L. Narasimha Reddy, J.
1. The appellant was employed as a driver with the 1st respondent to work upon a lorry bearing No. AP-7T-5335. On 28-1-1998, he was on the way from Guntur to Khatmandu, in Nepal. While it was passing through the State of Madhya Pradesh, the lorry met with an accident and the appellant received multiple injuries and fracture to four bones, of different parts of the body. He was treated as inpatient up to 31-1-1998, two operations were conducted upon him and steel rods have been inserted, to ensure proper joining of bones.
2. The appellant filed W.C. No. 61 of 1999 before the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-II Circle, Guntur, (for short 'the Commissioner'), claiming compensation of Rs. 3,00,000/- for the injuries sustained by him. The insurer of the vehicle was impleaded as the 2nd respondent. The appellant pleaded that he suffered total disablement and he is entitled for compensation claimed by him. The claim was opposed by the insurer of the vehicle. Through its order, dated 31-8-2001, the Commissioner awarded a sum of Rs. 1,28,142/- as compensation. The loss of earning capacity of the appellant was taken at 50% and his wages at Rs. 2,000/- per month. The appellant seeks enhancement of the same.
3. Sri A. Rajendra Babu, learned Counsel for the appellant, submits that on account of the injuries sustained by him, the appellant became totally unfit to function as driver and thereby suffered total disablement. He contends that this fact was proved by the deposition of AW - 2, the doctor, who treated the appellant. It is also his case that the Commissioner took the wages of the appellant, at the relevant point of time, in a very arbitrary manner.
4. Before the Commissioner as well as before this Court, the 1st respondent remained ex-parte.
5. Smt. Kalpana Ekbote, learned Counsel for the 2nd respondent, submits that the injuries sustained by the appellant would not fall into either Part-I or Part-II of Schedule-I of the Workmen's Compensation Act, 1923, (for short 'the Act') and even, the assessment of the loss of earning capacity at 50% is on higher side. She contends that only in case of amputation of limb, the loss of earning capacity can be assessed at 50% and not in cases, where the injuries are in the nature of fractures. Learned Counsel further submits that the wages of the appellant were taken on the basis of the Notification issued under the Minimum Wages Act and that the order under appeal does not warrant any interference.
6. Both the learned Counsel have relied upon decided cases in support of their respective contentions.
7. The occurrence of the accident, the employment of the appellant with the 1st respondent and the existence of insurance coverage by the 2nd respondent for the vehicle, are not in dispute. It is stated that the appellant suffered as many as four fracture injuries and operation had to be conducted twice. The appellant deposed as AW-1 and stated that he became unfit to drive the vehicles. Similarly, the doctor, who treated the appellant and deposed as AW.2, stated that the appellant can no longer drive the vehicle on account of the injuries sustained by him.
8. Had the claimant sustained one or many injuries enlisted in Parts I and II of Schedule-I of the Act, much difficulty would not have existed, in the matter of assessing loss of earning capacity.
9. The learned Counsel for the appellant placed reliance upon the judgment in Pratap Narain Singh v. Shrinivas Sabata : (1976)ILLJ235SC , wherein the Supreme Court held that in case the injury had resulted in total disablement, the loss of earning capacity must be taken at 100%, irrespective of the fact that the Schedule provides for a different percentage for such injuries. That, however, was a case decided before the Act came to be amended. Section 4 of the Act was amended in the year 1984. Explanation II to Section 4(1)(c) of the Act mandates that whenever an employee had received an injury, which does not find place in the Schedule, the medical practitioner, who undertakes the assessment of the loss of earning capacity, must have regard to the proximate injury mentioned in the Schedule. In National Insurance Co. Limited, Hyderabad v. M. Shyam Prasad : 2005(6)ALD56 , this Court took the view that the percentage of loss of earning capacity in respect of an injury, which does not fall under Part-II of the Schedule, cannot exceed the one, which is specified in the Schedule, for an injury, which is proximate to such injury. In New India Assurance Co. Limited v. Ponnammal and Ors. : (2003)IIILLJ111Mad , a Division Bench of Madras High Court had listed out the factors that would constitute the basis in the matter of determination of compensation in matters of this nature. It was pointed out that the certification by a medical officer as to the percentage of disability need not necessarily result in the same percentage of loss of earning capacity.
10. In the instant case, the Commissioner took the loss of earning capacity of the appellant at 50%. Incidentally, under Part-II of Schedule-I of the Act, the loss of earning capacity at 50% is mentioned against the injuries leading to amputation. Though the injuries sustained by the appellant are serious in nature, they did not lead to amputation. In that view of the matter, it cannot be said that the loss of earning capacity assessed for the appellant at 50%, is in anyway disproportionate to the injuries suffered by him.
11. Coming to the factors that were taken into account in the matter of assessing the compensation, it is evident that the plea of the appellant that he was being paid a sum of Rs. 3,000/- per month as salary was not accepted by the Commissioner. He referred to G.O. Ms. No. 71 date 16-4-1991, issued under the Minimum wages Act. According to the Commissioner, the minimum wages for the post of driver, that were in force as on the date of accident was Rs.2,282/-. However, he took the wages at Rs.2,000/-. The wages payable to the employee are required to be not less than the minimum wages. In the instant case, the Commissioner took the emoluments of the appellant less than the prescribed minimum wages. This Court is of the view that Rs. 2,500/- can safely be taken as the wages payable. If the said wages are taken, the compensation payable to the appellant comes to Rs.1,60,177/-.
12. The CMA is partly allowed enhancing the compensation from Rs.1,28,142/- to Rs.1,60,177/-. The enhanced compensation amount would carry interest at 7.5% per annum. There shall be no order as to costs.