THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM
C.M.A.No. 374 OF 2012
J U D G M E N T:
This Appeal is directed against the Order dated 16.12.2011 in W.C.No. 108 of 2010 wherein the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-II, Hyderabad awarded total compensation of 5,29,311/- to the respondent - applicant with interest @ 7.5% per annum from the date of application till the date of order and further interest at 12% from the date of expiry of the period of one month from the date of order passed till the date of realisation.
The appellant is the Insurance Company. The facts are not in dispute. Loss of earning capacity which as determined as 100% is only disputed.
Learned counsel for the appellant Sri A. Ramakrishna Reddy contends that in view of the evidence of A.W.2, who assessed the physical disability at 45% and the fact that the applicant had renewed his driving licence thereafter and carrying on the vocation as driver, granting of loss of earning capacity at 100% is unsustainable.
This contention is vehemently opposed by the learned counsel for the respondent - applicant Sri A. Madhava Reddy. He refers to the order of this Court in C.M.A.No. 141 of 2015 as well as the judgment of the Division Bench in New India Assurance Co. Ltd. v. Abdul Khadar Jilani1 and contends that taking / renewal of licence subsequently is no proof with respect to the employability or employment of a particular individual. He would 1 2007(4) ALT 607 (DB) 2 further assert that at any rate, the same being not forming part of the orders of the Competent Authority, it cannot be taken into account and he prays therefore, for dismissal of the Appeal.
Having regard to the respective submissions, the fact remains that the applicant was the driver as per the evidence of A.W.2, who was the Orthopaedic Surgeon in King Koti Government Hospital, King Koti, Hyderabad and as per the record given by Sri Sanjeevani Hospital, Dilsukhnagar, he sustained "grossly comminuted fracture distal ends of both bones right leg, which was not united, infected non-union with stiffness of ankle 50% of movements reduced, with half of shortening, resulting in painful limp and deformity". He had also deposed before the Competent Authority that the applicant would have problems in sitting, squatting and walking.
Though the evidence discloses that the applicant would not be able to drive heavy goods vehicle, it cannot be said that he would not be employable as the driver at all. In that view of the matter, determination of loss of earning capacity at 100% appears to be on higher side.
Considering the fact that the age of the applicant is only 34 years at the time of accident and also considering the nature of injuries and the fact that he continued to renew the driving licence since 1996 which indicates that he is still capable of being engaged as a driver, loss of earning capacity is restricted to 70%. When the compensation determined at Rs.4,83,984/- is restricted to 70%, it comes to Rs.3,38,788/-. Further, it may be noted that the Authority had granted interest at 7.5% from the date of Application till the date of order and further interest at 12% per annum from 3 the date of expiry of period of one month from the date of the order passed by the Commissioner till the date of realisation. In terms of the judgment of the Supreme Court in Oriental Insurance Company v. Siby George2, the applicant is entitled to interest at 12% per annum one month from the date of accident i.e. 21.12.2009 to 23.12.2012 the date on which the amount was admittedly deposited.
The Appeal is accordingly, allowed in part. It is made clear that the amount already paid to the applicant shall be given credit to in the process of settlement of the amount. No costs.
Miscellaneous Petitions, if any stand closed.
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CHALLA KODANDA RAM, J 10th February 2021 ksld 2 (2012) 12 SCC 540 4 5