· THE HON’BLE SRI JUSTICE GHULAM MOHAMMED + C.M.A.No. 685 of 2004 % Dated 19.08.2010 # United India Insurance Co.Ltd. …. Appellant Vs. $ Sri V. Sudarshan & another ….Respondents ! Counsel for the appellant : Sri G.Purushotham Rao ^ Counsel for the respondents : <GIST: > HEAD NOTE: ? Cases referred 1995(3) ALT 470 2005(1) ALD 380 THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No. 685 of 2004 J U D G M E N T: This is an appeal filed by the Insurance Company under Section 30(1)(a) of the Workmen’s Compensation Act, 1923 (for short, ‘the Act’) challenging the order dated 27.08.2003 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour- IV, Hyderabad in W.C.No. 116 of 2002. The facts of the case, in brief, are that the 1st respondent herein filed the above said W.C., claiming compensation for the injuries sustained by him during the course of employment as a driver on an auto bearing Reg.No. AP13U 9614 belonging to the 2nd respondent, insured with the appellant herein, on 10.07.2002 at about 08.30 p.m. when he was proceeding from Hydershakot towards Aramaisamma. He was hit by one APSRTC bus bearing No. AP 10 Z 3647. The claim of the 1st respondent is that at the time of accident, he was paid Rs.4,000/- per month and he was aged about 22 years and therefore, he sought Rs.5 lacs as compensation. The Insurance company filed its counter, denying its liability. On the other hand, it is stated that the W.C. is not maintainable for mis- joinder of parties. The injured ought to have impleaded the APSRTC as party. During the course of trial, the 1st respondent examined himself as A.W.1 and examined the Civil Surgeon as A.W.2 and got marked Exs.A1 to A6. On behalf of the 2nd respondent, Ex.D1 insurance policy was filed. The Commissioner, after the pleadings and arguments are complete, framed the following points for consideration: 1) Whether the applicant met with an accident on 10.07.2002 as a driver on auto bearing NO. AP13U 9614 and sustained injuries during the course and out of his employment with the 1st opposite party? 2) If yes, what is the percentage of physical disability and subsequent loss of earning capacity? 3) Who are liable to pay compensation to the applicant? And 4) What is amount of compensation entitled by the applicant? The Commissioner, after a careful analysis of the evidence available on record, held that the applicant was working as a driver under the 2nd respondent herein in his auto and he met with an accident during the course of employment. His age was determined, based on Ex.A4 original driving licence, as 23 years and his earnings were taken as Rs.2,604/- per month. Coming to the question of loss of earning capacity, the Commissioner, after relying on the catena of decisions of this Court and based on the certificate issued by A.W2, to the effect that the injured suffered disability at 55%, assessed the loss of earning capacity at 75% and accordingly, awarded Rs. 2,57,737/- as compensation. Learned counsel for the appellant-Insurance Company contends that the quasi-judicial functionary, namely the Commissioner for a non-schedule injury, has taken the loss of earning capacity as 75% instead of 55% as assessed by the doctor and that the doctor has assessed only the disability and the loss of earning capacity has to be decided taking into account and consideration the nature of duties and the age of the injured. According to him, in this case, under Section 4 of the Act, 60% of the monthly wages of the injured-workman, multiplied by the relevant factor i.e. 219.95, have to be paid, inasmuch as the permanent total disablement resulted from the injury. Learned counsel for the 1st respondent injured contends that since the doctor has assessed the disability only, the matter has to be remanded to the Commissioner so as to enable the loss of earning capacity to be assessed by the competent medical practitioner. He further contends that the appeal itself is not maintainable, since Section 30 of the Act mandates that the entire compensation awarded by the Commissioner, including the interest calculated thereon, shall be deposited by the appellant but in the instant case, the appellant deposited only the compensation awarded by the Commissioner. In order to give a justifiable quietus to this matter, it is relevant to have a perusal of Section 4(1)(c)(2) of the Act. “ Section 4(1)(c)(2): (1)Subject to the provisions of this Act, the amount of compensation hall be as follows: (c) Where permanent partial disablement results from the injury. (ii) In the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.” Admittedly, though the injury caused to the injured was a non- schedule injury, A.W.2, doctor, certified that the injured suffered permanent partial disablement. He has assessed the same at 55%, but however, in view of Section 4(1)(c)(ii) of the Act, the loss of earning capacity has to be decided by a qualified medical practitioner. Here, in the instant case, the doctor has assessed the disability only. In New India Assurance Co. Ltd., Hyderabad v. Sammayya[1], this Court held that the assessment of loss of earning capacity by a qualified doctor is a must and not discretionary. In Gona SivaSankar v. Varaprasad[2], it has been held that the proper authority has to decide whether an employee suffers injury other than one specified in Schedule I, and that the Commissioner has to follow the procedure prescribed under Section 4(1)(c)(ii) and the percentage of disability and percentage of loss of earning capacity shall be determined and certified by a medical practitioner and incase this could not be done, the Commissioner is competent to determine the same. This shall be done duly taking into account the percentage of disability and the nature of functions to be discharged by the workman. In view of the above settled law, and in view of the facts and circumstances prevailing in this case, the order dated 27.08.2003 in W.C.No. 116 of 2002 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-IV, Hyderabad is set aside and the matter is remanded for consideration afresh and disposal in accordance with law, directing the Commissioner to determine the loss of earning capacity and if necessary, liberty may be given to the 1st respondent to adduce evidence with regard to the loss of earning capacity with reference to the age and nature of duties. The entire exercise shall be completed within a period of three months from the date of receipt of a copy of this order. The Civil Miscellaneous Appeal is accordingly allowed. No costs. ___________________________ GHULAM MOHAMMED, J. 19th August 2010 ksld THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No.1943 of 2004 17th June 2010 CVRK . and Gona Sivasankar v. Varaprasad[3]. In Sammayya’s case (referred to supra), [1] 1995 (3) ALT 470 [2] 2005(1) ALD 380 [3] 2005(1) ALD 380