THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.453 of 2005 JUDGMENT: This appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) against an order, dated 17.12.2004, passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Eluru (for short ‘the Commissioner’). 2. The first respondent-workman filed W.C.No.45 of 2004 before the Commissioner, claiming compensation of Rs.3,00,000/- on account of the injuries sustained by him during the course of employment. He pleaded that he was employed as a Cleaner of a lorry bearing No.AP-37-U-6366, owned by the third respondent, and that on 09.05.2004 at 2.00 AM while working as Cleaner on the said lorry, met with an accident and sustained multiple injuries. The nature of injuries sustained by him and the particulars of expenditure incurred by him were mentioned. The case was contested by the appellant-insurer and respondents 2 and 3-driver and owner of the crime vehicle. By the order under appeal, the Commissioner awarded a sum of Rs.2,88,603/- towards compensation payable by the appellant and respondents 2 and 3 jointly and severally by way of demand draft, within 30 days from the date of receipt of the order. Disputing the quantum of compensation, the appellant-insurer filed the present appeal. 3. Heard the learned counsel for the appellant and the learned counsel for respondent No.1. 4. Learned counsel for the appellant vehemently contended that the Commissioner erred in assessing 100% loss of earning capacity of the workman though he had sustained 50% as per the disability certificate-Ex.A5. He has drawn the attention of this Court to Section 4(c)(ii) of the Act and it reads as under: “4 (c ) Where permanent partial disablement results from the injury.—(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as it proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner permanently caused by the injury). 5. Learned counsel for respondent No.1-workman contended that as the workman was aged 30 years and was earning monthly wages at Rs.2,500/- at the time of accident, the Tribunal has taken less monthly wages at Rs.2312.75/-. 6. From a perusal of the material on record, it is evident that AW1-workman has stated that his both legs were damaged and rods were inserted and that the percentage of disability was assessed as 50% by the Medical Board as per Ex.A5, but he has not examined the doctor, who treated those injuries. Though the workman sustained 50% disability, the assessment made by the Commissioner as regards his loss of earning capacity at 100% on the ground that he cannot work as Cleaner on the vehicle as usual, cannot be sustained because as per Section 4(c)(ii) of the Act, with regard to the non-schedule injury, the criterion for assessing the compensation is as per the assessment made by a qualified medical practitioner. In the instant case, no doctor was examined to prove the alleged disability sustained by the workman, except Ex.A5, as per which, the disability sustained by the workman is 50%. 7. Since the Commissioner has taken the monthly wages of the first respondent at Rs.2,312.75 /- relying on G.O.Ms.No.30 dated 27.07.2000, the contention of the learned counsel for Workman cannot be accepted. The relevant factor as per schedule IV of the Act is 207.98. The extent of disability suffered by the first respondent shall be taken at 50%. Then, the amount of compensation comes to Rs.2,312.75X60/100X207.98X50/100= 1,44,301/-. Therefore, the compensation awarded by the Commissioner is reduced from Rs.2,88,603/- to Rs.1,44,301/-. In all other respects, the order impugned shall remain unchanged. 8. With the above modification, the Civil Miscellaneous Appeal is allowed in part. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date:05.08.2010. sj