THE HON’BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No.2360 of 2004 JUDGMENT: This appeal is directed against the order, dated 26.05.2004, passed by the Commissioner for the Workmen’s Compensation and the Assistant Commissioner of Labour, Nizamabad (for short ‘the Commissioner’) in W.C.No.65 of 2003, wherein and whereby a sum of Rs.1,12,309/- was awarded as compensation for the injuries suffered by the appellant in the accident that occurred on 18.12.2002, out of and during the course of his employment. The brief facts of the case which led to filing of W.C. before the Commissioner are that on 18.12.2002, the petitioner along with five other labourers, was traveling on the lorry bearing No.HGV TATA AP 25-T 2661 from Yamcha to Nizamabad through Navipet after loading moram and when the vehicle reached the limits of Fkeerabad at about 4 pm., the driver of the lorry to escape from the cattle coming in the opposite direction, applied sudden brakes due to which he lost control over the vehicle and it dashed an under repair culvert and turned turtle, as a result of which, the appellant received fractures on both legs, injuries on both knees, right shoulder, backbone, both legs and on other parts of the body. Hence, the claim petition before the Commissioner. Before the Commissioner, on behalf of the appellant, P.Ws.1 and 2 were examined and Exs.A-1 to A-11 were marked. On behalf of the insurer, R.Ws.1 and 2 were examined and Exs.B-1 to B-4 were marked. The Commissioner after taking into account the entire evidence, both oral and documentary, on record held that the appellant sustained injuries during the course of his employment in the said lorry and awarded the compensation, as stated supra. Learned counsel for the appellant drawn attention of this Court to Section 4 (c) (ii) of the Workmen’s Compensation Act, 1923 and contended that the Commissioner went wrong in assessing the compensation. Per contra, learned Standing Counsel for the insurer- second respondent contended that the injuries sustained by the appellant are non-schedule injuries; that the disability certificate-Ex.A-7 issued by P.W-2-doctor is nine months after the said accident, as such much credence cannot be given to the same. The point to be determined in this appeal whether the compensation awarded by the Commissioner is just and reasonable. Adverting to the contentions of the learned counsel appearing on either side, this Court perused the impugned order and other relevant material on record. As regards the income of the appellant, R.W-1, who is the owner of the offending lorry, stated that she paid Rs.4,400/- as wages to the appellant, who was working as a labourer on the said lorry, apart from daily batta of Rs.50/-. She further stated that after the said accident, the appellant is not attending the duties. Whereas, the case of the appellant is that he was being paid Rs.5,500/- per month as wages. In the absence of any evidence to support the case of either of the parties, I am of the view that it would be appropriate to take the income of the appellant at Rs.3,000/- per month. Further, P.W-2-docotor issued Ex.A-7-disability certificate to the effect that the appellant suffered 70% permanent partial disability and assessed the loss of earning capacity at 70%. Thus, taking the wages of the appellant as Rs.3,000/- per month, 70% as the loss of earning capacity, and applying the relevant age factor ‘207.98’, the appellant is entitled to compensation as per the following calculation: - 60% of the Monthly wages x relevant factor x loss of earning capacity i.e., 60/100 x 3,000 x 207.98 x 70/100, which comes to Rs.2,62,054/-. Accordingly, the appeal is allowed in part, granting compensation of Rs.2,62,054/- to the appellant i.e., the compensation of Rs.1,12,309/- awarded by the Commission is enhanced to Rs.2,62,054/- and the enhanced compensation shall carry interest at the rate of 7% per annum from the date of filing of the said W.C. till the date of realization. However, there shall be no order as to costs. ______________________________ JUSTICE GHULAM MOHAMMED 09th December 2010 dr