THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 1029 of 2011 JUDGMENT: The appeal is filed by the insurance company against the order dated 16.02.2005 in W.C.No.214 of 2003 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-II at Hyderabad questioning the determination of the quantum of compensation. The applicant has claimed a compensation of Rs.3,00,000/- for the injuries said to have been received by him in course of employment of the 2nd respondent herein as a cleaner. The factum of the employment of the claimant and also the nature of the incident are not seriously disputed. However, the learned counsel for the appellant contends that the evidence of P.W.2, who was examined by the claimant shows that the disability is only at 50%, whereas, the evidence of R.W.1, who was examined on behalf of the appellant, shows that the disability is only at 35% to 40% but the Commissioner has taken total loss of earning capacity and consequently fixed the total disability at 100% and granted the compensation of more than what was claimed by the claimant. Evidently, the injury is a non-schedule injury and under Section 4(1)(c)(ii) of the Workmen’s Compensation Act, the opinion of the doctor about the disability and also the percentage of loss of earning capacity are relevant facts to be taken into consideration. There cannot be any dispute about the proposition of law in view of the judgments reported National Insurance Co. Ltd. V. Mubasir Ahmed[1] and Oriental Insurance Co. Ltd. v. Mohd. Nasir[2]. The other decisions relied on by the Commissioner have no application in view of the above settled law. In this case, the opinion of P.W.2 shows that the disability is at 50% whereas the evidence adduced on behalf of the respondents shows about 35% to 40%. Therefore, taking into consideration the evidence of P.W.2 and R.W.1, the loss of earning capacity of the claimant is fixed at 50% and the compensation, therefore, comes to Rs.1,67,247/-. The claimant will be entitled to Rs.1,67,247/- (Rupees one lakh sixty seven thousand two hundred and forty seven only). Accordingly, the appeal is allowed in part. No costs. ________________________ N.R.L.NAGESWARA RAO, J 13-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A.No. 1029 of 2011 DATE: 13-09-2011 MR [1] 2007 ACJ 845 [2] 2009 ACJ 2742