THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.1037 of 2003 JUDGMENT: The appellant was engaged as Driver of lorry bearing No.AP-31V-9853 owned by the 1st respondent and insured with the 2nd respondent. On 18.08.2000 at about 12:45 am, while the vehicle was proceeding towards Kennanur in Kerala State with a load of boiled rice, an accident occurred and Crime No.133 of 2000 was registered by the S.H.O., Kengari P.S. The appellant is said to have received fracture injury to his right ankle joint in the accident. Stating that he was getting income of Rs.3,000/- per month and aged 34 years, when the accident occurred, the appellant filed W.C.Case.No.82 of 2001 before the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour-I, Guntur (for short ‘the Commissioner’) claiming a sum of Rs.3,00,000/-as compensation. He stated that he became unfit to function as Driver. The 1st respondent remained ex parte. The 2nd respondent filed counter denying the various averments made by the appellant, particularly as regards the quantum of compensation. Through order, dated 06.09.2002, the Commissioner awarded a sum of Rs.59,940/- as compensation. The appellant seeks enhancement of the same. Learned counsel for the appellant submits that though the disability suffered by the appellant was certified to be 25%, the fact that he has become unfit to function as Driver ought to have been taken into account. He contends that A.W.2, the Doctor, who certified the disability, has stated that it is difficult for the appellant to discharge the functions of Driver and in that view of the matter, the loss of earning capacity ought to have been taken at 100%. Learned counsel for the 2nd respondent on the other hand submits that the Commissioner has applied the correct parameters and that no enhancement is warranted. On behalf of the appellant, A.Ws.1 and 2 were examined and Exs.A.1 to A.6 were filed. No evidence was adduced by the respondents. The appellant suffered fracture injury to his right ankle joint. He was initially treated in Sahana Hospital, Banglore. Ex.A.2 is the prescription of the hospital. Thereafter, he was treated at G.G.H, Guntur and the documents pertaining to that hospital were filed as Exs.A.3 and A.4. A.W.2 is the Doctor, who certified that the physical disability of the appellant is 25% and that the same is permanent partial in nature. However, he stated that it would be difficult for the appellant to drive for long hours, on account of the injury. The Commissioner took the loss of earning capacity as 25%. The injury suffered by the appellant does not fit into the list occurring in the schedule appended to the Act. However, the record discloses that except that he suffered pain and suffering, there is no loss of limb or any part of the body. When the schedule itself stipulates the percentage of loss of earning capacity, on account of the loss of limb, is below 100%, the loss of earning capacity on account of fracture to ankle joint cannot be estimated at 100%. For all practical purposes, the percentage of disability is taken to be the percentage of loss of earning capacity. It is only in rare cases that there can be slight variation. Though the injures of a particular type can have the effect of total disablement of a workman to undertake the same functions, the Act generalized such instances and has provided for loss of earning capacity on account of different injuries. Even where the injury does not fall into the list occurring in the schedule, the assessment should be approximate and nearer to the one specified in the schedule. This Court is not inclined to enhance the compensation. Therefore, the C.M.A. is dismissed. There shall be no order as to costs. __________ 05.12.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.1037 of 2003 Date: 05.12.2011 JSU