W.C No. 44 of 2001 · Andhra Pradesh High Court

This Appeal is filed by the Insurance Company, which was arrayed as second respondent in W.C.No. 44 of 2001 before the Commissioner for Workmen and Assistant Commissioner of Labour, T.C Zone, Hyderabad-II. The respondent-claimant had approached the Commissioner contending that while working as Driver with the second respondent herein, on a lorry bearing No. ATT 2900, an accident occurred on 6.1.2001 resulting in serious injuries and fractures to the said claimant requiring his hospitalisation in the Government Hospital initially and then in a private hospital. He claimed that he is drawing salary of Rs. 3,500/- per month besides batta of Rs. 50/- per day and he is 31 years old and accordingly made a claim for Rs. 2,00,000/-. In support of his claim he examined himself as PW-1 and also Orthopedic Surgeon, who treated him, as PW-2. On the basis of medical evidence that the claimant suffered amputation of left great toe and an injury to the left shoulder and the doctor certified the disability caused to the claimant at 45% and gave certificate Ex.

A-5, which was taken into consideration by the Commissioner and taking the age of the claimant as 31 and his monthly wages at Rs. 3,470/- per month, he has calculated the compensation at Rs. 1,92,954/- and allowed the claim with costs. In this appeal, the learned counsel for the appellant raised only one substantial ground with respect to the quantum of disability being excessive and against the statutory quantification of 14% for loss of left toe and the said contention is based upon Schedule I part II entry 39 of the Employees Compensation Act, 1923, which reads as under: “B-Toes of right or left foot Great Toe Sl.No. Description of injury Percentage of loss of earning capacity 39 T h r o u g h metatarso Physical Joint 14 The learned counsel appearing respondent-claimant submits that the doctor himself has examined and has given the disability certificate and there was no other rebuttal evidence to disprove the said contention.

The respondent-claimant was a lorry driver and even loss of left toe cannot be said to affect his functional ability to drive the heavy vehicle. Statutorily such disability is quantified and the relevant entry in the Schedule is extracted as above. The same has been quantified as 14%. The assessment of the disability 45%, as has been done by the Commissioner is clearly against the Statute. The attention of the Commissioner was apparently not drawn to the aforesaid entry in ‘Schedule I’. I am therefore, inclined to interfere with the award by reducing the relevant disability from 45% to 14% and the same is accordingly calculated. As the age of the claimant is 31 years, the relevant factor applicable is 205.95. His monthly wages are calculated at Rs. 3,470/-. Now the compensation payable comes to Rs. 60,030/- ( 3470x60/100 x205.95 x14/100 = 60,030) Accordingly, the Civil Miscellaneous Appeal is

allowed in part. There shall be no order as to costs. ___________________________ VILAS V. AFZULPURKAR, J DATE: 28.06.2012 KA