THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
C.M.A.No.1504 of 2008
JUDGMENT:-
Heard Smt S.A.V. Ratnam, learned counsel for the appellant
and Sri K. Rathanga Pani Reddy, learned counsel appearing for
the 1st respondent.
2. The injured claimant filed the W.C.No.46 of 2006 claiming compensation of Rs.3,00,000/- with interest of 12% per annum. The contention of the applicant-1st respondent is that due to accident, he received fractured injuries on his right leg, right knee, right and left forearm, injury on chest, injuries on right hand and invisible injuries on his body. Due to the said accident, the applicant was unable to perform his duties as a driver. As he became unfit to perform his duties, he filed the claim petition.
3. The appellant-opposite party no.2 filed counter affidavit denying the averments made in the claim petition in toto including the earning of the injured.
4. After considering both the oral and documentary evidence, the Commissioner has awarded an amount of Rs.4,22,584/- as compensation by taking the disability as 100%.
5. The only contention of the learned counsel for the appellant is that the Commissioner has taken the disability as 100%, where the Doctor has assessed the disability at 50%. 2
6. On a perusal of the record, it is found that the Commissioner, on physical verification of the applicant-driver, found that, he was unable to perform his duty as a driver, as prior to the accident. Basing on his disability and loss of earning capacity, the Commissioner has considered the disability as 100%, despite the Doctor certificate being issued as 50% disability.
7. Learned counsel for the appellant, to substantiate his claim, relied on the Judgment of the Hon'ble Supreme Court in, "National Insurance Company Limited Vs. Mubasir Ahmed and another1", wherein, it was held that without indicating any reason or basis, holding that there was 100% loss of earning capacity is not sustainable. For better understanding, para No.8 of the said Judgment is extracted which reads as follows:-
"Loss of earning capacity is, therefore, not a substitute for percentage of physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reasons or basis the High Court held that there was 100% loss of earning capacity.
Since, no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of the Commissioner, in view of the fact situation. Coming to the question of liability to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above".1
(2007) 2 Supreme Court Cases 349 3
8. In consonance with the afore stated Judgment of the Hon'ble Supreme Court, the Commissioner, on physical verification of the applicant driver, has considered the disability as 100% instead of 50%, as the applicant was unable to perform his duties as driver as prior to the accident and there was impact on his earning capacity.
9. In the present Appeal filed by the Insurance Company, it is agitated that the Commissioner for Workmen's Compensation has erroneously taken the disability sustained by the applicant as 100% when as per the schedule given under Workmen's Compensation Act, the disability for amputation of leg below knee is 50%. When the injured sustained 50% of disability as per the Doctor certificate also, the Commissioner has taken 100% disability and granted higher compensation.
10. When an applicant-claimant suffer a permanent disability as a result of the injuries the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability or his earning capacity.
11. For the said proposition, this Court relies on the Judgment of this Court in C.M.A.No.800 of 2007, dated 04.01.2021, wherein, the Doctor issued the Certificate of disability at 60% and the Commissioner for Workmen's Compensation had arrived at 100% disability and granted compensation. The learned Judge after considering the plethora of decisions, relied on the Judgment 4 in "Gona Siva Sankar Vs. K. Vara Prasad and Others2," in somewhat similar circumstances in para no.6 observed as under:-
"6. In the cases on hand, the medical practitioners have certified the percentages of disability to the respective appellants. However, they did not certify the extent of loss of earning capacity. Therefore, the Commissioner has taken upon himself the task of determining the same. In the process, he was mostly guided by his observation of the physical condition of the appellants as well as the observation made by the medical practitioners, as to the nature of difficulty for the appellants to discharge the functions. In is true that the percentage of loss of earning capacity fixed by the Commissioner was more than the percentage of disability. Neither law nor logic requires that the percentage of both the factors have to be the same. Depending on the nature of employment, an injury to a limb or organ may result in almost total loss of earning capacity, whereas in other cases, it may not have any impact at all. It is too difficult to decide these issues with mathematical precision. Unless it is urged before this Court that the exercise undertaken by the Commissioner was perverse or totally arbitrary, this Court cannot interfere with the same. Neither the appellants nor the respondents are able to convince this Court that the fixation of the loss of earning capacity by the Commissioner suffers from such irregularity".
12. In the said Judgment, the Commissioner had awarded compensation basing on the impact of said permanent disability on his earning capacity. Thus, the Commissioner has rightly taken the age of the applicant as 30 years and awarded compensation. Hence, I found no reason to interfere with the Order dated 08.09.2008 in W.C.No.46 of 2006, passed by the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour, Kadapa with regard to the assessment of compensation taking the disability as 100%. 2 2006 ACJ 2089 5
13. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 06-07-2022 EPS 6 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 141 C.M.A.No.1504 of 2008 Date: 06-07-2022 EPS