A. Jeyasankar vs Reena Borewell and Another

Chitra Venkataraman, J.—This appeal the Order of the Commissioner awarding has been preferred by the claimant against compensation

under the Workmen''s Compensation Act. The appellant herein was working as a coolie under the respondent No. 1 herein running a borewell

company and the appellant''s duty was loading the borewell pipes and other things relating to the borewell machine and unloading the same and

instal the machine in the borewell place. On 19.10.1995, at 10p.m. after finishing the borewell work, they were returning to Dindigul. The lorry

was coming near Chokkalingapuram in Melur Taluk, Madurai District. The petitioner travelling fell down from the lorry and sustained compound

fracture on the left leg below knee and pelvis bone and head injuries. The multiple injuries suffered by him were while he was in the course of and

in connection with the employment.

A claim petition was filed before the authorities below claiming compensation to the tune of Rs. 2,70,264. The claimant''s monthly salary was

stated as Rs. 2,000 with a daily batta of Rs. 25. The claim was resisted by the employer on the ground that onus was only on the claimant to prove

that accident had occurred because of the rash and negligent driving of the lorry apart from the fact that he was in employment at that time. It was

also contended that the respondent had the policy of insurance and the compensation should be awarded only as per that. In the course of

evidence one Dr. Shanmuganathan was examined as PW 2. According to him, after going through the clinical examination and an X-ray taken the

disability certificate was given to the effect that the damage was to the extent of 56 per cent. The X-ray was marked as exhibit in the proceedings

on the side of the respondent. On going through the evidence, the authorities below held that the accident occurred while the appellant was in his

employment, however, analysing the evidence of the petitioner-claimant as well as the certificate issued by the medical practitioner, the authorities

below fixed the loss of earnings as 30 per cent. The age of the claimant was fixed as 19. Taking note of all this, the compensation is fixed at Rs.

67,985 at 12 per cent interest. Aggrieved of this, the claimant is in appeal.

The learned Counsel for the appellant submitted that the Commissioner Workmen''s Compensation has reduced the permanent disability from

56 per cent to 30 per cent contrary to the certificate issued by the medical practitioner. In the circumstances, when the factum of the accident has

been held to be admittedly arising in the course of employment with respondent No. 1, the arbitrary reduction to 30 per cent was contrary to the

evidence. At the time of hearing, the learned Counsel for the appellant, however could not sustain the said submission. Apart from the evidence of

the doctor and the claimant, it may be seen that there was no evidence to show that there was a reduction in the earning capacity on account of the

disability and that he can do the job of load man with certain amount of difficulty.

As rightly contended by the learned Counsel for respondent No. 2, the disability certificate at best only showed the extent of handicap suffered

but that by itself would not sustain the claim for higher compensation on account of loss of earning capacity. In the absence of any material

evidence to sustain the claim and loss of earning capacity, I do not find any reason to interfere with the Order of the authorities below. Therefore,

the civil miscellaneous appeal is dismissed.

No costs.