HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO C.M.A.No.783 OF 2011 JUDGMENT: The appeal is filed by the claimant against the order in W.C.No.59 of 2002 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour at Nizamabad, questioning the quantum of compensation. 2. The claimant has filed an application for compensation for the injuries received by the petitioner in a motor accident. On 24.04.2001 at about 8.30 P.M., while the petitioner was in employment on the tractor and trailer bearing No.AP 25 E 6601 one RTC bus came in high speed and dashed against the tractor and trailer, as a result of which, the petitioner received injuries. The petitioner claimed a compensation of Rs.2,20,000/- and claimed earning of Rs.5,000/- per month. After considering the material on record, the Commissioner has granted a compensation of Rs.1,17,974/- treating the wages of the petitioner as Rs.2,000/- and directed the amount to be deposited within 30 days. Aggrieved by the quantum of compensation being not proper the appeal is filed. 3. The learned counsel for the appellant contends that the Commissioner should have taken into consideration the earning capacity as pleaded by the appellant and also should have considered that he is entitled for interest at 12% per annum and the disability fixed by the Commissioner is also not valid. The main contention of the appellant is that he was drawing a salary of Rs.5,000/- per month and batta at Rs.50/- per day and this is also admitted by the owner of the vehicle and therefore, the Commissioner should have taken the maximum permissible amount at Rs.4,000/- under the statute. On the other hand, the learned counsel for the Insurance company contends that there is no proof of the income and without proof of the actual income mere filing of the statement by the owner is not sufficient. In this connection, it is useful to refer to a decision reported in United India Insurance Co. Ltd., Vs. Vaggu Balram and others[1], wherein it was held that without proof of payment by any documentary evidence even in spite of oral statement given by the employer, the Court held that such a statement cannot be taken into consideration. Therefore, the lower Tribunal has rightly ignored the claim of earning capacity of the petitioner at Rs.5,000/- per month. 4. So far as the disability is concerned, evidently it is a non- schedule injury. As per the evidence of the doctor with regard to disability, the loss of earning capacity has to be taken into consideration. However, in this case, the doctor has opined that the loss of earning capacity is 65% and also deposed that the loss of earning capacity is 65%. The learned counsel for the appellant contends that there is total disability and the Commissioner should have taken into consideration the above fact. He relied on a decision reported in Maghar Singh Vs. Jashwant Singh[2]. On the other hand, the learned counsel for the Insurance Company has relied upon the decisions reported in Oriental Insurance Company Limited Vs. Mohd. Nasir and another[3] and National Insurance Co., Ltd Vs. Mubasir Ahmed and another[4], wherein it has been specifically mentioned that the opinion of the doctor with regard to the loss of earning capacity is relevant under Section 4(1) (c)(ii) of the Workmen’s Compensation Act and in the absence of such evidence, no total disability can be inferred by mere fact of permanent functional disability. Therefore, the Court has to take into consideration the evidence of the doctor and in this case though the doctor has opined that the loss of earning capacity is 65%, the Commissioner has taken only 45%. This is against the law laid down by the Supreme Court as referred to and relied on by the counsel for the respondent and also under the provisions of Section 4(1)(c)(ii) of Workmen’s Compensation Act. Hence after taking the disability at 65%, the total compensation comes to Rs.1,70,407/- (2,000 x 60/100 x 218.47 x 65/100). 5. The learned counsel for the appellant strongly contended that the Commissioner has not granted the interest from the date of accident and he relied on a decision reported in Pratap Narain Singh Deo Vs. Srinivas Sabata and another[5]. Though the earlier decisions were referred by the counsel for the appellant, the decision reported in National Insurance Co., Ltd., Vs. Mubasir Ahmed and another (4th cited above), answers this point in Para No.9, which is as follows: “9. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh, 1997 ACJ 517 (SC). By Amending Act, 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest at the rate of 12 per cent. In the instant case, the accident took place after the amendment and, therefore, the rate of 12 per cent as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously, it cannot be the date of accident. Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is ‘falls due’. Significantly, legislature has not used the expression ‘from the date of accident’. Unless there is an adjudication, the question of an amount falling due does not arise”. Therefore, in view of the above circumstances and in view of the Judgment of the Hon’ble Supreme Court, the appellant cannot claim interest from the date of accident and it can only be from the date of default in payment of the amount within 30 days as ordered by the Commissioner. Therefore, in case the amount has not been paid by the Insurance Company, the interest shall be paid at 12% per annum and the enhanced amount shall also be deposited within 30 days from this date, failing which, the interest shall be paid at 12%. With the above modification, the award of the lower Tribunal is confirmed. 6. In the result, the appeal is allowed in part enhancing the compensation to Rs.1,70,407/- instead of Rs.1,17,974/- as granted by the Commissioner. No costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:27.09.2011 INL [1] 2005 ACJ 1384 [2] (1998) 9 Supreme Court Cases 134 [3] (2009) 6 Supreme Court Cases 280 [4] (2007) 2 Supreme Court Cases 349 [5] (1976) 1 Supreme Court Cases 289