( 1 ) (APPEAL Under Section 30 of W. C. against the order/decree in W. C. No. 234 of 1996 dated 14-2-2001 on the file of the court of the Commissioner of Workmens Compensation and Assistant Commissioner of Labour-I Circle, Guntur.) this C. M. A. , arises out of an order, dated 14. 02. 2001, passed by the Commissioner for Workmens Compensation and Assistant Commissioner of Labour-I Circle, Guntur (for short the Commissioner), in W. C. No. 234 of 1996.

( 2 ) THE appellant filed an application under the provisions of the Workmens Compensation Act, 1923 (for short the Act) before the Commissioner alleging that he was employed with the 1st respondent as driver to work on lorry No. AP 7v/2142. According to him, when he was proceeding from Guntur to Deenapur in West Bengal, with a load of Chillies on 25. 08. 1995, another lorry coming in the opposite direction hit him at Ulibadi Village in Howrah District, West Bengal. In that accident, his left thigh bone is said to have got fractured. He pleaded that he underwent treatment as in-patient, for a week, in a hospital at West Bengal, and thereafter underwent treatment for about three months in a private hospital of Dr. Suresh at Ponnur, Guntur District. According to him, there is stiffness in the leg even after such a prolonged treatment, and that he is not in a position to discharge his functions as driver. He pleaded that his salary, at the relevant point of time, was Rs. 1,500/- per month, and that he was aged 35 Years. He claimed compensation of Rs. 2,00,000/ -.

( 3 ) THE 1st respondent remained ex parte. The 2nd respondent disputed the claim of the appellant. It contradicted the facts and figures as to age and wages as well as the very occurrence of accident. The existence of insurance policy coverage was also disputed. On behalf of the appellant, Aws. 1 and 2 were examined and Exs. A1 to A. 4 were marked. On behalf of the 2nd respondent, none were examined. CW. 1 was examined and Exs. X. 1 to X. 3 were also marked. The Commissioner awarded a sum of Rs. 49,364/- The appellant seeks enhancement of the same.

( 4 ) SRI. A. Rajender Babu, learned counsel for the appellant submits that the evidence on record discloses that the appellant is totally disabled and incapacitated from driving the vehicle, and in that view of the matter, the loss of percentage of earning capacity has to be taken at 100%. He further submits that though the minimum wages, at the relevant point of time, for the post of driver were at Rs. 1,843/-, the Commissioner has taken the wages at Rs. 1,000/- without there being any basis. He submits that the Commissioner ought to have awarded the compensation as prayed for. Sri Ramachandra Reddy, learned counsel for the 2nd respondent, on the other hand, submits that the appellant did not place any evidence before the Commissioner to prove the nature of injuries or the immediate impact of the same on his earning capacity. He submits that AW. 2, on his own showing has seen the appellant for the first time, five years after the accident, and fixation of percentage of disability, or loss of earning capacity on that basis is not at all permissible. He contends that the Commissioner has taken the wages at Rs. 1,000/- since there did not exist any material to prove the actual wages paid to the appellant.

( 5 ) THE appellant made a claim before the Commissioner for compensation, on account of the injuries received by him in an accident said to have taken place on 25. 08. 1995. The allegation of the petitioner that he was employed as driver with the 1st respondent virtually remained unrebutted and the 2nd respondent did not make any effort to contradict the same. In that view of the matter, the Commissioner proceeded on the basis that there exists the relationship of employer and employee between the appellant and the 1st respondent.

( 6 ) WHILE awarding compensation under the Workmens compensation Act, 1923 (for short the Act), the commissioner has to take into account the age, wa

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