The applicant in W.C.No.210 of 2004 assailing the impugned order dated 21.06.2005 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I, Hyderabad filed this C.M.A. seeking enhancement since he was awarded only Rs.3,02,803/- though he claimed a total compensation of Rs.5,00,000/- for the grievous injuries and fractures sustained by him in the accident out of and during the course of employment with opposite party No.1.= not considering the loss of earnings at 100% as he sustained crush injury to left leg and the same is evident from the testimony of AW-2 - orthopaedic surgeon who has stated in clear terms that because of crush injury suffered by him, he is unfit to drive any vehicle.-The trial Court after taking into consideration the evidence of AW.1, RW.1 and RW.2 and Exs.A.1 to A.15, B.1 and D.1, has come to the conclusion that the applicant suffered 40% permanent disability and he also suffered loss of earning capacity at 75%. Having regard to the evidence on record and the facts and circumstances of the case, this Court is of the view that the trial Court has rightly assessed that the applicant suffered 40% permanent disability and loss of earning capacity at 75%. However, the trial Court ought not to have applied G.O.Ms. No.30 LET &F (Lab-11) dated 27.7.2000 in the instant case when the evidence of AW.1 is categorically substantiated by RW.1 that the applicant was paid a salary of Rs.4,000/- per month. It is no doubt true that there is no documentary evidence on record to show that the applicant was paid Rs.4,000/ per month towards salary/wages In such a situation, the trial Court at least ought to have fixed the earnings of the applicant at Rs.3,500/- (wages + batta) per month, having regard to the facts and circumstances of the case, which is in the opinion of this Court is just and reasonable and would meet the ends of justice. Therefore, the wages/salary/bata of the applicant has to be fixed at Rs.3,500/- per month and the same is hereby enhanced. Thus the applicant is entitled to a total compensation of Rs.3,52,800/- (Rs.3,500 X 60/100 X 75/100 X 224.00). In the result, the appeal is partly allowed enhancing the total compensation from Rs.3,02.803/- to Rs.3,52,800/- (Rupees three lakhs fifty two thousand eight hundred) only. No order as to costs.

HON'BLE SRI JUSTICE B.N. RAO NALLA      

C.M. A. No.496 OF 2009

04.10.2012    

Sri Ravula Krishna

1)Smt. Lakshmamma  
 2)The Oriental Insurance Co. Ltd.,

Counsel for the Appellant: Sri Sri K.Jagathpal Reddy

Counsel for Respondent No.2  : Sri G.Purushotham Rao

<GIST :

>HEAD NOTE :  

?Cases referred :

 -Nil-

JUDGMENT:  

The applicant in W.C.No.210 of 2004 assailing the impugned order dated
21.06.2005 on the file of the Commissioner for Workmen's Compensation and 
Assistant Commissioner of Labour-I, Hyderabad filed this C.M.A. seeking
enhancement since he was awarded only Rs.3,02,803/- though he claimed a total 
compensation of Rs.5,00,000/- for the grievous injuries and fractures sustained
by him in the accident out of and during the course of employment with opposite
party No.1.

