THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A. No.1823 of 2003 JUDGMENT: The appellant filed W.C.Case No.5 of 2002 before the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Guntur (for short ‘the Commissioner’) claiming a sum of Rs.3,00,000/- as compensation for the injuries received by him in an accident that occurred on 06.02.1999. He was employed as a driver to work on a bus bearing No.AP 9U 5335, owned by respondent No.1 and insured with respondent No.2. He stated that he suffered fracture injuries to his right leg and in the course of treatment, his right leg got shortened by 2”. The particulars of treatment he has undergone were also furnished. Respondent No.1 remained ex parte. The case was resisted by respondent No.2. They denied the facts pleaded by the appellant and put him to strict proof of the same. The Commissioner awarded a sum of Rs.38,122/- by treating the disability suffered by the appellant as 10 to 15% and loss of earning capacity as 15%. The wages as provided for under the Minimum Wages Act and the age as pleaded by the appellant were taken into account. The appellant submits that the compensation ought to have been awarded by treating the loss of earning capacity as 100%. Heard Sri A.Rajendra Babu, learned counsel for the appellant and Ms.S.N.Padmini, learned Standing Counsel for respondent No.2. The plea of the appellant that he was employed with respondent No.1 is not seriously disputed, particularly when the latter remained ex parte. To prove his case, the appellant adduced oral evidence of A.Ws.1 and 2 and documentary evidence, Exs.A1 to A10. No evidence was adduced by respondent No.2 and Ex.C1 was taken on record. A.W.2, the Doctor, who examined the appellant, certified the disability at 10 to 15%. The Commissioner took the impact of that disability upon the earning capacity of the appellant at 15%. The appellant, however, pleads that he is unable to discharge the functions of driver at all and thereby, the loss of earning capacity must be taken as 100%. The divergence between the percentage of disability on the one hand and the loss of earning capacity on the other has given rise to quite a voluminous litigation under the Act. For the injuries that are mentioned in the Schedule appended to the Act, there does not exist any such divergence at all. It is only when the disability is certified by the Medical Practitioner as provided for under Section 4 of the Act that the problem arises. Recently, this Court has taken the view that the percentage of loss of earning capacity must be commensurate with the percentage of the disability. This view is supported by the judgments of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD. Vs. MOHD.NASIR[1] and SUNIL KUMAR Vs. RAM SINGH GAUD[2]. In the instant case, though the disability was certified at 10 to 15%, the Commissioner took the loss of earning capacity at 15%. The approach of the Commissioner was most reasonable and the appellant is not justified in insisting that his loss of earning capacity must be taken as 100%. Hence, the appeal is dismissed. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:08.12.2011. kdl [1] AIR 2009 SC (Supp) 1619 [2] 2008(1) ACJ 9 (SC)