THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No.388 of 2005 Dated: 19.09.2014 Between:
The New India Assurance Company Limited, Rep. by its Senior Divisional Manager, Legal Cell, IV Floor, Al-Kareem Trade Centre, Ranigunj, Secunderabad.
.. Appellant and Sk. Saleem.
.. Respondent Counsel for the appellant: Mr. C. Prakash Reddy Counsel for Respondent No.1: None appeared The Court made the following:
JUDGMENT:
This civil miscellaneous appeal arises out of order dated 20.11.2004 in W.C.No.46 of 2004 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III at Hyderabad (for short ‘the Commissioner’).
I have heard Mr. C. Prakash Reddy, learned counsel for the appellant. None appears for respondent No.1.
Respondent No.1, a cleaner in a lorry, suffered injuries in an accident involving the lorry, while being in course of employment. He has approached the Commissioner for award of compensation of Rs.5.00 lakhs for the injuries received by him. On analysis of the oral and documentary evidence, the Commissioner has awarded Rs.2,86,997/- together with stamp fee of Rs.574/- and advocate’s fee of Rs.500/-, totaling Rs.2,88,071/-. While awarding the said compensation, the Commissioner has solely relied upon the evidence of A.W.2, the Civil Surgeon, Specialist, Orthopedics, and Ex.A9- wound certificate issued by him. As can be seen from the order of the Commissioner, the doctor has assessed the disability at 55% on Mc. Bride Scale. The doctor has also opined that the applicant cannot perform his duties as cleaner. The Commissioner, however, computed the compensation, taking 100% as loss of earning capacity.
As rightly pointed out by Mr. C. Prakash Reddy, learned counsel for the appellant, the injuries suffered by respondent No.1 do not fall in Part II of Schedule I of the Employee’s Compensation Act, 1923 (for short ‘the Act’). Under Section 4(1)(c)(ii) of the Act, where permanent partial disablement results from an injury and in case such injury is not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury, shall be paid as compensation. Under Section 4(1)(b) of the Act, in case of permanent total disablement resulting from the injury, an amount equal to 60% of the monthly wages of the injured multiplied by the relevant factor or Rs.1,40,000/-, whichever is more, shall be paid as compensation.
In the present case, the permanent partial disability is assessed at 55%. However, while the doctor stated that respondent No.1 cannot perform his duties as cleaner, he has not opined that respondent No.1 is completely unfit to do any physical activity. The Commissioner has taken 60% of the wages of respondent No.1, which is prescribed only for permanent total disablement. In my opinion, the injury resulting in permanent partial disablement cannot be equated with the permanent total disablement. Even if the injury sustained by respondent No.1 disabled him from discharging the duties as cleaner; nevertheless he can attend to works of lighter physical involvement. The Commissioner has lost sight of this aspect. Having regard to the nature of the injuries suffered by respondent No.1 and the facts and circumstances of the case, it would be appropriate if 40% of the wages is considered for awarding compensation.
On such calculation, the compensation comes to Rs.1,91,331.08 ps. (Rs.2258.50 x 40/100 x 211.79 = Rs.1,91,331.08 ps.) The appeal is accordingly partly allowed. It is represented that the appellant has deposited the entire compensation amount, out of which 50% was permitted to be withdrawn by respondent No.1. Respondent No.1 is entitled to withdraw the balance amount out of Rs.1,91,331.08 ps. The appellant is entitled to take return of the rest of the amount deposited by it before the Commissioner along with proportionate interest accrued if any thereon.
As a sequel to the allowing of the appeal, interim order dated 28.04.2005 stands vacated and C.M.P.No.911 of 2005 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 19th September, 2014 IBL