HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO C.M.A. No.1030 OF 2011 JUDGMENT: The appeal is filed against the award in W.C.No.12 of 2004 on the file of the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour-III, Hyderabad. 2. A claim for compensation of Rs.3,50,000/- was made for the injuries received by the applicant in a motor accident. 3. The claim of the applicant is that he was a driver on the lorry bearing No.AAP 4419 belonged to the 2nd opposite party and it met with an accident on 20.12.2002. He was earlier employed by the 1st opposite party and while he was proceeding from Peddakaparthy, parked the vehicle on the left side of the road and attending to the repairs. At that time, one RTC bus bearing No.AP 10 Z 8714 came in high speed and dashed against the lorry, as a result of which, he received multiple injuries, suffered disability and lost his earnings. He was paid a sum of Rs.3,500/- per month as wages. The 1st opposite party remained ex parte. The 2nd opposite party admitted the employment of the driver and also the nature of the incident and claimed that he was paying a sum of Rs.2,500/- per month as wages. The 3rd opposite party, who is the appellant herein, contended that the applicant is to put strict proof of the nature of the incident and there is no employer and employee relationship with the applicant and in substance it was pleaded that the policy does not cover the risk of the applicant and therefore, the claim for compensation is not sustainable. After considering the evidence on record, the Commissioner has determined the salary of the applicant based on the minimum wages and took the disability as 100% and granted the compensation of Rs.3,78,690/-. 4. The point for consideration is whether the quantum of compensation granted by the Commissioner is excessive and the appellant is not liable to pay the same ? 5. POINT: The question of law sought to be canvassed before this Court is whether there is employer and employee relationship covering the risk and whether the Commissioner was right in taking loss of earning capacity at 100% when the disability is only 30%. So far as the nature of the incident and nature of injuries received by the claimant are concerned, they are not disputable. As contended by the counsel for the appellant, the doctor has assessed the disability at 25%, but, however, the loss of earning capacity was determined as 100% because according to him, free movement of the shoulder is necessary for driving and in the present case, there is restriction of the movement of the shoulder and he also stated so in Ex.A.4 certificate. Under Section 4(1)(c)(ii) of the Workmen’s Compensation Act, the loss of earning capacity is concerned, it should be based on the evidence of the qualified medical practitioner. It is to be noted that the percentage of disability and loss of earning capacity may not be the same at all times. But, however, in this case, the doctor, who was examined on behalf of the claimant, has specifically stated that he is of the opinion that there was 100% disability because of the restricted movements of the shoulders, which causes inconvenience to the driver of the vehicle. Therefore, it is quite clear that the evidence of the doctor supports the claim of loss of total earning capacity. This being a question of fact itself has been accepted by the Commissioner and also supported by the evidence of the doctor, it is difficult to disturb the above finding. 6. The contention of the learned counsel for the appellant is that the vehicle was registered in the name of the 2nd opposite party by the date of Ex.A.5 and the permit of the vehicle was also on his name. But, however, the policy was issued in favour of the 1st opposite party. There is no dispute about the fact that by the date of accident, the policy was existing. The policy was evidently in the name of the 1st opposite party and there was no transfer of the same by intimation to the appellant and consequently, it was sought to be contended that there is no relationship of employer and employee and the risk is not covered. On this aspect, the leaned counsel for the respondent relied on the following decisions: 1) National Insurance Co., Ltd., Secunderabad Vs. K.Yadamma and others[1]. 2) Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others[2]. 3) United India Insurance Co.Ltd. Vs. M.Periyasamy and another[3]. Apart from it, it has been fairly settled that the insurance occurs with the vehicle and the Insurance Company cannot escape liability merely because of non-information. Therefore, in view of the above circumstances, I find no grounds to interfere with the award of the lower Tribunal. Accordingly, the appeal is dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:30.12.2011 INL [1] 2005(3) ALD 643 [2] (2011) 8 Supreme Court Cases 142 [3] 2010 ACJ 300