Functional disability, not just physical impairment percentage, determines loss of earning capacity for compensation under Workmen's Compensation Act.

JUDGMENT :

SUMATHI JAGADAM, J.

This appeal is filed against the order dated 25-01-2006 in W.C. No. 61 of 2004, on the file of the Commissioner for Workmen's Compensation and the Assistant Commissioner of Labour-I Circle at Guntur (for short “the Commissioner”), by raising the following substantial question of law for consideration:

(i) Whether the court below is right in assessing the loss of earning capacity to an extent of percentage of permanent partial disability sustained in an accident arising out of and in the course of employment?

(ii) Whether the court below has materially erred in assessing the compensation, taking the 30% loss of earning capacity?

(iii) Whether the court below is justified in not awarding interest on the compensation amount?

(iv) Whether the court below is justified in taking only the minimum wages fixed by the Government for assessing the compensation?

2. The appellant has raised various grounds in the present appeal, and they are as follows:

(a) The court below erred in awarding Rs.72,159/- towards compensation against the claim of Rs.3,00,000/- .

(b) The court below erred in taking only minimum wages fixed by the Government for a cleaner while assessing the compensation and minimum wages fixed by the Government is only a guiding factor and necessarily the same for assessing the compensation.

(c) The court below erred in fixing the loss of earning capacity at 25% through the doctor who treated the appellant and categorically stated in his evidence that the physical disability suffered by the appellant is to an extent of 20% to 25% and it is permanent in nature and he is totally unfit to work as a cleaner and ought to have taken the loss of earning capacity of the appellant as 100% and awarded the compensation on the basis of earning capacity by applying Section 2 (1) of the Workmen’s Compensation Act, 1923 (for short “the W.C. Act”).

(d) The claim of the appellant is that he was earning Rs.3,000/- per month which was just and reasonable and the same does not warrant any reduction.

3. The learned Commissioner has thoroughly examined the matter before him. After reviewing the documents submitted by the appellant, namely, the FIR (Ex.A-1), Charge Sheet (Ex.A-2), Wound Certificate (Ex.A-3), Doctor Certificate (Ex.A-4), Medical Prescriptions (Ex.A-5), Insurance Policy (Ex.A-6=Ex.R-1), Registration Certificate (Ex.A-7), Driving Licence (Ex.A-8=Exs.R-2&3), and Goods Carriage Permit (Ex.A-9)—as well as the evidence provided by the parties, the Commissioner concluded that the applicant was a workman and sustained personal injuries in an accident arising out of and during the course of employment with the opposite party-I. The applicant's age at the time of the accident was determined to be 30 years. In determining the compensation, the minimum wages applicable to a cleaner in public motor transport, as specified in G.O.Ms.No.390 dated 27.07.2000, were taken into account. Accordingly, the wages of the applicant amounting to Rs.2313/- per month were fixed in accordance with the provisions of the Worker’s Compensation (Amendment) Act, 2000.

4. The evidence of the Doctor and Exs.A-3 to A-6 were duly considered, leading to the conclusion that the appellant is unable to squat or sit like a normal person and is consequently unfit for the occupation undertaken prior to his injury. Accordingly, the applicant's physical disability is 20% to 25%. The Commissioner has concluded that 25% of earning capacity has been lost and has arrived at a compensation amount of Rs.72,304/- to be paid by the respondents within 30 days of receipt of a copy of the order. Aggrieved against the same, the appellant is befo