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2000 DIGILAW 69 (AP)

Pasupuleti Ramarao v. Pothinaboina Durgarao

2000-02-04

V.ESWARAIAH

body2000
ESWARAIAH, J. ( 1 ) THE applicant filed this civil miscellaneous appeal questioning the order of the Commissioner for Workmen s compensation, Guntur, in W. C. No. 247 of 1992 dated 2. 9. 1993 in so far as it went against the contention of the appellant in not agreeing to the loss of earning capacity as 100 per cent. The respondent No. 1 is the owner of the offending lorry. The respondent No. 2 is the insurance company. ( 2 ) THE brief facts of the case are that the appellant was appointed as a cleaner by the respondent No. 1 on his lorry bearing no. ADB 9176 and he received personal injuries on 19. 8. 1992 by an accident arising out of and in the course of his employment and the lorry was covered by the insurance. The appellant while travelling as the cleaner from Pamarru to Guntur on 19. 8. 1992, in the course of his employment the said lorry hit on his back side at Madira Hotel, Kaza village and the appellant received itijuries on his thumb and also his right leg and his thumb was amputated and he underwent operation to his right leg. At the time of the accident, he was aged about 23 years. The right leg was operated and the thumb of the appellant was removed and thus stated that he lost complete earning capacity and disability was 100 per cent. ( 3 ) AS far as the quantum of the earning capacity is concerned, the appellant is not disputing but only learned counsel for the appellant submitted that as per the oral and documentary evidence available on record, the loss of earning capacity is 100 per cent and the order of the Commissioner for workmen s Compensation, taking the loss of the earning capacity as 60 per cent alone is illegal and contrary to the Workmen s compensation Act and the judgments of the courts. ( 4 ) THE appellant was examined as AW 1 and Dr. P. Narasimham as AW 2. The appellant deposed that the accident occurred on 19. 2. 1992 at Nagarjuna University, while he was in the course of employment as a cleaner of the lorry bearing No, ADB 9176 and the police registered an F. I. R. which is marked as Exh. P. Narasimham as AW 2. The appellant deposed that the accident occurred on 19. 2. 1992 at Nagarjuna University, while he was in the course of employment as a cleaner of the lorry bearing No, ADB 9176 and the police registered an F. I. R. which is marked as Exh. A-l by the mangalagiri Rural Police Station and the charge-sheet was also filed which is marked as Exh. A-2 and Exh. A-3 is the wound certificate. The appellant was admitted to the Government Hospital, Guntur and he was treated there for four months as in-atient and the injuries sustained by him to his left leg and left bone was fractured and left great toe was amputated. Due to the injuries, he is not able to attend to the duties and he was removed from the duty after the accident and, thus, he is suffering total loss of salary as cleaner. Though the appellant claimed that he was drawing a salary of Rs. 1,000 per month, the Commissioner for Workmen s Compensation has arrived at a conclusion that the appellant was drawing only Rs. 800 per month and fixation of monthly salary at Rs. 800 has been accepted and not disputed by any of the parties. ( 5 ) DR. P. Narasimham, who has treated the appellant was examined as AW 2, has stated at that time, he was working as Professor of Orthopaedics and Civil Surgeon at GGM, Guntur and the appellant was admitted on 19. 8. 1992 with multiple injuries with in-patient No. 19743. X-ray was taken and the appellant sustained fractures of both bones of left leg, left foot fracture, left great toe was removed on 25. 8. 1992. At that time, long leg plaster of paris was given with some limp. On 12. 9. 1992, the manipulation was given on the anaesthesia and re-applied the long leg P. O. P. casting for the fracture of left leg. On 26. 9. 1992, once again reinforced the long leg P. O. P. casting so also on 30. 9. 92. On 20. 10. 1992 skin-grafting was done to the left foot. On 24. 11. 1992, re-manipulation was done to the fractured left leg, long leg POPC was given. On 1. 12. 1992 osteoclasis of both the fractured bones of the left leg was done and re-application of POPC was done and he was discharged on 10. 12. 9. 92. On 20. 10. 1992 skin-grafting was done to the left foot. On 24. 11. 1992, re-manipulation was done to the fractured left leg, long leg POPC was given. On 1. 12. 1992 osteoclasis of both the fractured bones of the left leg was done and re-application of POPC was done and he was discharged on 10. 12. 92 with necessary instructions for further follow up. On his examination, there was 3 cm. shortening of the left leg component with loss of great toe with gross stiffness of ankle joint and tarsometatarsal joints with loss of great toe of left leg. The disability that corresponds as per the manual for orthopaedics surgeon is evaluated permanent physical impairment and also loss as per the WC Act the total disability that corresponds 60 per cent. He also specifically deposed that the appellant cannot work as cleaner. There was no cross-examination by counsel of either of the parties of respondent Nos. 1 and 2 with regard to the capacity of the work of the appellant as cleaner but only suggested that the percentage of physical disability is exaggerated which has been denied by the doctor. This being the undisputed evidence of the doctor and the claimant supported by the documentary evidence stating that the appellant cannot work his duty as cleaner, the learned Commissioner for Workmen s compensation has taken the percentage of permanent disability of 60 per cent and equated with the earning capacity is also 60 per cent. The fact that the appellant cannot perform his duties as cleaner because of the total disability of 60 per cent has not been taken into consideration and the Commissioner for Workmen s Compensation on erroneous view of the fact and law came to the conclusion that the loss of earning capacity was only 60 per cent according to the doctor who treated him. As a matter of fact, doctor has not stated that the loss of earning capacity was only 60 per cent but he stated that the total disability that corresponds was only 60 per cent and specifically stated that the injured person cannot work his duties as cleaner and the appellant was removed from his job as he was incapacitated to perform his duty and. therefore, loss of earning capacity as cleaner was 100 per cent. therefore, loss of earning capacity as cleaner was 100 per cent. ( 6 ) THE learned counsel for the appellant in support of his contention has relied upon a judgment of this court in the case of National Insurance Co. Ltd. v. Mohd. Saieem Khan, 1993 ACJ 181 (AP), and his lordship Hon ble Justice Neeladri Rao, relying upon two other judgments in the case of Pratap Narain Singh Deo v. Shrinivas Sabata, 1976 ACJ 141 (SC) and punambhai Khodabhai Parmar v. G. Kenel construction, 1984 ACJ 739 (Gujarat), held that when there is incapacity to do work which he was performing by the date of the accident even though the workman is capable and able to render some other sort of work, it should be taken as total disablement. As per section 2 (1) (1), Workmen s compensation Act, total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. In the instant case, the appellant was working as a cleaner at the time of the accident and he became unfit to do the job of the cleaner and though the permanent disability was 60 per cent, he became incapable of doing the duties of cleaner and, therefore, he became totally disabled to perform the duties of the cleaner. ( 7 ) 1, therefore, hold that the loss of earning capacity shall be arrived at 100 per cent as the appellant became disabled to perform the job of the cleaner and the appellant is entitled to receive the compensation treating the total loss of earning capacity as 100 per cent. I accordingly, modify the order in W. C. No. 242 of 1992 of the Commissioner for Workmen s Compensation and remand the matter for fresh determination of the total compensation payable to the appellant considering the loss of earning capacity as 100 per cent. After arriving at the compensation amount for loss of 100 per cent earning capacity, the opposite parties jointly and severally shall be liable to pay the compensation and same shall be paid by means of a demand draft in favour of the Commissioner for workmen s Compensation within 30 days from the date of determination by the commissioner for Workmen s Compensation. No costs. Appeal allowed.