JUDGMENT :

(Venkata Jyothirmai Pratapa, J.)

1. This Civil Miscellaneous Appeal is directed under Section 30 of the Workmen Compensation Act, 1923,( for short ‘the Act’) against the impugned Order dated 23.03.2002 in W.C.No.42 of 2000on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Srikakulam (hereinafter be referred to as“ Commissioner”.)

2. The appellant herein was the Opposite Party No.2, Respondent No.1 herein was the Applicant and respondent No.2 herein was the Opposite Party No.1 before the learned Commissioner. For the sake of convenience and understanding, the parties are referred to as they were arrayed before the learned Commissioner.

3. The case of the Applicant in nutshell is that:

a. Applicant/Injured-Sri DhavalaRama Rao received injuries during the course of employment on 29.03.1999 while he was working as a coolie to carry heavy loads in the rice mill of O.P.No.1 i.e., Sri Savaraju Modern Rice Mill, Amadalavalasa. He suffered fractures to his rightleg and is unable to continue his work as a Hamali, resulting 100% of loss of earning capacity. Therefore, he sought for compensation of Rs.1,57,686.35 Ps from the Opposite Parties.

4. O.P.No.1 filed Counter Affidavit admitting that the applicant worked in the rice mill and during the course of employment, he sustained injuries and he could not be reemployed as alternative employment is not available in their factory as the applicant cannot attend his regular work.O.P.No.2 filed Counter stating that the claim is very excessive.

5. During the enquiry before the learned Commissioner, applicant was examined as AW.1 and Sri B. Kondalarao, who treated the applicant was examined as AW.2. The employer of the applicant i.e., O.P.No.1 examined himself as RW.1.

6. After hearing both the counsel and on appreciation of the evidence on record, the learned Commissioner awarded an amount of Rs.1,70,615/- in favour of the applicant with interest at 12% p.a. from the date of accident against the claim of Rs.1,57,686.35 ps.

7. Having been aggrieved by the impugned Order, the O.P.No.2 preferred the present appeal with the following substantial question of law :

i) Whether the Commissioner has any jurisdiction to take the disability as 100% when the Doctor certified the disability as 40%.

ii) Whether the Commissioner can grant any compensation above the claim of the applicant ?

iii) Whether the Commissioner is wrong in awarding the compensation in the absence of any explanation for not serving any notice under Section 10 of the Workmen Compensation Act.

8. This Court heard both the learned counsel and perused the material available on record.

Point No.1:

9. The applicant as AW.1 deposed in replica to the averments made in petition in his chief examination affidavit to the effect that while he was working as a Hamali in the rice mill of O.P.No.1, the bags fell on him, resulting, he sustained fractures to his right leg and therefore, he cannot carry weights. Medical Board certified that he is totally and permanently unfit to carry heavy loads and therefore, he is claiming loss of earning capacity. In support of his claim, Dr. B. Kondala Rao, M.S. (Ortho), who treated the applicant as AW.2 supported the case of the applicant. He deposed that he has treated the applicant and issued Exs. A.1 and A.2. He issued the Disability Certificate under Ex.A.3, which shows that the applicant cannot carry any heavy weights and the applicant is not fit for job of any manual labour due to the injuries received to his right leg.

10. O.P.No.1 being the employer of the applicant examined as RW.1. He deposed that the accident occurred during the course of em