JUDGMENT
1. This Appeal is filed by the claimant having been aggrieved by the award passed by the Commissioner for Workmen’s Compensation-cum-Assistant
Commissioner of Labour, Circle-1, Guntur, in WC Case No. 155 of 1994.
2. It is the case of the claimant that he is a lorry cleaner and that during the course of his employment under the 1st respondent, on 1-7-1993 at about 3.00 a.m., while he was going as Cleaner on Lorry bearing No.AP-02-V-0990 with a load of poultry feed, an accident took place near Kallur bye pass road within the limits of Kallur Police Station. As a result of which, he fractured his right leg below the knee joint and right collar bone. Further, the great toe and second toe of his left leg were amputated. Therefore, he claimed an amount of Rs. 1,10,685/- as compensation under the Workmen’s Compensation Act.
3. During the course of enquiry, the claimant examined himself as AW1 and the Doctor who treated him was examined as AW2. Exs.A1 to A5 were marked. On behalf of the respondents, no body was examined and the insurance policy was marked as Ex.R1. On a consideration of the entire evidence on record, the learned Commissioner held that the claimant is entitled for compensation under the Act as he received personal injuries in the accident which took place during the course of his employment with the 1st respondent. Insofar as the compensation is concerned, the learned Commissioner determined the age of the claimant at 30 years as on the date of accident and, on the basis of the minimum wages fixed in G.O. Ms. No.71, dated 16-4-1991, assessed the monthly wage of the claimant at Rs.1,593/- but, however, restricted the same to Rs.1,000/- per month. Further, the learned Commissioner assessed the loss of earning capacity of the claimant at 90%. Taking into account all the above factors, the lower authority fixed the compensation at Rs.93,591/-besides stamp duty of Rs.188/-, totalling to Rs.93,779/-, which was accordingly
awarded as compensation in this case. Aggrieved by the said award, the present appeal is filed.
4. It is the contention of the learned Counsel for the appellant that as per the medical evidence, the appellant suffered 60% permanent disability, due to which the appellant is not able to perform his usual duties which he used to do prior to the accident and thereby sustained 100% loss in his earning capacity. In such an event, it is contended that the claimant is entitled for 100% compensation. In support of his contention, learned Counsel placed reliance upon a decision of the Gujarat High Court in Gujarat State RTC v. Balusinh Nathusinh Parmar, II (1992) ACC 157.
5. On the other hand, the Counsel for the respondents contended that basing on the percentage of disability certified by the doctor, the learned Commissioner rightly fixed the disability at 90% and accordingly granted compensation, which is quite reasonable in the facts and circumstances of the case and that, therefore, there is no reason to enhance the said compensation amount.
6. As seen from the record, especially the evidence of the Doctor who treated the claimant in this case, the claimant suffered serious crush injuries. The right leg and left foot of the claimant were crushed. Steel Plates were fixed in the right leg and thereafter, the plates were removed and skin grafting was done over the right leg. The Doctor deposed that the claimant had shortening of left great toe and second toe. He further deposed that the claimant had contraction of right knee joint and also disfigurement of right leg. He certified that the claimant sustained 60% disability and further opined that he cannot perform the duty of a motor vehicle driver in future. The above medical evidence clearly shows that the claimant suffered
disability which continues forever in his life time, causing him constant trouble in his daily life.
