HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO C.M.A.No.1125 of 2011 JUDGMENT: The appeal is filed by the Insurance Company against the order in W.C.No.11 of 2005 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad, questioning the quantum of compensation. 2. A claim was made by the applicant before the Commissioner for grant of compensation of Rs.5,00,000/- for the injuries said to have been received by him during the course of employment. 3. According to the case of the petitioner, on 04.07.2003 when he was proceeding on the lorry bearing No.AAG 9240 as a driver from Siddipet, and reached near Duddeda village, he lost control over the lorry and dashed against the road side tree, as a result of which, he received multiple injuries. The claimant claimed 100% loss of earning capacity. The Insurance Company has contested the liability and also the disability as claimed by the petitioner. After considering the evidence on record, the Commissioner has arrived at the compensation of Rs.3,29,788/-. Aggrieved by the said order, the present appeal is filed. 4. The point for consideration is whether the method adopted by the Commissioner in arriving at the compensation is legal and sustainable? 5. POINT: The learned counsel for the appellant contends that the doctor, who treated the petitioner, was not examined and on the other hand, another person, who is said to have given the disability certificate, was examined and the disability certificate also discloses only 35% of disability. Keeping in view the provisions under Section 4(1)(c)(ii) of the Workmen’s Compensation Act, it should be basis for determination of the loss of earning capacity. There is no other evidence about the 75% of loss of earning capacity as determined by the Commissioner and consequently, the award is against the statutory provisions. In this case, it is useful to refer to the decisions reported in Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and another[1] AND National Insurance Co. Ltd. Vs. Mubasir Ahmed and another[2]. As per the above decisions, it is necessary that the doctor, who gave the certificate, should also say what is the loss of earning capacity. In the absence of any such evidence, the loss of earning capacity is the percentage of the disability that has been caused to the workmen by applying the above decisions. In this case there being no evidence to prove the 75% disability as determined by the Commissioner, hence the award suffers from infirmity. Taking into consideration the disability at 35%, petitioner is entitled to a compensation of Rs.1,53,897/-. Accordingly, the award is modified and the appeal is allowed in part. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:14.10.2011 INL [1] 2009 ACJ 2742 [2] 2007 ACJ 845