This C.M.A. is filed under Section 30 of the Workmen’s Compensation Act, 1953 (hereinafter, in short, referred to as ‘the Act’ for the purpose of convenience) by the New India Assurance Company Limited, rep. by its Deputy Manager, TP Cell, Alkarim Trade Centre, Ranigunj, Secunderabad, being aggrieved of the quantum of compensation awarded by the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour –III, Hyderabad (hereinafter referred to as ‘the learned Commissioner’) in W.C.No.44/2004.

2. This Court while admitting the C.M.A. on 28-1-2005 made the following Order:-

“There shall be interim stay as prayed for.

The only ground urged by the petitioner – appellant is that there is a difference of 10% in the assessment of disability suffered by the 1st respondent – applicant as made by the Doctor and the Authority under the Workmen’s Compensation Act. Hence, in any event, the applicant would be entitled, prima facie, to a sum not less than Rs.2,00,000/-. In the circumstances, the 1st respondent – applicant is permitted to withdraw a sum of Rs.2,00,000/- (Rs.Two lakhs only) from out of the amount deposited by the petitioner – appellant before the Commissioner, without furnishing any security.”

3. The substantial questionsof law raised by the appellant – 2nd opposite party are as hereunder:-

(1) Whether the order of the Commissioner is sustainable in view of the well established principle that the per centage of disability should be taken as loss of earning capacity, in case of non-schedule injuries?

(2) Whether the Commissioner is correct in awarding compensation, when the injured nor the employer failed to prove the relationship of employer-employee, either orally or by way of documents?

Ground No.3 of the Memorandum of Grounds of Appeal reads as hereunder:-

“The learned Commissioner erred in taking the loss of earning capacity as 70%, when the evidence of the Doctor clearly shows that the disability is 55% only. The Commissioner ought to have taken the percentage of disability as loss of earning capacity.”

4. Sri Naresh Bairapaneni, the learned Counsel representing the appellant had pointed out to the said substantial questions of law specified supra and also the other grounds raised as Grounds 4, 5,6 and 7 as well. The learned Counsel also had taken this Court through the contents of the order under challenge and would maintain that in the light of the evidence available on record, when the Doctor himself had estimated the physical disability at 55% in the light of Ex.A.5, though loss of earning capacity had been specified as 100%, recording a finding and assessing the same as 70% cannot be sustained. The learned Counsel also pointed out to the relevant provisions of the Act and also Schedule – I (Part II), Items 19 and 20 as well and further would maintain that in the light of the view expressed by the Division Bench in NEW INDIA ASSURANCE COMPANY LTD. V. ABDUL KHADER JILANI @ JILANI (2007 (4) ALT 607 (D.B.), the order to be modified specifying the per centage as 55% instead of 70%. The learned Counsel in all fairness would submit that as far as the proof relating to the relationship of employer and employee, in the light of the findings recorded by the learned Commissioner, the learned Counsel is not seriously pressing the same. The learned Counsel also relied on certain other decisions.

5. Per contra, Nivedita representing Pottigari Sridhar Reddy, the learned Counsel representing 1st respondent – applicant had taken this Court through the reasons which had been recorded by the learned Commissioner and would maintain that in the light of the same, this is not a fit matter to be interfered with. The learned Counsel also would further submit that even otherwise the grounds which had been raised cannot be said to be the substantial questions of law and hence on this ground also the C.M.A. is liable to be dismissed. Further the learned Counsel placed strong reliance on NEW INDIA ASSURANCE COMPANY LIM