2.       The parties hereinafter referred to as they arrayed in the W.C.

3.       The brief facts of the case of the applicant are that he was working as
driver of auto trolley bearing No.AP 29 T 2193 belonging to opposite Party No.1
and  he was paid monthly salary at the rate of Rs.4,000/-; that on 31.08.2004,
while he was proceeding in the said auto trolley from Hyderabad towards
Vijayawada, at about 3.30 p.m., near Toopranpet village, a lorry was coming in
high speed and was trying to overtake a bus and he tried to avoid head on
collision with the said vehicle and took the auto trolley to the extreme left
side and in that process, the auto trolley fell down, as a result, he sustained
a crush injury to his left leg and a head injury besides fractures to his right
ankle and that  P.S.  Choutuppal registered a case in Crime No.140 of 2004 and
he was shifted to Osmania General Hospital, Hyderabad, where the doctors
suggested him that his left leg is to be amputated because of the injuries
sustained to his left tibia.  The applicant and his parents had opposed for such
amputation, and as such, he was discharged from Osmania General Hospital and was  
admitted in Anurag Orthopaedic Multi Speciality Hospital, where he was operated
and nails and rods were inserted into his leg; that for the treatment he had
incurred an expenditure of Rs.1,25,000/- and he has to further spend Rs.30,000/-
to Rs.50,000/- towards medical expenses and that he has taken those amounts from
his relatives and friends.  Because of the fractures, his life became miserable
as he is unable to walk, sit, fold his leg, squat and attend to his nature calls
and is limping while walking and the movements of his left leg are restricted.
The doctors informed him that he is unable to drive, and thus stated he has
suffered 100% loss of earning capacity.  The accident arose out of and in the
course of his employment with opposite party No.1.  He was aged about 21 years
at the time of the accident.  Opposite party No.1 visited him in hospital and
informed him that the auto trolley was insured with opposite party No.2.
Opposite party No.1 is the registered owner of the auto trolley and opposite
party No.2 is the insurer, and as such, he claimed that both the opposite
parties are jointly and severally liable to pay a compensation of Rs.5,00,000/-.

4.      Opposite Party No.1 filed her counter stating that there is no dispute
with regard to occurrence of the accident, narration of the accident, employment
of the applicant, registration of a case by the police and his treatment in
Osmania General Hospital.  It is also stated that the claim of the applicant
that he suffered loss of earnings at 100% has to be substantiated by filing
necessary documents.  It is denied that the applicant was paid Rs.4,000/- per
month towards salary/wages and his age was 21 years.  It is stated that she has
paid Rs.3,000/- towards  medical expenses to the applicant in addition to his
wages.  It is further stated that the auto trolley was insured with opposite
party No.2 and opposite party No.2 is liable to pay compensation, and as such,
the petition may be dismissed against opposite party No.1.

5.      Opposite party No.2 filed its counter denying the averments made in the
claim petition.  It is stated that the applicant has not filed any documents to
show that he worked as driver of the auto trolley bearing No. AP 29 T 2193
belonging to opposite party No.1, the occurrence of the accident out of and
during the course of employment with opposite party No.1, he was aged 21 years
at the time of the accident and he was paid salary/wages at Rs.4,000/ per month
besides batta.  It is denied that the accident occurred and the applicant
sustained injuries, hospitalised and subsequent disablement and medical
expenditure incurred by him.  The applicant has not filed any documents to show
that he suffered 40% permanent disability and 100% loss of earning capacity.

6.      Based on the rival pleadings, the trial Court framed the following points
for consideration.
1. Whether the applicant, Sri R.krishna, met with an accident on 31.8.2004,
which arose out of and in the course of his employment as a driver on the auto
trolley bearing No.AP 29 T 2193 in the employment of the 1st opposite party and
sustained injures.
2. If yes, what is the percentage of physical disability suffered by the
applicant and consequent loss of earning suffered by the applicant?
3. Who are liable to pay compensation to the applicant? And
4. What is the amount of compensation entitled by the Applicant?


7.      On behalf of the applicant, applicant himself got examined as AW.1 and
also got examined an Orthopaedic Surgeon as AW.2 and got marked Exs.A.1 to A.15.  
On behalf of opposite party No.1, her husband was examined as RW.1 and Ex.B.1-
original insurance policy and Ex.B.2-authorisation letter were marked and on
behalf of opposite party No.2, no oral evidence was let in, however, Ex.D.1-copy
of insurance policy was marked.

