Elipe Dharma Rao, J.@mdashThese two Civil Miscellaneous Appeals were preferred by the Oriental Insurance Company Limited, Vijayawada,
aggrieved by the orders dated March 22, 1993 passed by the Commissioner for Workmen''s Compensation, Nalgonda, in W.C.No. 43 of 1992
filed by Koningi Kondal, Driver on the lorry bearing No. AIK 3186 belonging to the second respondent herein and W.C. No. 27 of 1992 filed by
Bajaru Govinda Rao, Cleaner on the said lorry, whereby the Commissioner for Workmen''s Compensation has awarded a sum of Rs. 98,530/-
and Rs. 70,495.75 respectively for the injuries sustained by them in a motor vehicle accident, which occurred during the course of employment
with the second respondent herein, on April 1, 1991 while the vehicle was proceeding from Kodad to Nalgonda Market with a load of paddy and
when it reached near Dandempalli Bus stage it turned turtle, as a result of which the 1st respondent in both the appeals sustained fractures and
injuries.
2. In both these appeals, the Commissioner has included batta paid to the workmen in the salary, holding that batta is also a part and parcel of the
salary and converted the percentage of disability as total disability and awarded compensation. Questioning the above two findings of the
Commissioner, the present appeals are filed.
3. The learned counsel for the appellants in both the CMAs contended that the Commissioner has converted partial disability into cent per cent
disability and determined the salary of the workman including batta paid and granted compensation. He further contended that so far as the
conversion of partial disability into 100% disability is concerned, this Court in New India Assurance Co. Ltd. Vs. Sammayya M. Shankar
(Workman) and Another, has held that only the disability certificate produced is not sufficient to compute compensation. He further contended that
the respondent-workman has to examine the doctor who issued the certificate.
4. He further relied on a decision of this Court in National Insurance Company Limited v. Mohd. Mujataba Khan and Anr. 1994-I-LLJ-259 (AP)
and contended that the Commissioner for Workmen''s Compensation has erred in including the batta in the wages of the workman for calculating
the compensation. Arguing so, he sought interference of this Court.
5. To appreciate the contentions raised by the learned Counsel for the appellant, I have gone through the facts and circumstances of the case.
6. It is evident that the doctor who issued disability certificate was not examined, therefore, I have no hesitation in holding that unless the doctor
who issued disability certificate is examined, the said document cannot be taken judicial notice. That apart, when the workman has failed to
establish that he was unable to do the work as he was doing prior to the occurrence of the accident due to the injuries sustained in the accident, the
permanent partial disability cannot be converted into cent per cent disablement and award the compensation.
7. It is also settled principle of law that batta paid to the workman cannot be included in the wages in computing the compensation, inasmuch as the
amount is paid to cover any special expenses incurred by him due to the nature of his employment. Therefore, following the above two decisions of
this Court, the orders passed by the Commissioner are liable to be set aside and are accordingly set aside.
8. In C.M.A.No. 748 of 1993 (W.C.No. 43 of 1992) the Commissioner has converted 25% disability into 100% disability and assessed the
wages of the workman at Rs. 1000/- inclusive of batta. Therefore, having regard to the decisions of this Court, I hold that the compensation has to
be re-assessed taking the wage of the workman as Rs. 800/- and disability as 25% only. It is not disputed that the workman was aged 35 years at
the time of accident. Therefore, the total compensation payable to the claimant comes to Rs. 19,900/-. Accordingly the order of the Commissioner
is modified reducing the compensation from Rs. 98,530/- to Rs. 19,900/-.
9. Coming to the C.M.A.No. 750 of 1993 (W.C.No. 27 of 1992), the Commissioner has converted 40% disability into 100% disability and
assessed the wages of the workman at Rs. 650/- inclusive of batta of Rs. 10/- per day. Therefore, having regard to the decisions of this Court, I
hold that the compensation has to be re-assessed taking the wage of the workman as Rs. 500/- and disability as 40% only. It is not disputed that
the workman was aged 25 years at the time of accident. Therefore, the total compensation payable to the claimant comes to Rs. 21,691/-.
Accordingly the order of the Commissioner is modified reducing the compensation from Rs. 98,530/- to Rs. 21,691/-.
10. In the result, both, the appeals are partly allowed reducing the compensation as indicated above. No costs.