HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL MISCELLANEOUS APPEL NO.1049 OF 2011 JUDGMENT: The appeal is filed against the order in W.C.No.11 of 2002 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Tirupati, questioning the quantum of compensation. 2. The appellant herein is the applicant before the lower Tribunal. It is stated that he received injuries while he was in employment of lorry bearing No.AP 12 T 2349 on 17.04.1999 at about 1:30 AM. The 1st respondent is owner and the 2nd respondent is insurer of the offending lorry. The 1st respondent remained ex parte. The 2nd respondent filed a counter denying the averments in the petition and putting the petitioner to strict proof of rashness and negligence on the part of the driver of the vehicle, nature of injuries received by the petitioner and also the expenditure incurred by him. The lower Tribunal has considered the contentions of the applicant and also the insurance company, granted compensation of Rs.1,81,197/-. Not satisfying with the quantum, the present appeal is filed. 3. The point for consideration is whether the appellant is entitled to compensation treating the disability as 100% and the earning capacity on the date of the order rather than the date of the accident. 4. POINT: The lower Tribunal has taken into consideration Ex.A.5, the disability certificate, showing the disability as 70%. The appellant had not examined the Doctor who treated him. Therefore, it is not open for the appellant to contend that taking into consideration the nature of the injuries and the nature of the disability, the loss of earning capacity should be taken as 100%. He relied on a decision reported in PRATAP NARAIN SINGH DEO V. SHRINIVAS SABATA AND ANOTHER[1] and NEW INDIA ASSURANCE CO.LTD. V. ABDUL SATTAR KHAN AND OTHERS[2]. 5. Evidently the injuries said to have been received by the appellant are unscheduled injuries and as per the provisions of Section 4(1)(c)(ii) of the Workmen’s Compensation Act, it is necessary that a qualified medical practitioner should certify loss of earning capacity. In this case, the disability was taken as 70%. There is no certificate of loss of earning capacity. In this connection it is useful to refer to the decisions reported in Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and another[3] AND National Insurance Co. Ltd. Vs. Mubasir Ahmed and another[4]. In the absence of such evidence, the appellant cannot contend that 100% disability is to be taken into consideration. Therefore, the lower Tribunal has rightly determined the loss of earning capacity. 6. So far as the determination of wages is concerned, the learned counsel for the appellant relied on a decision reported in SIDDABATTULA SIVANNARAYANA V. CHUKKAPALLI SAMBASIVA RAO AND ANOTHER[5] and so far as interest is concerned, he relied on a decision reported in AJYA V. BALWAN SINGH AND ANOTHER[6]. The above decisions have no application in view of the judgment of the Apex Court reported in KERALA SATATE ELECTRICITY BOARD V. VALSALA K.AND ANOTHER[7], wherein it was held that the earnings of the injured have to be taken on the date of the accident, but not subsequent dates. 7. So also for grant of interest from the date of incident is concerned, he relied on a decision ( 4 SUPRA). It has to be held that from the date of award only the interest is payable. Therefore, in view of the circumstances, there are no merits in the appeal and the appeal is liable to be dismissed. 8. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ___________________________________ JUSTICE N.R.L. NAGESWARA RAO NOVEMBER 01, 2011 YVL IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL MISCELLANEOUOS APPEAL NO.1049 OF 2011 Between: P.Venkataiah ... APPELLANT AND P.Malakondaiah and another. ...RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL MISCELLANEOUOS APPEAL NO.1049 OF 2011 01.11.2011 YVL [1] 1976 ACJ 141 [2] 2011 ACJ 403 [3] 2009 ACJ 2742 [4] 2007 ACJ 845 [5] 2011 ACJ 1425 [6] 2011 ACJ 1039 [7] (1999) 8 Supreme Court Cases 254