HON’BLE SRI JUSTICE K.S.APPA RAO Civil Miscellaneous Appeal No.233 of 2008 Date: 17-6-2011 Between National Insurance Co. Ltd., Rep. by its Divisional Manager, Divisional Office, 4-68/6, Ferozguda, Secunderabad … Appellant/Opposite Party No.2 and L.Srinivas … Respondent/Applicant M/s. Venkateswara Enterprises, Plot No.614, Vivekananda Nagar Colony, Kukatpally, Hyderabad … Respondent/Opposite Party No.1 HON’BLE SRI JUSTICE K.S.APPA RAO Civil Miscellaneous Appeal No.233 of 2008 Judgment: Heard both sides. 2. The present civil miscellaneous appeal is filed against the order dated 08-01-2007 in W.C. Case No.41 of 2003 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Circle-I, Ranga Reddy district. 3. The appellant herein is the 2nd opposite party in W.C. Case No.41 of 2003. The 1st respondent-applicant filed W.C. Case No.41 of 2003 claiming compensation of Rs.7,00,000/- for the injuries sustained by him in the course of his employment. While evaluating the evidence on record, the Commissioner awarded compensation of Rs.4,51,594/- payable within 30 days from the date of receipt of the order, failing which the applicant will be entitled to receive interest at the rate of 9% per annum under law. Being aggrieved by the same, the present civil miscellaneous appeal is filed. 4. The learned Standing Counsel for the appellant-Insurance Company mainly urged on the following grounds: (i) that the Commissioner ought to have seen that the compensation to which the 1st respondent-applicant is entitled to, was already determined by the Commissioner for Workmen’s Compensation, Visakhapatnam as Rs.3,59,619/- as per his order dated 31-12-2003, that even if the appellant-Insurance Company was not a party to the order passed by the Commissioner for Workmen’s Compensation, Visakhapatnam, the insured (2nd respondent) has to pay the compensation as determined by the Commissioner for Workmen’s Compensation, Visakhapatnam to the applicant and claim the same from the Insurance Company and that whether the Commissioner is entitled to entertain the application filed by the applicant even after the compensation was already determined by the Commissioner for Workmen’s Compensation, Visakhapatnam is a substantial question of law that arises for consideration in this appeal; (ii) that the Commissioner erred in taking the minimum wage of the applicant as Rs.3,400/- per month even though he had claimed his wage as Rs.2,400/- per month and the 2nd respondent had stated that he used to pay Rs.2,700/- per month and that whether the Commissioner is competent to take higher wages than stated by the employee and the employer, respondents 1 and 2 herein, is also a substantial question of law that arises for consideration in this appeal; and (iii) that the Commissioner erred in holding the loss of earning capacity of the applicant as 100%, that she failed to see that the applicant sustained a non-scheduled injury and the disability certificate Ex.A-5 issued by P.W.2 only speaks about the physical disability and not the loss of earning capacity of the applicant and that in view of the amendment, the assessment of loss of earning capacity by a qualified medical practitioner is mandatory and failure to follow the procedure prescribed in the Statute amounts to error of law and error of jurisdiction as held by this Court in New India Assurance Co. Ltd. Vs. Sammayya and another[1]. 5. Now, the point for consideration is -- whether the order of the Commissioner is sustainable ? 6. Point:- As seen from the impugned order, the Commissioner for Workmen’s Compensation, Visakhapatnam as per the order dated 31-12-2003 awarded a compensation of Rs.3,58,619/- and the appellant-Insurance Company is not a party to the said order. However, pursuant to the said order, the insured 2nd respondent agreed to pay the said compensation and claim the same from the appellant-Insurance Company. When once the compensation was determined by the Commissioner for Workmen’s Compensation, Visakhapatnam as per the order dated 31-12-2003, the question of again determining the same on the same grounds does not arise, as rightly argued by the learned Standing Counsel for the appellant- Insurance Company. 7. Therefore, learned counsel for the 1st respondent-applicant fairly conceded to the aforesaid argument. While appreciating the gesture of the learned counsel for the applicant, this Court is inclined to determine the compensation of Rs.3,58,619/- (Rupees three lakhs, fifty eight thousand, six hundred and nineteen only) as already determined by the Commissioner for Workmen’s Compensation, Visakhapatnam earlier. 8. However, learned Standing Counsel for the appellant- Insurance Company draws the attention of this Court to the judgment i n Oriental Insurance Co. Ltd. v. Mohd. Nasir and another[2] and requested to grant interest accordingly. 9. Placing reliance on the judgment in Mohd. Nasir’s case (2 supra) and the guidelines thereunder, the award carries interest at the rate of 7.5% per annum from the date of filing of the application till the date of award and thereafter, at the rate of 9% per annum till realization. 10. In the result, the civil miscellaneous appeal is allowed in part. No costs. 11. It is needless to mention that the interest payable by the appellant-Insurance Company is only till the date of deposit. It is brought to the notice of this Court that the said deposit is already made and therefore, the interest accrued on the deposited amount goes to the benefit of the applicant. ___________________ K.S.APPA RAO, J. 17th June, 2011. Ak HON’BLE SRI JUSTICE K.S.APPA RAO Civil Miscellaneous Appeal No.233 of 2008 17th June, 2011. [1] 1995 (3) ALT 470 [2] 2010 (1) ALD 74 (SC)