KATHWAL HUSSAIN PEERA Vs. D RAMALINGESWARA REDDY

JUDGEMENT

(1.) APPELLANT , while working as the driver of the lorry belonging to the 1st respondent, which was insured with the 2nd respondent, suffered injuries in an accident that occurred on 22. 06. 1996 at about 1. 30 p. m. So he filed an application under the Workmen's Compensation Act, 1923 (for short 'the Act') seeking compensation of Rs. 2,50,000.00 from the respondents. First respondent chose to remain ex parte. Second respondent filed its counter contesting the claim. In support of his case, the appellant, besides examining himself as P. W. 1, examined the doctor who treated him as P. W. 2 and marked Exs. A. 1 to A. 7. The Commissioner, having held that the appellant sustained injuries out of and during the course of his employment with the 1st respondent and suffered a permanent disability resulting in loss of earning capacity of 70%, awarded Rs. 1,69,733.00 as compensation to the appellant against the respondents. Dissatisfied with the compensation awarded to him, the injured workman preferred this appeal.

(2.) THE contention of the learned counsel for the appellant is that in view of the evidence of P. W. 2 the doctor that the disability of the appellant as driver is 100%, the Commissioner was in error in fixing the loss in earning capacity of the appellant at 70% only and ought to have fixed the disability of the appellant at 100% by relying on National Insurance Company Ltd v. Rajesh Helmandge and another, Janatha Modern Rice Mills v. G. Satyanarayana, Pratap Narain Singh Deo v. Shrinivas Sabata and another, Pamarthi Subba Rao v. H. Rama Rao and another, Shivalinga Shivanagowda Patil v. Erappa Basappa Bhavihala, The National Insurance Co. Ltd v. Mohd. Saleem Khan and another, New India Assurance Company Ltd. , v. Kotam Appa Rao and another, Lingampalli Rajam (died) by L. Rs. v. Colliery Manager, Morgan's Pit Singareni Collieries Co. , Ltd. , Rayapati Venkateswara Rao v. Mantai Sambasiva Rao and another, G. Anjaneyulu v. Alla Seshi Redy and another, Gorla Obula Reddy v. K. Rajgopal Reddy and another and Executive Engineer, Public Works Department and another v. Bhimrao Manikrao Unhale. The contention of the learned counsel for the 2nd respondent is that inasmuch as P. W. 2 stated that the disability of the appellant works out up to 40% only, the Tribunal, in fact was in error in assessing the loss in the earning capacity of the appellant at 70% and the appellant, instead of feeling happy with the compensation awarded on the basis that he has 70% permanent disability when the evidence of P. W. 2 the doctor shows that he has only 40% permanent disability filed this appeal avariciously to claim compensation on the basis that he has 100% permanent disability and contended that inasmuch as the injury suffered by the appellant is a non- schedule injury, the evidence of P. W. 2 the doctor is relevant for assessing the loss in the earning capacity, and contended that inasmuch as the decisions relied on by the learned counsel for the appellant relate to schedule injuries appellant is not entitled to seek compensation on the basis that he has 100% disability and relied on New India Assurance Company Limited v. Abdul Khader Jiiani in support of the said contention.

(3.) JANATHA Modern Rice Mills case (2 supra) relates to amputation of the left hand, Pratap Narain Singh Deo case (3 supra) relates to amputation of left hand above elbow, Pamarthi Subba Rao case (4 supra) relates to amputation up to knee level of the right leg, Gorla Obula Reddy case (11 supra) relates to amputation of right fore arm, Bhimrao Manikrao Unhale case (12 supra) also relates to amputation of left arm above elbow joint. As this is not a case relating to amputation the above decisions are of no help in deciding this case.