The importance of medical evidence in estimating the loss of physical capacity and the earning capacity of the affected workmen.

1. The insurance company has come forward with this appeal questioning the quantum of compensation awarded by the Deputy Commissioner of Labour, Salem at Rs.3,60,542/- in favour of the first respondent herein for the injuries sustained by him during the course of his employment with the second respondent.

2. The claimant filed the claim petition contending that on 09.11.2011, when he was driving the lorry bearing Registration No. tN-28-V-2475 belonging to the second respondent herein, at Bijapur, Karnataka State, the lorry involved in an accident with another lorry bearing Registration No. KA 22 A-4647. In the accident, the claimant sustained fracture on his right side hip, lost two teeths and grievous injuries all over the body. The claimant was admitted in a local hospital at Bijipur from where he was shifted to National Hospital, Erode. Subsequently, the claimant was admitted in Ganga Hospital, Coimbatore for better treatment. The claimant was admitted in the hospital for 1 = months for the injuries sustained in the accident. Due to the injuries in the hip bone, his kidney has severely affected and he finds it difficult to pass urine. According to the claimant, he sustained injuries during the course of his employment as Driver of the lorry belonged to the second respondent, which was insured with the appellant insurance company. The claimant was drawing a sum of Rs.4,000/- as salary, which is inclusive of batta per month. Therefore, for the injuries sustained in the accident, he sought for compensation of Rs.5,00,000/-.

3. The insurance company resisted the claim petition and disputed the age and income of the claimant and also the employment of the claimant with the owner of the lorry.

4. The Deputy Commissioner of Labour, Salem, after considering the oral and documentary evidence, passed the impugned award directing the appellant insurance company to pay the compensation of Rs.3,60,542/- within 30 days thereof.

5. At the time of admission of this appeal, the below mentioned substantial questions of law are framed for consideration by this Court:-

(i) Whether the award is not excessive and in erroneous exercise of jurisdiction by fixing percentage of loss of earning capacity at 50% without specific medical evidence in that regard when the available medical evidence is that there is only 15% permanent disablement?

(ii) Whether the Deputy Commissioner of Labour is entitled to fix a grossly high percentage of loss of earning capacity without any supporting medical evidence as done in thepresent claim and contrary to the assessment of the disablement of medical expert?

6. The insurance company admits the date, time and manner in which the accident had occurred, the employer-employee relationship between the claimant and the owner of the lorry and also the liability to pay the compensation amount but they only disputes the quantum of compensation awarded by the Deputy Commissioner of Labour, Salem.

7. The only argument advanced by the counsel for the appellant is that even though the Doctor, PW2 was examined before the Court below, who assessed the disability of the claimant at 50% for the fracture injury sustained by him in his hip, the Court below, without any legal evidence has taken the disability at 100% and passed the award. Therefore, the learned counsel for the appellant prays for interference with the award passed by the Deputy Commissioner of Labour, Salem.

8. Even though the respondents were served and their names printed in the list, there is no representation made on their behalf. I heard the learned counsel for the appellant and perused the materials on record.

9. The only argument advanced by the counsel for the appellant is that the Deputy Commissioner of Labour, Salem ought not to have taken the disability sustained by the claimant at 100% which is contrary to the evidence of the Doctor, who assessed the disability only at 50%. When we analyse the evidence of PW2, Dr. Rajamanickam, he deposed