RAYAPATI VENKATESWARA RAO Vs. MANTAI SAMBASIVA RAO

JUDGEMENT

(1.) The appellant-applicant filed this appeal being aggrieved by the order dated 20/02/1996 passed by the Commissioner for Workmen's Compensation, I Circle, Guntur in W.C. No. 8/1995 which was filed by the applicant claiming an amount of Rs. 1,15,000.00 towards compensation for the injuries sustained by him in a motor vehicle accident occurred on 18/12/1994 during course of his employment. The brief facts of the case are as follows: The applicant was working as cleaner on the lorry AAE 7999 owned by the Opposite Party-I, that on 18/12/1994 while the applicant during course of his employment was proceeding in the lorry AAE 7999, the driver of the vehicle drove at high speed in a rash and negligent manner and without taking proper care and as a result the brakes of the lorry failed and the lorry turned turtle and the applicant received grievous injuries to his right leg and operations were conducted on his right leg and steel rods were inserted and he underwent treatment as an inpatient for 15 days and he became disabled permanently and he lost his earning capacity. Prior to his accident he was earning Rs. 1,000.00 p.m., as salary and Rs. 300.00 p.m., as batta. Thus the applicant filed the O.P. claiming an amount of Rs. 1,15,000.00 towards compensation. The Tribunal on appreciation of both oral and documentary evidence adduced came to the conclusion that the applicant sustained 20 to 25% physical disability and he assessed the loss of earning capacity of the applicant at 70% due to the deformity and also fixed the monthly wages at Rs. 983/- and thus awarded an amount of Rs. 78,842.00 towards compensation. Questioning the same, the applicant filed this appeal, seeking enhancement.

(2.) Learned counsel for the appellant-applicant contended that the learned Commissioner erred in awarding the total compensation and he read-out the evidence of A.W. 1 the workman as well as A.W.2 the Orthopaedic Surgeon who treated the applicant. He contended that because of the accident the applicant has suffered major fracture to his right tibia and the Doctor A.W. 2 operated him. It is the evidence of A.W. 2 that the appellant suffered 20 to 25% physical disability and because of the restriction of ankle movement, the applicant is unable to discharge the duties of a cleaner and it is a compound fracture and the learned Commissioner also examined the applicant in the open Court and opined that the applicant sustained compound fracture to his right leg in the accident and operation was conducted and steel rods were inserted and there is a malunion of fracture and slight deformity and hence assessed the loss of earning capacity at 70%. Learned counsel for the appellant further contended that when once the Commissioner found that the appellant suffered injury and was unable to perform the duties which he used to perform on the date of the accident, it amounts to 100% loss of earning capacity and accordingly he should be paid full compensation and from the evidence of A.W.2 it is clear that the applicant cannot perform the duties of a cleaner and, he has to walk with a stick and hence the applicant is entitled for 100% compensation. In support of his contentions he placed reliance on a decision of the Supreme Court reported in Pratap Narain Singh Deo v. Shrinivas AIR 1976 SC 222: 1976 (1) SCC 289 : 1976-I-LLJ-235 and also relied on decisions of this Court reported in National Insurance Co. Ltd, v. Mohd. Saleem Khan and another, 1992-II-LLJ-377 (AP), Janatha Modern Rice Mills v. G. Satyanarayana 1996-III-LLJ (Suppl)-923 (AP) and New India Assurance Co., Ltd., v. K. Appa Rao 1995 (1) ALT 499. Further, he placed reliance on another Judgment of a learned single Judge of thisCourtinC.M.A. No. 14471994, dated July 23, 1999.

(3.) On the other hand it is contended by the learned counsel for the respondents. Insurance Company that there is no proper assessment by the doctor about the physical deformity sustained by the applicant and he can do any other job and there is no reason to interfere with the compensation awarded by the Commissioner.