ORDER
1. The applicant filed this civil miscellaneous appeal questioning the order of the Commissioner for Workmen’s Compensation, Guntur, in WC No.247 of 1992; dated 2-9-1993, insofar as it went against the contention of the appellant in not agreeing the loss of earning capacity as 100%. The 1st respondent is the owner of the offending lorry. The 2nd respondent is the Insurance Company.
2. The brief facts of the case are that the appellant was appointed as a cleaner by the 1st respondent on his lorry bearing No.ADB9176 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 injuries on his thumb and also his right teg 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%.
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% and the order of the Commissioner for workmen’s compensation, taking the loss of the earning capacity as 60% alone is illegal and contrary to the Workmen’s Compensation Act and the judgments of the Courts.
4. The appellant was examined as AW1 and Dr. P. Narasimham as AW2. The appellant deposed that the accident occurred on 19-2-1992 at Nagarjuna University, while he was in the course of the employment as a cleaner of the lorry bearing No.ADB9176 and the police registered a FIR which is marked as Ex.A1 by the Mangalagiri Rural Police Station and the charge-sheet was also filed which is marked as Ex.A2 and Ex.A3 is the wound certificate. The appellant was admitted in the Government Hospital, Guntur and he was treated there for four months as in patient 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 to a conclusion that the appellant was drawing only Rs.800/- per month and fixation of monthly salary of Rs.800/- p.m. has been accepted and not disputed by any of the parties.
5. Dr. P. Narasimham, who has treated the appellant was examined as AW2, has stated at that time, he was working as Professor of Orthopedics 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 Anesthesia and re-applied the long leg POP casing for the fracture left leg. On 26-9-1992, once again reinforced the long leg POP casing so also on 30-9-1992. On 20-10-1992, Skin Grafting was done to the left foot. On 24-11-1992, remanipulation has done to the fractured left leg long leg POPC was given. On 1-2-1992, Ostuclasis of the fracture both bones of the left leg was done and re-application of POPC was done and he was discharged on 10-12-1992 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 tarsomenttosse joints and torse mettorsel joints with loss of great toe of left leg. The disability that corresponds as par the manual for Orthopedics Surgeon is evaluated permanent physical impairment and also loss as per the bears WC Act the total disability that corresponds 60%. He also specifically deposed that the appellant cannot work as cleaner. There was no cross-examination by Counsel of either of the parties of 1st and 2nd respondents 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 slating that the appellant cannot work his duty as cleaner, the learned Commissioner for Workmen’s
Compensation, taken the percentage of permanent disability of 60% and equaled with the earning capacity is also 60%. The fact that the appellant cannot perform his duties as cleaner because of the total disability of 60 % has not been taken into consideration and the Commissioner for workmen’s compensation one erroneous view of the fact and law came to the conclusion that the loss of earning capacity was only 60% 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% but he stated that the total disability that corresponds was only 60% 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, the loss of earning capacity as cleaner was 100%.
6. The learned Counsel for the appellant in support of his contention relied upon by ajudgment of this Court in the case of National Insurance Company Limited v. Mohd. Saleem Khan, , and his Lordship Hon’ble Sri Justice Neeladri Rao, relying upon two other judgments in the case of Pratap Narain Singh Deo v. Shrivinvas Sabata, 1976 ACJ 141, and Punambhai Khodabhai Parmar v. G. Kenel Constructions, 1984 ACJ 739, held that when there is in capacity 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) 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%, he became incapable of doing the duties of cleaner, and therefore, he became totally disable to perform the duties of the cleaner.
7. I, therefore, hold that the loss of earning capacity shall be arrived at 100% as the appellant became disable to perform the job of the cleaner and the appellant is entitled to receive the workman’s compensation treating the total loss of earning capacity as 100%. I accordingly, modify the order in WC No.242 of 1992 of the Commissioner of 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%. After arriving the compensation amount of 100% 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 compensation.
No costs.