1. This Appeal is filed against the order dated 23-10-2008 passed in W.C.No.111 of 2007 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Sri T. Anjaiah Karmika Samkshema Bhavan, RTC Cross Roads at Hyderabad. The appellant herein is the Opposite party No.2/Insurance Company in the said W.C. The parties hereinafter will be referred to as they are arrayed before the learned Commissioner.

2. The brief facts of the case are that the applicant was employed by the opposite party No.1 as a driver for his auto bearing No.AP 24V 1202. On 02-09-2004 while the applicant was proceeding as the driver on the said auto from Mall to Chinthapalli with passengers, and at about 13-00 hours, when he reached the outskirts of Kurmede village at K.M. Stone No.66/4, he lost control over the said auto as a result of which the auto fell in a ditch and the applicant sustained grievous injuries and multiple fractures all over the body. Immediately he was shifted to the Government Hospital, Devarakonda for treatment. Therefore, the applicant filed the W.C. claiming Rs.5,00,000/- as a lump sum compensation.

3. During the course of trial, on behalf of the applicant, he himself was examined as AW-1 besides examining the doctor as AW-2 and got marked Exs.A-1 to A-9. On behalf of opposite party No.1, no oral or documentary evidence was adduced. On behalf of opposite party No.2, RW-1 was examined and Exs.B-1 to B-3 were got marked. The learned Commissioner, after considering the oral and documentary evidence adduced by both parties, came to the conclusion that the applicant met with the accident during the course and out of his employment, and assessed the loss of earning capacity at 60% and awarded the compensation of Rs.2,35,545/-and directed the opposite parties to deposit the amount within thirty days from the date of receipt of the order, failing which the applicant is entitled for interest @ 9% per annum on the amount of compensation from the date of accident. Aggrieved thereby, opposite party No.2/insurance company preferred the present appeal.

4. The only plea, which is urged on behalf of the appellant-insurance company, is to the effect that when the medical evidence available on record shows certain extent of disability, the percentage of loss of earning capacity cannot go beyond that and necessarily it has to be of the same percentage, but not above. Therefore, the learned Commissioner went wrong in assessing the loss of earning capacity of the applicant at 60% though the extent of disability, which the applicant suffered, is 40% and hence, the impugned order is not sustainable and it is liable to be set aside.

5. Repelling the aforesaid contentions, it has been pointed out on behalf of the applicant that the extent of disability and the loss of earning capacity cannot go together and each case has to be decided on its own facts and the percentage of loss of earning capacity need not necessarily be restricted only to the extent of disability and it can certainly go far beyond the percentage of disability.

6. On consideration of the aforesaid submissions and on perusal of the material on record, the only point, which arises for consideration, is whether, on the facts and circumstances of the case, the loss of earning capacity should be restricted only to the extent of disability which the applicant-injured sustained?

7. The factum of the accident is not disputed. As seen from the impugned order, the learned Commissioner based on the report of AW-2 (doctor), who assessed the physical disability and the loss of earning capacity of the applicant, estimated the loss of earning capacity at 60% and awarded the compensation on such basis. Admittedly AW2 deposed that the applicant had sustained 1) fracture of right patella; and 2) fracture of right clavicle and other injuries and certified that the applicant developed i) moderate stiffness of right shoulder; ii) moderate stiffness of right knee; i