HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.4484 OF 2003 Dated 17-12-2014 Between:
Veladi Venkata Subba Rao.
...Appellant.
And:
P.Rama Rao and others.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.4484 OF 2003 JUDGMENT:
This is an appeal against the order dated 15-9-
2003 in W.C.No.149 of 2002 of Assistant Commissioner of Labour-I, Guntur.
Brief facts leading to this appeal are as follows: Appellant herein filed an application before Assistant Commissioner of Labour-I, Guntur contending that he was employed as driver under first respondent herein on lorry bearing No.AP 10 3679 which is insured with second respondent herein and that he sustained injuries on 28-12-1994 during course of his employment. He further contended that he was 45 years on the date of accident and was getting Rs.1500/- per month as salary and entitled for compensation of Rs.84,720/-. Lower authority examined two witnesses and marked six documents on behalf of appellant and no witness is examined and no documents are marked on behalf of respondents.
On a consideration of oral and documentary evidence, the lower authority granted compensation of Rs.23,010/- by taking salary of Rs.1,215/- + VDA of Rs.520/- and percentage of disability at 30%.
Aggrieved by the quantum of compensation, claimant preferred the present appeal.
Heard arguments.
Advocate for appellant submitted that lower authority failed to appreciate the evidence of Medical Officer who clearly deposed that appellant cannot perform duties of a driver in view of the injury and instead of taking loss of earning capacity at 100%, lower authority took loss of earning capacity as 30% only and the same is not correct. He also submitted that the lower authority fixed the age of appellant at 50 though he specifically pleaded that he was only 45 years and by considering these two aspects, balance claim of compensation of Rs.61,756/- has to be granted. In support of his argument, he relied on a decision of this court in N.SREERAMULU @ SREE RAMA MURTHY v. B.LAKSHMI NARAYANA AND
[1]
ANOTHER ( ).
Other side advocate submitted that lower authority rightly fixed the loss of earning capacity at 30% basing on disability assessed by Medical Officer and there are no grounds to interfere with the findings of the lower authority.
Now the point that would arise for my consideration in this appeal is whether the order impugned is legal, correct and proper?
POINT:
Admittedly, appellant is an employee under first respondent herein and working as driver on the lorry bearing No.AP 10 3679 as on the date of accident. It is also not in dispute that appellant received injuries in the accident that took place on 28-12-1994 while proceeding on NH 5 and the same was during course of employment. Appellant is examined as A.W.1 and he deposed that on 28-12-1994, while he was coming from Nellore with iron load and proceeding to Vijayawada as driver on lorry bearing No.AP 10T 3679 and while he was reaching Mangalagiri bye pass road, lorry coming in opposite direction dashed his lorry, due to which, he received multiple injuries all over the body and he was admitted in Government Hospital, Mangalagiri and after giving first aid, he was shifted to Vijayawada and Mangalagiri police registered case and Ex.A.1 is FIR, Ex.A.2 is wound certificate.
Medical Officer is examined as A.W.2 who deposed that appellant was admitted in Hospital on 28-12-1994 and was in the Hospital as impatient upto 13-2-1995. He deposed that appellant sustained injuries and the injury to right hip joint is a serious injury and due to that injury, he cannot sit and squat and that the disability is permanent. He also deposed that it is difficult for the appellant to do driving work because of injury to right hip joint. In the cross-examination, he stated that there is no possibility for rectification of limb and he can do work only by sitting on a stool.
It is clear from the evidence of A.W.2 that an operation was conducted on 4-1-1995 to the appellant for his injuries and his disability is 30%.
In the decision referred to supra (first cited) this court, after examining decisions of Supreme Court and this court in respect of cases concerned with Workmen Compensation Act formulated 12 points and observed that the loss of earning capacity is different from percentage of disability. While assessing loss of earning capacity, court has examine whether the claimant can carry on his previous profession in view of disability caused to him and if he can carry on his profession, then the loss of earning capacity has to be calculated on the basis of percentage of disability and if he is not fit to perform the profession, he was doing prior to the accident, then the loss of earning capacity has to be treated as 100%.
Here the appellant is a driver and as per the evidence of Medical Officer, due to injury to right hip joint, he cannot sit and squat. Medical Officer also deposed that claimant cannot drive vehicle in view of the injury to right hip joint. When the appellant cannot sit and squat, he cannot perform duties of a driver which is rightly stated by the Medical Officer. So, as per observations of this court in the above decision, the percentage for loss of earning capacity in this case has to be taken as 100% but the lower authority calculated compensation only on the basis of disability assessed by the Medical Officer which is not correct.
The other objection of advocate for appellant is that lower authority has taken age of the appellant as 50 years though the appellant was 45 years as on the date of accident but this objection cannot be sustained because there is no positive evidence to show that he was 45 years as on the date of accident.
As seen from the evidence of Medical Officer, wound certificate and other documents, the age of the claimant is recorded as 50 years and considering the same, the lower authority fixed compensation.
Therefore, the contention of the appellant with regard to age cannot be accepted.
Advocate for appellant submitted that if compensation is calculated taking the loss of earning capacity at 100% on the salary as taken by Assistant Commissioner of Labour, claimant is entitled for Rs.78,000/- with interest. The Assistant Commissioner of Labour granted Rs.23,010/- as compensation taking the loss of earning capacity at 30%, now by taking loss of earning capacity at 100%, it would come to Rs.78,000/-. So, the difference is Rs.54,990/- and the appellant is entitled for this difference amount with interest at 9% from the date of appeal, till the date of deposit.
Appeal is allowed accordingly. The respondents shall deposit the difference amount with interest as indicated above within 30 days from the date of receipt of a copy of this order.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 17-12-2014.
Dvs HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL MISCELLANEOUS APPEAL No.4484 OF 2003 Dated 17-12-2014 Dvs
[1] 2013 (5) ALD 249