HON’BLE MR JUSTICE R. KANTHA RAO MACMA Nos. 441 of 2007 DATED: 11.08.2008 BETWEEN: The New India Assurance Co. Ltd. . . Appellant And Sri N.Kuru Murthy and another .. Respondents HON’BLE MR JUSTICE R. KANTHA RAO MACMA Nos. 441 of 2007 JUDGMENT: This appeal is filed by the New India Assurance Company Limited, Secunderabad which is opposite party No.2 before the Commissioner for Workmen's Compensation and Assistant Commissioner for Labour, Mahboobnagar in W.C.No.44 of 2005 challenging the award passed by the Commissioner under the Act granting compensation of Rs.3,63,780/- and directing the opposite parties i.e. the applicant and the first respondent (the insured) and to deposit the total amount within 30 days from the date of receipt of copy of the order and further ordering that on failure to deposit the amount, the applicant is entitled for interest @ 9% per annum from the date of filing of the application. 2. The said award was passed by the learned Commissioner under the Act in respect of personal injuries received by the applicant which ultimately resulted in permanent disability. The applicant was a driver and his contention was that on account of the disability sustained by him, it is not possible for him to work as a driver any longer and therefore, the disability can be considered to be total. He examined a private doctor who assessed the disability at 50%. In the course of the enquiry before the Commissioner, the appellant herein (second opposite party) filed a petition to refer the applicant to the District Medical Board for obtaining a disability certificate. The learned Commissioner partly allowed the petition directing the second opposite party to get the applicant examined by one of the panel doctors of the appellant-company. However, the said order was not complied with by the applicant. 3. The learned Commissioner considering the evidence of AW-2, the private orthopaedic surgeon who estimated the disability of the applicant at 50% and arrived at a decision that the applicant has been permanently and totally disabled and incapacitated to function as driver any more, reached the conclusion that the disability is 100% and accordingly granted compensation of Rs.3,63,780/- to the applicant holding the first opposite party (the insured), and the second opposite party (the appellant herein) jointly and severally liable to pay compensation. 4. The award passed by the Commissioner under the Act has been challenged by the insurance company contending that as per the provisions of the Act, a private orthopaedic surgeon is not competent to issue disability certificate and the appellant company has no panel of doctors who could assess the loss of earning capacity of the applicant as per the provisions of the Act, the certificate issued by the private orthopaedic surgeon without reference to Schedule-I of Workmen's Compensation Act, cannot be taken into consideration for assessing the loss of earnings. 5. I have gone through the relevant provisions of the Act in the light of the submissions made by the learned counsel appearing for the appellant and also perused the judgment of the Apex Court in National Insurance Company Limited Vs. Mubasir Ahmed and others[1] wherein it is laid down as follows: “In terms of Section 4(1)(c) (ii) Explanation II the qualified medical practitioner has to assess the loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in Schedule-I. Explanation I also provides that where there are more injuries than one, the aggregate has to be taken, so that the amount which would be payable for permanent total disablement is not exceeded. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. The finding of the High Court that there was 100% loss of earning capacity without indicating any reason or basis in support of the conclusion, the same cannot be maintained.” 6. In the instant case, the direction issued by the Commissioner to the appellant-insurance company to get the applicant examined by one of its panel doctors for the purpose of assessing the disability as well as loss of earnings is unsustainable,, the learned Commissioner passed the award in utter ignorance of Section 2 of provisions substituting his personal opinion in the matter of arriving at loss of earnings. The award passed by the learned Commissioner being contrary to law and since there was no basis for the learned Commissioner in arriving at the amount of compensation, the impugned award is liable to be set aside in this appeal and accordingly the same is set aside. 7. The matter is remitted back to the Commissioner for Workmen's Compensation and Assistant Commissioner for Labour, Mahboobnagar in W.C.No.44 of 2005 for disposal afresh within four months from the date of receipt of the copy of this judgment by affording opportunity to both the parties to adduce evidence and to make their submissions and pass appropriate order in accordance with the provisions of the Act. 8. With the above direction, the appeal is disposed of. There shall be no order as to costs. _______________ Date:11.08.2009. R. KANTHA RAO, J CCM [1] 2007(2) SCC 349