8.      The trial Court, taking into consideration the evidence of AW.1, AW.2 and
RW.1 and Exs.A.1 to A.15, B1, B2 and D.1, and the submissions made on either
side, held that the accident occurred on 31.08.2004 and the applicant was driver
of the auto trolley bearing No.29 T 2193 at the time of the accident, which was
insured with opposite party No.2 and the accident occurred out of and in the
course of his employment with opposite party No.1 and he sustained injuries in
the accident.  As such, opposite party No.1 and opposite party No.2 are jointly
and severally liable to pay a compensation of Rs.3,02,803/-.  Being not
satisfied with the compensation awarded by the trial Court, the applicant filed
this Civil Miscellaneous Appeal.

9.      Heard the learned counsel for the applicant (appellant herein) and the
learned standing counsel for opposite party No.2- insurance company and perused
the material on record.

10.     It is the case of the applicant that the trial Court committed an error in
not considering the loss of earnings at 100% as he sustained crush injury to
left leg and the same is evident from the testimony of
AW-2 - orthopaedic surgeon who has stated in clear terms that because of crush
injury suffered by him, he is unfit to drive any vehicle.  A perusal of Exs.
A.11 and A.12 discloses that the applicant has suffered bone deep crush injury
to his left leg below knee viz., Grade III compound comminuted fracture of both
bones left leg middle 1/3; that both bones of left leg were fractured and he was
treated with external fixation, and skin grafting was done and the same is
resulted in shortening of leg by
1 1/2  inch.  So far as the earning capacity of the applicant at the time of
accident is concerned, it is in the evidence of RW.1 that they were paying him
Rs.4,000/- per month towards salary/wages to the applicant, however, the trial
Court failed to accept the same and erroneously fixed his monthly earnings at
Rs.3004/- by pressing the G.O. Ms. No.30 LET &F (Lab-11) dated 27.7.2000 into
service.  The G.O. is to be applied only in the absence of any evidence or other
material on record, however, in the instant case there is ample evidence on
record to show that the applicant was earning Rs.4,000/- per month salary/wages.
Therefore, it is contended that the trial Court has manifestly committed an
error in reducing his monthly earnings and that the trial Court is not justified
in dong so.

11.      It is the case of opposite party No.2 - insurance company that the trial
Court after taking into consideration the evidence and the facts and
circumstances of the case, has awarded compensation which is more than the just
compensation and as such, there are no merits in the appeal and the same is
liable to be dismissed.

12.     The trial Court after taking into consideration the evidence of AW.1,
RW.1 and RW.2 and Exs.A.1 to A.15, B.1 and D.1, has come to the conclusion that  
the applicant suffered 40% permanent disability and he also suffered loss of
earning capacity at 75%.  Having regard to the evidence on record and the facts
and circumstances of the case, this Court is of the view that the trial Court
has rightly assessed that the applicant suffered 40% permanent disability and
loss of earning capacity at 75%.  However, the trial Court ought not to have
applied G.O.Ms. No.30 LET &F (Lab-11) dated 27.7.2000 in the instant case when 
the evidence of AW.1 is categorically substantiated by RW.1 that the applicant
was paid a salary of Rs.4,000/- per month.  It is no doubt true that there is no
documentary evidence on record to show that the applicant was paid Rs.4,000/ per
month towards salary/wages  In such a situation, the trial Court at least ought
to have fixed the earnings of the applicant at Rs.3,500/- (wages + batta) per
month, having regard to the facts and circumstances of the case, which is in the
opinion of this Court is just and reasonable and would meet the ends of justice.
Therefore, the wages/salary/bata of the applicant has to be fixed at Rs.3,500/-
per month and the same is hereby enhanced.  Thus the applicant is entitled to a
total compensation of Rs.3,52,800/- (Rs.3,500 X 60/100 X 75/100 X 224.00).

13.      In the result, the appeal is partly allowed enhancing the total
compensation from Rs.3,02.803/- to Rs.3,52,800/- (Rupees three lakhs fifty two
thousand eight hundred) only.  No order as to costs.

B.N. RAO NALLA, J  
Date:04.10.2012