Shekar and Others vs A.T. Rangaswamy and Others

B.S. Patil, J.—These two appeals arise out of the common order dated 04.02.2011 passed by the Commissioner for Workmen''s Compensation, Hassan Sub-Division, Hassan. Hence, both are clubbed, heard together and are disposed of by this common judgment.

M.F.A. No. 8896/2011 is filed by the Insurance Company challenging the order passed by the Commissioner with regard to the quantum of compensation awarded in a sum of Rs. 2,41,992/-, whereas M.F.A. No. 10529/2011 is filed by the injured - workman seeking enhancement of compensation.

Facts involved in this appeal, stated in nutshell, are that the injured workman - Shekar suffered fractural injuries in his right femur on 08.03.2008 when the lorry bearing registration No. KA-12-4620 driven in a rash and negligent manner dashed against the Eicher Canter bearing registration KA-13 A 3310 driven by the workman. He was admitted to Chamarajendra Hospital, Hassan and was inpatient from 08.03.2008 till 04.04.2008. He underwent surgery.

Before the Workmen''s Compensation Commissioner, apart from examining himself, he has examined a doctor by name Dr. Lakshmeesh, who was Assistant Professor and Orthopedic Surgeon of Hassan Institute of Medical Science, Hassan. The Doctor has spoken about the condition of the injured workman. He has stated clearly that there was fracture in the right femur and bones at the fractured place were reduced into pieces and were protruding from the injured portion, therefore, surgery was conducted to fix the same. On examination, after the injury was healed and x-ray was taken, he found that the fractured femur was malunited restricting the movement of the right knee by 50% and rendering the right leg weak and feeble. He has further stated that as the associated nerves and muscles had been got attached, the same had resulted in forced restriction in the movement and therefore, in his opinion, permanent disability suffered was 28%. However, having regard to the nature of the work he was doing as a driver and the nature of the injury suffered, the Doctor has assessed the loss of earning capacity at 50%.

In the cross-examination of the Doctor, nothing worthwhile is elicited to discredit his version. Therefore, the Commissioner has accepted the version of the Doctor and has proceeded to quantify the compensation taking the loss of earning capacity at 50%. As the age of the injured was found to be 33 years, 4 months and 16 days, the relevant factor 201.66 was taken. Though the injured - workman had asserted that he was earning Rs. 6,000/- per month as driver, keeping in mind the evidence on record and the nature of the work the injured was doing when the accident occurred on 08.03.2008 as a driver, the Commissioner has taken the monthly wages earned by the injured - workman at Rs. 4,000/- and has quantified the compensation at Rs. 2,41,992/-.

Learned counsel appearing for the Insurance Company submits that the Commissioner has committed serious error in assessing the loss of earning capacity at 50% as the Doctor did not produce all the relevant materials disclosing the nature of the treatment he had given during the period when the injured was an inpatient. He has urged that for fracture of femur, loss of earning capacity could not have been assessed at 50%, particularly because the injured workman had got his licence renewed.

On the other hand, learned counsel appearing for the workman submits that as the workman had been deprived of his avocation as a driver and is no longer in a position to drive the vehicle, the Commissioner ought to have assessed the loss of earning capacity at a higher rate than 50%.

Upon hearing the learned counsel for both parties, I find from the evidence of the Doctor that the injured - workman suffered serious fractural injury resulting in comminuted fracture of the femur bone and that though the fractural injury had been healed and the bone had been united, there was malunion rendering the right leg weak and feeble resulting in restriction of movement, particularly affecting the joint. It is in this background, the Doctor has assessed the loss of earning capacity at 50%, though the disability compared to the whole body has been assessed at 28%. The Doctor has also stated that movement of right leg was found to be painful. It is his assertion that it would not be possible for the injured to climb, get down the step or to sit with cross leg. He has also stated that injured would face serious difficulty to carry on agricultural work.

Keeping in mind these associated permanent disability suffered, the Doctor has spoken regarding loss of earning capacity and has assessed it at 50%. The Commissioner has rightly accepted the evidence of the expert and has made it a basis for assessing the compensation. No illegality can be attributed to such findings. Hence, the contention urged by the learned counsel appearing for the Insurance Company cannot be accepted.

Insofar as the contention of the injured - workman stating that loss of earning capacity ought to have been assessed more than 50%, I do not find any supporting material. The evidence of the Doctor is clear and categorical. It is not as if the injured is incapable for carrying on any other activities. He can definitely carry on light work and engage himself in gainful employment. Therefore, question of assessing the loss of earning capacity beyond what has been done by the Commissioner which is based on the evidence of the expert does not arise.

Hence, both the appeals are dismissed. The amount in deposit shall be released to the injured - workman.