7. Even though the disability was certified to be only 60% by the Doctor, the very same Doctor opined that the claimant could not perform the duty of motor vehicle driver in future. Thus, the 60% disability virtually resulted in disability of 100% in the earning capacity of the claimant. In similar circumstances, the Gujarat High Court in the aforementioned case held that where the workman is found to have lost 100% earning capacity due to accident even though the disability certified by the Doctor may have been lesser, the workman is entitled for 100% compensation. In that case, the claimant was travelling as a passenger in a State Road Transport Bus and when the bus reached a village called Moduka, it hit one bullock cart which was coming in opposite direction carrying some corrugated iron sheets and as a result of the accident, the right hand right finger and last finger of the claimant, who was sitting on right hand side window seat in the bus, were crushed and the claimant also received injuries in his palm. The claimant was doing agricultural work as well as a mechanic. A claim petition was filed claiming damages in a sum of Rs.25,000/-. The lower Tribunal, after considering the evidence on record, assessed the damages in a sum of Rs. 20,000/- and accordingly awarded the said amount. The State Road Transport Corporation filed appeal questioning, inter alia, the correctness of the assessment of damages made by the Tribunal. In that connection, the Gujarat High Court held as under:
“It is difficult to accept the submission urged before me by Shri Pandya for the appellant with respect to assessment of the damages made by the Tribunal. It is true that respondent No.1 did not bring
on record any documentary evidence in support of his income from his agricultural work and from his work as mechanic. He did not bring on record any documentary evidence showing that he was in occupation and/or in possession of some agricultural land. It may be noted that he was a young man of 24. He was an able-bodied person. No infirmity in his physique was brought on record which could have incapacitated him from eking out his living. But for the injuries sustained by him as a result of the accident, as an able-bodied person, it would not have been difficult for him to earn his livelihood. The disability qua injuries to his fingers has imparied to a great extent his earning capacity. It is true that the Medical Practitioner has certified his disability to the extent of 10% only. That quantum of disability relates to the body as a whole. The percentage of such disability qua the body as a whole need not be accepted as the disability qua a person’s earning capacity. A stenographer’s earning capacity depends upon the use of his fingers effectively and efficiently. In that view of the matter, the disability on account of injuries to the last two fingers suffered by respondent No.1 herein as a result of the accident will have to be looked from his capacity to earn. As transpired from the medical evidence on record, he would not be in a position to bend those two fingers of his. He would not be able to have a grip of things with those two fingers of his. The lower Tribunal has accepted his version of his occupation as an agriculturist. It cannot be gainsaid that the use of hand occupies a predominant place in agricultural operations. With disability on account of injuries to his two fingers, the use of his hand would be impaired to that extent. In that view of the matter, the learned Presiding Officer of the lower Tribunal was right in assessing the
disability qua his earning capacity at 33 per cent.”
8. Thus, as per the decision of the Gujarat High Court, the disability suffered by the injured claimant will have to be looked from the standpoint of the disability qua his earning capacity. In some cases, though the percentage of disability assessed by the medical officer may be quite negligible and may not make the injured person hundred percent disabled in his routine daily life. But, when it comes to his livelihood, the disability may, in some cases, certainly become a big hindrance for the injured, in which case, it must be held that the injured sustained hundred percent loss in his earning capacity. Take the example of an auto mechanic or a motor vehicle driver or an agricultural coolie or a stenographer. People belonging to the above categories entirely depend upon their hands and fingers. Any amount of disability or loss of any one of their fingers or hands would totally incapacitate them from doing their job as effectively as they could do prior to the disablement, even though in such cases the percentage of disability assessed by the medical practitioner is quite negligible in proportion. Therefore, in such cases, while computing compensation, the disability has to be determined by the Court with reference to the earning capacity of the injuried claimant by duly taking into account the nature injuries sustained by him qua the nature of his profession. In view of what is stated supra, I see no reason to differ from the view taken by the Gujarat High Court.
9. In the instant case, as already noticed, the right collar bone of the injured was fractured and his right leg and left foot were crushed. Steel plates were fixed by the Surgeon and they were removed after some time. At the time of accident, the injured claimant was working as Cleaner in the lorry. But for the accident,
the claimant would have become a driver in due course of time and the disability sustained by the claimant in the accident totally incapacitated the claimant from working as driver, or for that matter even as Cleaner because of the crush injuries to his right leg and left foot and also because of the fracture to collar bone and, therefore, the disability in respect of his earning capacity is 100% and the compensation in this case must be calculated on that basis only. Accordingly, I am of the view that the claimant is entitled for 100% compensation as claimed by him.
10. In the result, the appeal is allowed and the claimant is entitled to the full compensation amount of Rs.1,10,685/-instead of Rs.93,591/- awarded by the learned Commissioner. No costs.