THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.3364 of 2004 JUDGMENT: This appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) against an order, dated 27.02.2004, passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Ranga Reddy District, Circle-I (for short ‘the Commissioner’). 2. The first respondent-workman filed W.C.No.1 of 2001 before the Commissioner, claiming compensation of Rs.1,25,000/- on account of the injuries sustained by him during the course of employment. He pleaded that he was employed as a Driver of a Tanker lorry bearing No.AP-9-U-1916, owned by the second respondent, and that on 29.04.1995, while he was proceeding from Hyderabad to Baroda by driving the said Tanker in the course of his employment and when reached the outskirts of Humnabad, he lost control over the vehicle and dashed a tree, as a result of which, he sustained grievous injuries. The nature of injuries sustained by him and the particulars of expenditure incurred by him were mentioned. The case was contested by the appellant- insurer. By the order under appeal, the Commissioner awarded a sum of Rs.2,54,148/- along with simple interest @ 12% per annum amounting to Rs.1,21,992/- and in total, a sum of Rs.3,76,140/- was awarded as compensation to the first respondent. Disputing the quantum of compensation, the appellant-insurer filed the present appeal. 3. Heard both sides and perused the material on record. 4. Learned counsel for the appellant vehemently contended that the Commissioner erred in assessing 100% loss of earning capacity of the first respondent though the doctor-A.W.2 had estimated his disability at 40% as per the disability certificate- Ex.A12. He further contended that as the disability sustained by the first respondent is only functional, there is no loss of earning capacity to him. He has drawn the attention of this Court to Section 4(c)(ii) of the Act and it reads as under: “4 (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 it proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner permanently caused by the injury). He has also drawn the attention of this Court to the judgment of the Apex Court in ORIENTAL INSURANCE COMPANY LTD., v. MOHD. NASIR[1]. He further contended that the Commissioner erred in awarding higher compensation than the claim made by the first respondent. 5. From a perusal of the material on record, it is evident that AW2-doctor, who treated the first respondent, has stated that the physical disablement suffered by the first respondent is at 40% and it is a partial permanent disability and that he issued Ex.A12- disability certificate. Though the doctor stated that it is a partial permanent disability, the assessment made by the Commissioner as regards the loss of earning capacity of the first respondent at 100% as it is a permanent total disablement within the meaning of Section 2(l) of the Act, cannot be sustained because as per Section 4(c)(ii) of the Act, with regard to the non-schedule injury, the criterion for assessing the compensation is as per the assessment made by a qualified medical practitioner. In the case of the first respondent, the doctor had assessed 40% physical disability. 6. The Commissioner has taken the monthly wages of the first respondent at Rs.2,400/- and the relevant factor as per schedule IV of the Act is 211.79. The extent of disability suffered by the first respondent shall be taken at 40%. Then, the amount of compensation comes to Rs.2,400X60/100X211.79X40/100= 1,21,991/-. Therefore, the compensation awarded by the Commissioner is reduced from Rs.3,76,148/- to Rs.1,21,991/- and the rate of interest from 12% to 7% per annum. In all other respects, the order impugned shall remain unchanged. 7. With the above modification, the Civil Miscellaneous Appeal is allowed in part. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date:29.07.2010. sj [1] (2009) 6 SCC 280