ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed is by the Insurance Company challenging the judgment and award dated 17.05.2012 passed in WC/SR No.67/2011 by the Labour Officer and Commissioner for Workmen’s Compensation, Sub-division-I Belagavi (hereinafter referred to as ‘the Trial Court’ for short) on the ground that being aggrieved by the quantum of compensation awarded, specifically the holding of 80% as permanent physical disability.

2. Also, the relationship of employer and employee between the claimant and respondent No.2, the occurrence of employment injuries out of and in the course of employment and coverage of insurance are not in dispute. The only grievance of the Insurance Company is that considering the nature of injuries sustained, the percentage of disability held at 80% by the Trial Court is on higher side. Therefore, prays for reduction of compensation by holding lesser percentage of permanent physical disability in accordance with the injuries sustained.

3. From the medical evidence on record, it is proved that the claimant had suffered following injuries: i. Comminuted, displaced fracture shaft femur-

right.

ii. Comminuted, displaced fracture intertrochanteric femur-right.

iii. Compound, comminuted, displaced fracture at middle 3^rd of shaft femur-left.

iv. Fracture lower pole of patella-right.

4. Considering the nature of injuries sustained, the compensation awarded by the Trial Court is on higher side. Therefore, it is necessary to reduce it by modifying the judgment and award.

5. Upon considering the doctor’s evidence and also disability certificate/Ex.P-10, it is proved that the claimant had suffered permanent physical disability to the extent at 50% to the right lower limb and 30% to the left lower limb. The Trial Court has committed erred in adding these percentages, resulting in a total 80% of permanent physical disability. This approach is not correct, as the addition of these two percentages should not be done arithmetically. The permanent physical disability can be assessed based on the nature of injuries sustained, the nature of job and how much the disability affects the claimant’s ability to work. All these factors must be considered while making assessment of permanent physical disability.

6. On perusal of the records, the claimant has suffered fractural injuries to both right and left lower limbs, which restricted his movement. Therefore, considering the nature of injuries sustained by the claimant and he was driver by profession. Therefore, considering the principle of law laid down by the Hon’ble Supreme Court in the case of RAJ KUMAR VS. AJAY KUMAR & ANOTHER, [(2011) 1 SCC 343], it is just and proper to take permanent physical disability at 45%.

7. The accident occurred on 20.01.2011. The Trial Court has committed an error in determining monthly wages at Rs.5,000/-, therefore, minimal wages taken at Rs.8,000/-. According to Section 4 of the Workmen’s Compensation Act, 60% of monthly wages must be considered. The claimant was aged 35 years old at the time of accident. Considering the age of the claimant, the relevant factor is 197.06. Therefore, the compensation under the head loss of earning capacity due to disability is hereby reassessed and quantified as under:

Rs.8,000/- x 60% x 197.06 x 45% = Rs.4,25,649/-

8. Therefore, the claimant is entitled for total compensation of Rs.4,25,649/- along with interest at the rate of 12% p.a. from the date of accident till realization, as against Rs.4,72,944/- awarded by the Trial Court. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

9. In the result, I proceed to pass the following:

ORDER

i. The appeal is allowed in part.

ii. The judgment and award dated

17.05.2012 passed in WC/SR No.67/2011 by the Labour Officer and Commissioner for Workmen’s Compensation, Sub-

division-I Belagavi, stands modified.

iii. The claimant is entitled for