HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO C.M.A.No.733 OF 2011 JUDGMENT: The appeal is filed by the applicant aggrieved by the order of the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour-I Circle, Guntur, passed in O.P.No.77 of 2001, questioning the quantum of compensation. 2. The applicant is said to have received injuries in a motor accident while he was working as a driver of the lorry bearing No.AP 28T 5499, which belongs to the 1st respondent. On 18/19.05.2001 when the applicant was driving the vehicle from Chilakaluripet side, dashed against the stationed lorry, as a result of which, he received multiple injuries and was treated in the hospital. The Tribunal after considering the evidence on record came to the conclusion that the applicant received multiple injuries during the course of employment and that as there is no proof of the actual earnings, has taken minimum wages and determined the age of the applicant as 35 years and relying on the evidence of the doctor, who has assessed the physical disability at 35 to 40%, granted compensation of Rs.15,046/-. 3. The learned counsel for the appellant contends that the order of the Commissioner in not taking into consideration 100% of loss of earning capacity of the appellant is erroneous and the disability fixed at 40% is incorrect. The doctor was examined as witness and according to him, the applicant received a fracture and shaft of femur left side and P.O.P. was applied and he was discharged after 11 days. According to him, the patient was not able to walk at present as the fracture was not united when he gave the evidence on 21.12.2001. His evidence also shows that he cannot work as a lorry driver at present and gave the opinion that the disability is 35% to 40%. His evidence does not show that the disability is permanent and total without having any course of employment in future for the appellant preventing him from taking any of the job. Evidently, under Section 4(1) (c) of the Workmen’s Compensation Act, 1923 (for short, ‘the Act’) in case of non-schedule I injuries the disability has to be determined by the doctor and from that only the loss of earning capacity has to be assessed. 4. The learned counsel for the appellant has relied on several decisions about the determination of the disability and loss of earnings. In the decision reported in Pamarthi Subba Rao V. H.Rama Rao and another[1], it was held that even if the injuries suffered are not mentioned in schedule I, if 100% disability to do work, which was earlier doing, it can be taken into consideration. But, the facts in this case does not prove that. The evidence of the doctor only shows that at present i.e., at the time of his giving evidence, he could not drive the vehicle. It does not mean that he could not do any work nor he could not do the earlier work, which was doing. Therefore, in view of the above circumstances, the above judgment, which was strongly relied upon by the counsel for the appellant cannot be taken into consideration. In fact, the law on this point was considered by the Hon’ble Supreme Court in Oriental Insurance Co., Ltd. V. Mohd. Nasir and another[2], wherein it was held that the opinion of the doctor does not support the factum of total permanent disability, the loss of earning capacity cannot be determined so. So also in National Insurance Co. Ltd. V. Mubasir Ahmed and another[3], it was held by applying the provisions of Section 4-A at para No.7, it was specifically found that the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in schedule I. Therefore, if the above facts are taken into consideration the evidence of the doctor does not in any way establish 100% disability of loss of earnings of the appellant and therefore, the claim of the appellant cannot be considered and there are no merits in the appeal. Accordingly, the appeal is dismissed. There shall be no order as to costs. _________________________ N.R.L. NAGESWARA RAO, J Date:20.08.2011 INL [1] 2008(3) ALD 650 (DB) [2] 2009 ACJ 2742 [3] 2007 ACJ 845