HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO C.M.A.No.853 OF 2011 JUDGMENT: The appeal is filed against the order in W.C.No.27 of 2004 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I at Hyderabad. 2. The insurance company filed the appeal challenging the award of compensation of Rs.4,24,733/-. The claimant was said to be a driver of the Eicher Van bearing No.AP 28 U 5161, which was said to be involved in an accident and the claimant suffered injuries, which was causing disability. The vehicle was insured with the appellant and the claim was made for Rs.3,00,000/-. During the course of enquiry, the claimant examined A.Ws.1 and 2 and marked Exs.A.1 to A.15. After considering the evidence, the learned Commissioner found that the incident was in course of employment, the evidence of AW.1 was taken into consideration and according to his evidence, the disability was assessed at 45% and it was opined by the doctor that the individual cannot be able to sit and squat without the help of walker and that the applicant cannot drive the vehicle. Therefore the learned Commissioner has taken the loss of earning capacity as 100% and consequently the award was passed more than the amount claimed. 2. The contention of the learned counsel for the appellant is that the lower Tribunal has not properly considered the evidence of AW.2 and in fact, this being a non-schedule injury, in order to determine the loss of earning capacity, the evidence of the doctor has to be taken into consideration keeping in view the provisions of Section 4(1)(c)(ii) of the Workmen’s Compensation Act, 1923 (for short, ‘the Act’). Evidently, in this case, the evidence of the doctor does not show that the individual has got 100% total disability of earning capacity. Merely because there is a total disability of the movement of the limbs, it does not mean that the total earning capacity is lost. Further-more, the injury is a non-schedule injury. Therefore, in view of the above circumstances, the opinion of the doctor is only guide. As can be seen from the provisions of Section 4(1)(c)(ii) of the Act, that being so the reasons given by the Commissioner to consider the disability as a total disability of 100% and to arrive at the compensation is not proper. In this connection, it is useful to refer to the decisions reported in National Insurance Co. Ltd. V. Mubasir Ahmed and another[1] and Oriental Insurance Co., Ltd. V. Mohd. Nasir and another[2], for determination of the loss of earning capacity of an individual. 3. Therefore, taking into consideration the above facts, the award passed by the Commissioner suffers from infirmity and therefore, only 45% of disability has to be taken into consideration. But, however, the fact remains that the opinion of the doctor shows that the driving capacity of the individual has been ‘0’, he can only take up other employment. Taking into consideration the above circumstances, I feel that the ends of justice would meet if the compensation is confined to Rs.3,00,000/-, which was claimed in the petition instead of the calculations made by the Commissioner. 4. Accordingly, the appeal is allowed and the award of the Commissioner is confined to a sum of Rs.3,00,000/-. There shall be no order as to costs. _________________________ N.R.L. NAGESWARA RAO, J Date: 23.08.2011 INL [1] 2007 ACJ 845 [2] 2009 ACJ 2742