THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A.No. 1035 of 2011 JUDGMENT: The appeal is filed by the insurance company against the order dated 20.01.2005 in W.C.No.6 of 2004 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Cuddapah questioning the quantum of compensation granted by the Commissioner. The claimant is said to be driver of the lorry bearing No.AP-04-T- 6120 in the employment of the 2nd respondent and on 25.06.2003 he met with an accident and suffered multiple injuries and disability. The claim for compensation of Rs.4 lakhs was made and the Commissioner after considering the evidence on record, granted a compensation of Rs.4,29,988/-. The learned counsel for the appellant contends that the assessment of the compensation by the Commissioner is not correct and the Commissioner has considered the income of the claimant as Rs.3,890.50 paise and his age was found to be about 40 years. But the loss of earning capacity was fixed at 100% relying on several judgments. In fact the claimant-driver has been assessed to permanent physical disability of 45% by the doctor. There is no evidence of the doctor to show that there was 100% total permanent disability of the claimant making him unable to do any work or to earn. The provisions of Section 4(1)(c)(ii) of the Workmen’s Compensation Act clearly lays down that in case of assessing the loss of earnings, the certificate of the medical practitioner has to be taken into consideration and the judgments of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Mubasir Ahmed[1] a n d Oriental Insurance Company Limited v. Mohd. Nasir and another[2], which clearly lays down that in the absence of the evidence of the doctor about the total disability of the claimant, the Commissioner cannot adopt the same. Therefore, in view of the above circumstances, the contentions raised by the learned counsel for the appellant has to be accepted and the disability being 45%, the loss of earning capacity can be fixed at 50% and consequently the order of compensation of the Commissioner comes to Rs.2,15,000/-. The learned counsel for the appellant also pleaded that there is no liability to pay the interest. But, however, time for 30 days was given for payment of the amount and in fact the insurance company is represented before the Commissioner and consequently if the order is not complied with, the granting of the interest by the Commissioner cannot be violated. Accordingly, the appeal is allowed in part and the compensation fixed by the Commissioner is set aside and the order of compensation is confined to Rs.2,15,000/- (Rupees two lakhs fifteen thousand only). No costs. ________________________ N.R.L.NAGESWARA RAO, J 15-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 1035 of 2011 DATE: 15-09-2011 MR [1] (2007) 2 Supreme Court Cases 349 [2] (2009) 6 Supreme Court Cases 280