THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 813 of 2011 JUDGMENT: The appeal is filed against the order dated 08.03.2004 in W.C.No.30 of 2003 granting compensation to the claimant. The application was filed for a compensation of Rs.3,50,000/- for the injuries said to have been received by the claimant in course of his employment as hamali by the 1st party and when the vehicle, which was insured with the appellant herein, was in use. The appellant herein disputed the nature of the injuries, earning capacity of the claimant and also the liability to pay the compensation. After considering the evidence on record, the lower Tribunal has come to the conclusion that the claimant is entitled to a compensation of Rs.90,921/- holding that he received injuries in course of his employment. Learned counsel for the appellant contends that the award of the lower Tribunal is bad since he has taken the disability at 40%, whereas the evidence of the doctor, who was examined by the claimant, opined that the physical disability is only 20%. The lower Tribunal did not accept the contention of the appellant that even 20% disability is not true. However, the lower Tribunal found that the claimant suffered more than 20% of the physical disability in terms of loss of earning capacity and, therefore, fixed the loss of earning capacity at 40% and accordingly granted the compensation. Evidently, it is the evidence of the doctor that has to be taken into consideration in fixing the disability. The claim of the petitioner goes to show as if there is 100% loss of earning capacity. As can be seen from the certificate issued by the doctor, there was only an injury of fracture of left clavicle, which is an old one. It does not appear that he has treated the claimant at all. Therefore, when the opinion of the doctor himself is only from the record, the efforts made by the lower Tribunal and the injury is a non-schedule injury. The only course open to the lower Tribunal is the Commissioner has to rely upon the certificate issued by the qualified medical practitioner, who opined that the disability is only 20%. No specific reasons given by the lower Tribunal to come to a different conclusion to assess the loss of earning capacity at 40%, keeping in view of the disability of 20% opined by the doctor. Therefore, in view of the above circumstances, the order dated 08.03.2004 passed by the lower Tribunal has to be set aside and accordingly, the disability is considered only at 20% and the compensation, the petitioner will be entitled, is Rs.45,460/- (Rupees forty five thousand four hundred and sixty only). Accordingly, the appeal is partly allowed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 11-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 813 of 2011 DATE: 11-08-2011 MR