The Oriental Insurance Company ... vs Mohd. Ali And Another
2023 Latest Caselaw 100 Tel

             THE HON'BLE SRI JUSTICE M.LAXMAN

          CIVIL MISCELLANEOUS APPEAL No.18 of 2008

JUDGMENT:

1. The present Civil Miscellaneous Appeal is directed against

Order dated 21.07.2007 in W.C.No.114 of 2005 on the file of the

learned Commissioner for Workmen's Compensation and

Assistant Commissioner of Labour, at Hyderabad, challenging the

fixation of loss of earning capacity of the applicant at 60% while

the applicant suffered 40% physical disability.

2. Heard learned counsel for the appellant.

3. A perusal of the record shows that except challenging the

fixation of earning capacity of the applicant at 60%, there is no

serious challenge pertaining to other findings. The evidence of

AW2, who is doctor shows that the applicant suffered 40%

physical disability as per Ex A5-disability certificate. As per the

doctor, the disability was on account of fracture of both bones of

right forearm and crush injury to right hand. This means that the

limb disability of right hand was the criterian for determination of

physical disability. The injured in the present case was the driver.

When the driver is not able to discharge his duties on account of

40% physical disability to one of the arms, it definitely has an

impact on the total functional disability of the body. The fixation

of earning capacity has to be determined with reference to the

nature of profession and the impact of physical disability of

particular limb and its impact on functional disability of the body.

4. In the present case, the nature of profession of applicant,

impact of the accident on the physical disability on the body and

the effect of accident on the earning capacity of the applicant was

taken into consideration by the Commissioner while determining

the loss of earning capacity as 60%. Hence, I do not find any

merit in this appeal and the same is liable to be dismissed.

5. Accordingly, the Civil Miscellaneous Appeal is dismissed. No

costs.

Miscellaneous Petitions, pending if any, shall stand closed.

______________________ JUSTICE M.LAXMAN 05.01.2023 ESP

THE HON'BLE SRI JUSTICE M.LAXMAN

C.M.A.No.18 of 2008

Dated: 05.01.2023

ESP