Full Judgment
D.S.R. Varma, J.
1. This Civil Miscellaneous Appeal is directed against the order, dated 07-04-2004 in W.C. Case No. 79 of 2002, passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-1, Guntur (for short 'the Tribunal')
2. The appellant is the claimant, the first respondent is the owner of the vehicle and the second respondent is the Insurance Company.
3. For the sake of convenience, the appellant, the first respondent and the second respondent will be referred to as 'the claimant, the owner of the vehicle and the Insurance Company' respectively.
4. The undisputed facts are that the claimant was a long distance driver; that the accident took place in Maharashtra and that the vehicle in question and the owner of the vehicle belong to Andhra Pradesh. In the accident, the claimant suffered certain injuries to the elbow and shoulder joint of left hand. He claimed a total compensation of Rs. 3,00,000/-, whereas the Tribunal had awarded only a sum of Rs. 72,709/-. Hence, the present Civil Miscellaneous Appeal.
5. It is the contention of the learned counsel appearing on behalf of the claimant that the Tribunal has estimated the physical disability of the claimant as 25% and that the loss of earning capacity was also estimated as 25%.
6. In this connection, the only evidence available on record is that of the Doctor who was examined as A.W-11 and stated that the claimant was operated; that the surgery was open reduction and internal fixation of plates and screws in the shoulder and the elbow; that the nature of injury was grievous and that the fracture was united. But, however, the Doctor further stated that the restriction of shoulder joint movements is of moderate degree and that there is a restriction of left elbow movement and the extent of physical disability is 20% to 25%, which is permanent and partial.
7. It is the further contention of the learned counsel appearing on behalf of the claimant that when once the Doctor had stated that the movements of the left hand are restricted forever, the claimant, who was a professional long distance driver, cannot perform his duty in that capacity forever.
8. The learned Standing Counsel appearing on behalf of the Insurance Company contends that when it is the view of the Doctor that the claimant can do short distance driving, it cannot be treated as permanent disability.
9. The learned Standing Counsel appearing on behalf of the Insurance Company further places reliance on the provisions of Section 4(1) of the Workmen's Compensation Act and contends that it implies that the loss of earning capacity cannot be in proportionate to the physical disability.
10. The said contention cannot be accepted for the reason that the physical disability is one thing and different from the professional disability. Though the physical disability, which is apparent, is to a limited extent, the assessment of the professional capability has to be estimated in terms of the profession one does.
11. Here, admittedly the claimant was a professional long distance driver. Even as per the opinion of the Doctor, the claimant cannot be a full-fledged driver though he was declared to be fit to drive a vehicle to a short distance that too with restricted movements. When once the movements of the driver are identified and known to the public as having restricted in nature, his services in reality and in all probability would not be made use of by anyone. Therefore, the physical disability, though to a minimum extent, should always be tested in terms of the disability in the efficiency or the proficiency of a person, which is the source of one's livelihood.
12. In the instant case, the claimant, being a professional long distance driver, with restricted movements of left hand, had lost the opportunity of being a long distance driving for ever and, the likelihood of being engaged as a short distance driver is very bleak unless abundance luck dawns on him. Further, a driver would be tested by the owner only in terms of his fullest physical capability.
13. In other words, the expectation of the owner as regards the services of the claimant as a long distance driver would be invoked only when the owner is fully satisfied with his performance and his efficiency. Nobody would rather compromise with the efficiency of the driver.
14. Therefore, though the disability admittedly and as expressed by the Doctor is only to a limited extent of 25%, in terms of the physical deficiency, the actual and real deficiency or disability of the claimant in his professional career is and should be understood as 100% forever.
15. The learned Standing Counsel appearing on behalf of the Insurance Company further contends that the evidence of the Doctor is to the effect that in due course of time, the efficiency of the claimant would be improved.
16. In my view, improvement is again different from the expression 'cure'. There might be improvement to some extent and the extent of which was not indicated by the Doctor. Even if there is any improvement, may be 5% or 10%, it cannot be 100%.
17. Therefore, the said submission of the learned Standing Counsel appearing on behalf of the Insurance Company also is of not much use.
18. For the foregoing reasons and having regard to the age of the claimant, as on the date of accident, which was estimated as 50 years, and also having regard to the above reasoning, I feel it appropriate to fix total compensation at Rs. 1,00,000/- (Rupees One Lakh only) with interest at 9 per cent per annum, as fixed by the Tribunal, as just and reasonable.
19. Therefore, the claimant is entitled to a total compensation of Rs. 1,00,000/-(Rupees One Lakh only) with interest at 9% per annum.
20. The other portion of the award of the Tribunal shall remain undisturbed.
20. In the result, the Civil Miscellaneous Appeal is allowed, at the stage of admission, to the extent indicated above. However, there shall be no order as to costs.