THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A.NO.1156 of 2011 JUDGMENT:- The appeal is filed by the Insurance Company questioning the quantum of compensation granted in W.C.No.164 of 2004 by the Commissioner for Workmen’s Compensation, Hyderabad (for brevity “the learned Commissioner”). The claimant was said to be an auto driver and he said to have sustained an injury on 07-05-2004 while under employment with the owner of the auto rickshaw bearing No.AP 23 T 6169-first respondent and on the date of accident while he was proceeding on the auto rickshaw from Balangar to Shapur with passengers at about 1.20 P.M when he reached near HMT, an RTC Bus bearing No.AP.11 Z 2345 came in the opposite direction and dashed against him, as a result he sustained injuries. A claim was made for a sum of Rs.3 lakhs towards compensation and the learned Commissioner after considering the evidence on record came to a conclusion that the incident was due to the rash and negligent driving of the bus and while the claimant was in employment of the owner of the vehicle which was insured with the appellant. However, the learned Commissioner has taken the loss of earning capacity at 50% and granted the compensation of Rs.2,00,706/-, which is now disputed. Now the point that arises for consideration is: Whether the quantum of compensation determined by the learned Commissioner is legal and sustainable? POINT:- There is no dispute about the nature of the incident, nature of the employment and also the cause of the incident. There is also no dispute about the fact that the injuries suffered by the claimant were non- schedule injuries as defined under the Workmen’s Compensation Act. The Doctor who has treated the claimant was examined as AW.2 and issued Ex.A-3 certificate and according to him he assessed the physical disability of the claimant at 35% and he also stated that there was a fracture of Gaelezzi and stiffness of elbow and wrist and painful restricted movements of right elbow to manage and control the auto. The learned Commissioner has taken the above evidence and came to a conclusion that it cannot be expected that the claimant will be able to drive the vehicle and consequently determined the loss of earning capacity at 50%. The learned counsel for the appellant submits that this being a non- schedule injury as per Section 4(1)(C)(II) of the Workmen’s Compensation Act, the loss of earning capacity can only be assessed by the qualified medical practitioner as is proportionate to the injury. According to him, in this case, there is no opinion about the loss of earning capacity and the opinion of the Doctor is only with regard to the percentage of disability and on the other hand it is the contention of the counsel for the claimant that even if the percentage of loss of earning capacity is not known by the Doctor, the learned Commissioner taking into consideration the nature of disability has come to a conclusion about the loss of earning capacity and, therefore, it is based on the opinion of the Doctor and assessment made by the Commissioner, the assessment of loss of earning capacity cannot be said to be incorrect. It is to be mentioned that the evidence of Doctor does not show that the individual cannot drive an auto. Even if it is to be taken as a case of complete inability to drive an auto as he was driving at the time of the incident, that it can only be taken as total permanent disability due to the injury, but, in this case as against the percentage of disability of 35% opined by the Doctor, the Commissioner has taken it as 50% of loss of earning capacity. Evidently, even the Doctor did not say the loss of earning capacity and the evidence of Doctor clearly goes to show that there will be painful restricted movement of right elbow to manage and control the auto. It is not a case where the Doctor opined that he cannot drive the auto at all and, therefore, in order to come to a conclusion that the ascertainment of the loss of earning capacity as against the statutory guidelines given by the Act, there should be some other material on the side of the claimant and also the reasons to be given by the Commissioner. But, in this case, such material is wanting and the law has been fairly laid down by the Supreme Court in National Insurance Company Limited Vs. Mubasir Ahmed([1]) and Oriental Insurance Company Limited Vs. Mohd. Nasir([2]) whereunder it was held that if the opinion of the medical officer is not clear about the quantum of loss of earning capacity, the disability has to be taken into consideration. Therefore, in view of the statutory guidelines given by the Act, the inference drawn by the learned Commissioner without any basis is not proper and the above two decisions also clearly lays down the same Rule. Therefore, the loss of earning capacity has to be determined at 35% and consequently the award is modified to Rs.1,40,495/-. Accordingly, the appeal is allowed in-part. The award of the Commissioner is modified to the extent of Rs.1,40,495/- in stead of Rs.2,00,706/- as granted by the Commissioner. _______________________ N.R.L. NĀGESWARA RĀO,J 21-11-2011 TSNR [1] 2007 ACJ 845 [2] 2009 ACJ 2742