. No costs. ____________________ GHULAM MOHAMMED,J DATE: 27th January, 2011 pnb