THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A.NO.212 OF 2009 AND C.M.A.NO.1127 OF 2011 COMMON JUDGMENT:- Both appeals arise out of the common accident in which the driver and cleaner of DCM Van bearing No.AP 37 V 9040 said to have been received injuries. W.C.125 of 2004 relates to the claim of the cleaner for a sum of Rs.3,00,000/- for the injuries received in an accident for which C.M.A.No.212 of 2009 was filed; whereas W.C.No.126 of 2004 relates to the claim of the driver for a sum of Rs.4,00,000/- for the injuries received by him in the accident, for which C.M.A.No.1127 of 2011 was filed. The contention of the claimants that they were employed by the owner of the vehicle-DCM Van, and that on 30-06-2004 at about 5.00 A.M while they were proceeding from Hyderabad to Vijayawada and when the vehicle reached near Kothaguda bridge, an unknown vehicle came in a opposite direction and dashed the vehicle, as a result of which, they received multiple injuries. The Insurance Company has disputed the liability. After considering the rival contentions of both parties, the learned Commissioner granted a compensation of Rs.1,56,263/- to the cleaner ; and a sum of Rs.2,09,408/- to the driver. Questioning the method of ascertainment of compensation, both the appeals were filed by the Insurance Company. Now the points that arise for consideration are:- 1. Whether the loss of earnings determined by the Commissioner is according to law? 2. Whether the awards passed by the Commissioner are legal? POINTS:- There is no dispute about the factum of the accident and employment of the claimants and also the receipt of the injuries by them in the motor accident. So also the nature of the treatment undergone by them is also not in dispute. The contention of the learned counsel for the appellant is that in both the cases the Commissioner has taken the loss of earning capacity on a higher side as against the medical evidence and ignoring the provisions of Section 4(1)(C)(II) of the Workmen’s Compensation Act, 1923 and also the decisions reported in National Insurance Company Limited Vs. Mubasir Ahmed([1]) and Oriental Insurance Company Limited Vs. Mohd. Nasir([2]) whereunder it was held that if the opinion of the medical officer is not clear about the quantum of loss of earning capacity, the disability has to be taken into consideration. In this connection, in the claim application of the driver is concerned, qualified medical practitioner was examined and he has deposed that the percentage of disability is 35% but, however, the applicant was a driver of the heavy goods vehicle and because of injury, the Commissioner has assessed the loss of earning capacity as 50%. Evidently, the evidence of Doctor does not support the above factor and on the other hand, there is no material to hold that there is no possibility of taking any employment or total disability of driving the vehicle. Therefore, in view of the above circumstances, the Commissioner has erred in taking the loss of earning as 50% and only the earning capacity has to be fixed at 35%, which comes to Rs.1,45,942/-. So far as the claim of the cleaner is concerned, the evidence of Doctor clearly goes to show that the disability is only 25% but, however, the Commissioner has taken the loss of earning capacity at 50%. For the reasons stated above and there being no proof of loss of earning capacity of any nature above 20%, the method of compensation arrived at by the Commissioner is not proper and consequently the loss of earning capacity has to be determined at 25% and if 25% is applied it comes to Rs.78,131/-. Accordingly, the appeals are allowed in part. The awards of the Commissioner is modified to the extent of Rs.1,45,942/- in stead of Rs.2,09,408/- in W.C.No.126 of 2004 as granted by the Commissioner; and Rs.78,131/- in stead of Rs.1,56,263/- in W.C.No.124 of 2004 as granted by the Commissioner. _______________________ N.R.L. NĀGESWARA RĀO,J 12-09-2011 TSNR [1] 2007 ACJ 845 [2] 2009 ACJ 2742