THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.1218 of 2009 JUDGMENT: This appeal is directed against the order, dated 21.10.2009, in W.C.No.35 of 2009 on the file of the learned Commissioner, Workmen’s Compensation and the Assistant Commissioner of Labour Circle IV, Hyderabad, wherein the claim of the 1st respondent herein, was allowed in part awarding compensation of Rs3,49,123/-. 2. Heard both sides. Perused the record. 3. 1st respondent herein filed the claim application, seeking compensation of Rs.4,00,000/- for the injuries sustained by him in a motor accident that occurred on 15.02.2009 during the course of his employment as driver of DCM van bearing No. AP09 T-4572 belonging to the 2nd respondent herein. 4 During enquiry, claimant was examined as A.W.1 and Dr.Subhash Rao, who treated the claimant, was examined as A.W.2. Exs.A1 to A11 were marked on behalf of the applicant. No oral evidence was adduced, but Ex.B1-copy of the policy was marked on behalf of the respondents. 5. On a consideration of the evidence available on record, the learned Commissioner awarded a total compensation of Rs.3,49,123/-. Aggrieved by the same, the insurer filed the present appeal. The only contention raised by the applicant is that though as per the disability certificate-Ex.A6, claimant sustained physical disability to an extent of 40%, the learned Commissioner has erroneously taken the same as 70% and awarded higher compensation. 6. It is not disputed that the 1st respondent herein was employed as driver of the 2nd respondent and he sustained injuries, in the course of such employment, in the accident that occurred on 15.02.2009. As per the medical evidence available on record, particularly the testimony of A.W.2; the wound certificate-Ex.A3; and discharge card-Ex.A5, the applicant sustained multiple grievous injuries to his left leg knee joint and he was taken to the Government hospital, Tandar and from there shifted to Sri Venkateshwar hospital, Karmanghat. The evidence on record also shows that the applicant underwent surgery to the left leg on 16.02.2009 and 18.02.2009 and he was discharged from the hospital on 02.03.2009. 7. The medical evidence on record shows that the claimant sustained commuted fracture of upper end of left tibia and fracture of neck of the left fibula. A.W.2-doctor, who examined the applicant and issued the disability certificate-Ex.A6, testified that the injuries suffered by the applicant have resulted in partial permanent disability to the extent of 40% and loss of earning capacity on account of the said disability of 70%. Thus, as per the medical evidence on record, though the physical disability is only 40%, the loss of earning capacity is 70%. It is also in the evidence of A.W.1 that there has been mal-union of the fracture bone resulting in limping and painful movement and the applicant cannot sit or squat and as a driver he cannot work. It is well established that the extent of physical disability and loss of earning capacity need not be coextensive. There can be lesser amount of physical disability which results in loss of earning capacity to a higher extent. 8. When once the competent medical officer has duly estimated the loss of earning capacity on account of the physical disability resulting from the employment injury and the evidence on record, oral and documentary, establishes such an assessment of loss of earning capacity made by the medical officer, the learned Commissioner is justified in estimating the compensation based on the loss of earning capacity. The compensation is awarded on account of the loss of earning capacity that has resulted from the injuries sustained in the accident which occurred in the course of employment. The extent of loss of earning capacity is therefore the major criterion to be taken into consideration while estimating the amount of compensation payable. The impugned order, estimating the compensation based on the loss of earning capacity of 70% which is duly established by the medical evidence of A.W.2 coupled with Ex.A6-disability certificate, does not therefore call for any interference. 9. The contention of the applicant that because the physical disability is stated to be only 40%, the loss of earning capacity also should be confined to the same limit is untenable. In the circumstances, it is held that there are no merits in the appeal. 10. In the result, appeal is dismissed. _______________________ G.V.SEETHAPATHY, J 12th October, 2011 Tsy