( 1 ) THE Claimant in W. C. No. 108 of 1997, before the Commissioner for Workmen s compensation and Assistant Commissioner of Labour, II Circle, Guntur (for short "the commissioner"), has filed this appeal, assailing the order, dated 17-7-1999, passed by the Commissioner.

( 2 ) THE appellant is employed as a Cleaner with the first respondent, on the lorry bearing no. AHJ 7954. He pleaded that on 27-3-1997, while he was on duty, on the said lorry, he sustained injuries, when the vehicle ran over his right leg, at Guntur, on National Highway no. 5. He claimed that his right leg, below knee, was amputated, and claimed compensation under the provisions of workmen Compensation Act, 1923, (hereinafter referred to as "the Act" ).

( 3 ) THE first respondent remained ex parte.

( 4 ) THE second respondent, insurer of the vehicle, contested the claim. It disputed the employment of the appellant with the first respondent, as well as the allegation that he sustained injuries, during the course of his employment. Before the Commissioner, the appellant examined himself as A. W. 1 and a doctor, who is said to have treated him, as a. W. 2. No evidence was adduced by any of the respondents. The Commissioner awarded a sum of Rs. 79,926/-, as compensation.

( 5 ) LEARNED counsel for the appellant submits that the appellant sustained 100% disability, whereas the Commissioner treated the disability at 50%. He also contends that though the wages of the appellant, at the relevant point of time, was Rs. 1500/- per month, the Commissioner has taken the minimum wages at Rs. 1187/- into account, while fixing the compensation. Placing reliance upon certain judgments rendered by this Court, learned counsel seeks enhancement of the compensation.

( 6 ) LEARNED counsel for the second respondent, on the other hand, submits that the percentage of loss of earnings, is provided for, under Schedule I to the Act, and the commissioner has adopted the same. He also submits that the appellant failed to prove that he was being paid the wages at rs. 1500/- per month, and in the absence of the same, the Commissioner was left with no other alternative, except to take the minimum wages into account.

( 7 ) THE appellant pleaded that he was employed with the first respondent. Though the second respondent disputed this aspect, in the absence of any denial by the first respondent, the relationship of "employer" and "employee" between the appellant and the first respondent, has tobe taken as proved. The occurrence of accident was also not seriously in dispute. The controversy was much about the quantum of compensation.

( 8 ) SECTION 4 read with Schedules I and IV of the Act, stipulate the parameters for determination of compensation. Section 2 (g) defines the expression partial disablement and Section 2 (I)defines total disablement . The percentage of loss of earning capacity, vis-a-vis, the nature of injury received by a workman is stipulated under Schedule I. While Part I thereof, deals with permanent total disablement , Part II deals with permanent partial disablement . The extent of loss of earning capacity indicated thereon is presumptive. If the workman is able to plead and prove that the impact of injury received by him on his working, or earning capacity, is much more than the one stipulated under Part II of Schedule I of the act, he would be entitled to be awarded the compensation, proportionate to or commensurate with the extent of disability so proved. Section 4 of the Act provides for the same. In fact, the definitions of partial disablement and total disablement , under the respective provisions make this aspect very clear.

( 9 ) THE appellant pleaded that his right leg was amputated below the knee level. This injury finds place at Serial No. 21 in Part II of schedule I. The percentage of loss of earning capacity on account of this injury is fixed at 50%. A. W. 2, who is said to have treated the appellant, has certified the disability of the appellant at 45%

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