Andhra HC (Pre-Telangana)
New India Assurance Company Ltd. vs K. Yadaiah And Anr. on 25 January, 2005
Equivalent citations: III(2005)ACC426, 2007ACJ198, 2005(3)ALD509, 2005(3)ALT666
JUDGMENT D.S.R. Varma, J.
1. This appeal is filed against the order-dated 22-6-2004 in W.C. No. 158 of 2003, on the file of Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-III, at Hyderabad.
2. The only question that arises for consideration in this appeal is whether the evidence of the doctor to the effect that the disability of the injured is to the extent of 60% and whether the Court is right in estimating the disability at 100% having regard to the facts and circumstances of the case?
3. Undisputed facts are that the claimant was working as a driver of the vehicle, which met with an accident and on account of which, the driver suffered certain injuries. Ex.A2 is the original Discharge Summary of Osmania General Hospital and Ex.A3 is the original Disability Certificate. The injuries suffered by the driver were certified by a qualified Orthopaedic Surgeon, who examined as AW2, and he estimated the disability at 60% and opined that there is limping and shortening of left lower limb and the injured cannot bend forward and cannot drive the vehicle as usually as he used to drive and the disability is permanent in nature. It is further opined by the doctor that the injured was advised against driving any vehicle. However, the Court below arrived at a conclusion that the disability was 100%.
4. The learned Counsel appearing for the appellant vehemently contends that the injury suffered by the injured does not find place, either in Part I or Part II of Schedule 1 of the Workmen's Compensation Act, 1923, in order to estimate the percentage of loss of earning capacity at 100%. Therefore, he contends that the estimation of disability should be at 60% as opined by the doctor.
5. A careful perusal of the opinion of the doctor would reveal that the doctor, who is no other than the Orthopaedic Surgeon, basing on Ex.A2, original Discharge Summary of Osmania General Hospital, opined that the inured received injury of limping and shortening of left lower limb and the injured cannot bend forward and cannot drive any vehicle as usually as he used to drive. It appears further that he was advised against driving of any vehicle, meaning thereby, that the injured was advised not to drive any vehicle forever.
6. Thus the injury, no doubt, does not appear in Part 1 or Part II of the Schedule I, of the Act, and the Schedule deals with only various injuries mentioned therein, visa-vis, the loss of earning capacity. Therefore, there might be some other injuries, which do not form part of either Part I or Part II of Schedule I of the Act. In other words, I am of the view that the injuries mentioned in Part I and Part II of the Schedule I of the Act are not exhaustive and those injuries, related with the earning capacity shall always be read with in the context of an injury, which does not form part of the Schedule vis-a-vis the earning capacity.
7. In the instant case, there was shortening of the leg and the injured cannot bend forward and drive the vehicle and was suggested not to drive the vehicle in future. However, the doctor estimated the disability at 60%.
8. The estimation of disability at 60% made by the doctor is only physical and not related to the earning capacity. Having regard to the fact that the injuries suffered by the injured which do not form part of the Schedule, resulted in permanent disability of his participation in the occupation in which he had been involved. It is not in dispute that he was a driver by occupation. There is nothing on record that the injured person was able to do any other job. In other words, he was a professional driver and his services would all along be utilized only as a driver. Even otherwise, as opined by the doctor, because of those injuries, he cannot bend forward his limb forever, and with that disability, he cannot be expected to have an earning capacity at 100% as he was getting before.
9. The disability expressed by the doctor is only physical but not professional vis-a-vis the earning capacity. As already noticed, the disability though not a scheduled injury under the Act, is an injury and the disability estimated at 100%, insofar as the earning capacity is concerned.
10. If really, the contention of the learned Counsel appearing for the appellant is to be accepted, since this injury does not find place in the Schedule at all, it has to be understood, as there was no loss of earning capacity at all, which in my view is something absurd. The scheduled injuries viz., earning capacity and the disability has to be understood in a pragmatic way - the statute being a beneficial piece of legislation. Therefore, I do not find any apparent illegality or irregularity committed by the lower Court in arriving at the loss of earning capacity at 100%.
11. For the foregoing reasons, I do not find any merit in the appeal and accordipgly, thetappeal is dismissed. No costs.