The court clarified that the assessment of permanent disability should consider the inability to continue in the profession due to injury, warranting revision of compensation calculations.

JUDGMENT

The applicant in WCC No.33 of 1996 on the files of the Court of the Commissioner for Workmen’s Compensation (Deputy Labour Commissioner), Kottayam, has filed this appeal seeking enhancement of compensation.

2. The appellant met with an accident on 18.03.1994 while driving a jeep owned by the 1^st respondent. He sustained Type III B Open Fracture (L) leg both bone, lacerated wound over the fracture area and multiple abrasion on the forehead. Claiming that he sustained the injuries during the course of employment and the accident arose out of the employment, the applicant approached the Workmen’s Compensation Commissioner.

3. The 1^st respondent, owner of the vehicle remained exparte before the Commissioner. The 2^nd respondent, insurer entered appearance and disputed the claims by the appellant. The 2^nd respondent challenged alleged employer – employee relationship, occurrence of the accident, claim regarding disability as also the monthly wages claimed by the appellant. The appellant was examined as AW1 and the Doctor was examined as AW2. Another witness was examined as AW3 on the side of the appellant. Exts.A1 to A10 were marked on the side of the appellant. No witnesses was examined on the side of the 2^nd respondent. Exts.R1 to R3 were marked on the side of the 2^nd respondent.

4. The learned Commissioner concluded that there was employer-employee relationship and the accident occurred during the course of employment. The Commissioner found that the appellant was entitled for compensation. However, the case of the appellant that he had monthly wages of Rs.3,000/- was not accepted by the Commissioner. In view of the challenge raised by the 2^nd respondent in that connection, the Commissioner adopted an amount of Rs.750/- as the monthly wages of the appellant. Taking note of the Medical Certificate issued by an Orthopaedic Surgeon of the Taluk Headquarters Hospital, Muvatupuzha, wherein it was certified that the permanent disability of the appellant on account of the accident is 20%, the Commissioner accepted 20% as the loss of earning capacity caused on account of the accident.

5. Heard the learned counsel for the appellant and the learned counsel for the 2^nd respondent-Insurance Company.

6. The learned counsel for the appellant argued that the income adopted by the learned Commissioner for fixing the compensation was too low and that the appellant had given evidence to the effect that he drew a monthly salary of Rs.3,000/- at the time of accident. He hence submitted that the monthly income adopted by the learned Commissioner is liable to be interfered with and that the compensation shall be calculated adopting the monthly wages of the appellant as Rs.3,000/-. The learned counsel further contended that the appellant was a driver and he suffered 20% disability on account of the accident. In the nature of his employment, 20% disability deprived him of the opportunity to continue with the same avocation. Under said circumstances the Commissioner ought to have considered his loss of earning capacity at a higher rate.

7. The learned counsel for the 2^nd respondent-Insurance Company on the other hand submitted that there was no convincing evidence adduced by the appellant before the Commissioner to show his alleged monthly wages. He submitted that the learned Commissioner rightly adopted Rs.750/- as the monthly wages of the appellant as the appellant was not in a position to adduce any reliable evidence in support of his claim in this connection. He further pointed out that such a finding rendered by the learned Commissioner is not liable to be interfered with by this Court in this appeal.

8. Regarding the contention of the learned counsel for the appellant with respect to the loss of ear