THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 1028 of 2011 JUDGMENT: The appeal is filed by the insurance company against the order dated 07.01.2005 in W.C.No.136 of 2004 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad in granting compensation of Rs.2,40,848/- for the injuries said to have been received by the claimant in a motor accident. The claimant was said to have been employed by the owner of the car bearing No.AP 9 AD 2348, who is the 2nd respondent herein, on a salary of Rs.4,000/- and on 04.07.2004 he met with an accident and received multiple injuries. After considering the evidence on record, the lower Tribunal has granted a compensation of Rs.2,40,848/-. The contention of the learned counsel for the appellant is that the percentage of disability determined by the lower Tribunal is not correct, when the evidence of the doctor does not support it and, therefore, the order is liable to be modified. There is no dispute about the injuries received by the petitioner in the motor accident. In fact, the lower Tribunal has also taken into consideration the minimum wages as against the salary of Rs.4,000/- per month by the claimant. As rightly contended by the appellant, the doctor certified Ex.A-6 and the evidence of P.W.2 only shows that the petitioner has got permanent partial disability at 40%. That being so, when there is no proof of permanent disability and when the evidence of doctor or the certificate does not show any permanent loss of earning capacity or the percentage of the loss of earning capacity, the lower Tribunal was erred in fixing the loss of earnings at 60%. Therefore, keeping in view of the provisions under Section 4(1)(c)(ii) of the Workmen’s Compensation Act and also the decisions reported in National Insurance Co. Ltd. V. Mubasir Ahmed[1] a n d Oriental Insurance Co. Ltd. v. Mohd. Nasir[2], it is to be held that the loss of earning capacity of the claimant will be only at 40% and consequently the compensation for which the claimant will be entitled is Rs.1,60,565/- (Rupees one lakh sixty thousand five hundred and sixty five only). Accordingly, the order of the lower Tribunal is modified and the appeal is allowed in part. No costs. ________________________ N.R.L.NAGESWARA RAO, J 13-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A.No. 1028 of 2011 DATE: 13-09-2011 MR [1] 2007 ACJ 845 [2] 2009 ACJ 2742