JUDGMENT :

1. The present Civil Miscellaneous Appeal has been filed by the Insurance Company against the award dated 20.06.2008, in W.C.No.5 of 2005, on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Mahabubnagar [for short “Commissioner”], whereunder the claim of respondent No.1 herein was partly allowed granting the compensation of Rs.2,64,930/-.

2. There is no dispute with regard to the accident and also injuries sustained by respondent No.1 herein in the accident. As per Ex.A2/wound certificate, respondent No.1 sustained three injuries, out of which, one is grievous in nature, which is on the upper side of right hand and other two injuries are simple in nature. AW2/doctor has assessed physical disability at 30% and the Commissioner took loss of earning disability at 75% for calculation of monitory benefits.

3. Heard the learned counsel on either sides and perused the material placed on record.

4. The contention of the learned standing counsel appearing for the appellant herein/Insurance Company is that the disability certificate issued by AW2/doctor is not scientifically proved and there is a vague statement in the certificate that there was malunion of right arm and doctor has assessed disability at 30%. It is also his contention that the evidence of the appellant herein/Insurance Company clearly shows that subsequent to the accident, there was a renewal of licence under Exs.D1 and D2. When there is renewal, it is clearly proved that there is no disability sustained by respondent No.1 and he was fit to drive the vehicle. This evidence was not considered by the trial Court.

5. The learned counsel representing respondent No.1/injured has contended that Ex.A2/wound certificate and the disability certificate issued by the doctor clearly demonstrate that there is a grievous injury to the right arm on the upper side and such fracture injury was contributing factor for determination of physical disability at 30%. Respondent No.1 was the driver and he could not drive the vehicle with 30% disability of right arm. With regard to Exs.D1 and D2, he has contended that this was obtained basing on some wrong advise and there is no clear examination of the doctor, who issued fitness for the driving license, to show that respondent No.1 was physically fit to drive the vehicle. Such a renewal cannot be basis to contend that there is no disability.

6. In the light of the aforesaid contentions, the following substantial questions of law fall for consideration :

“1. Whether findings of the Commissioner in determining the loss of earning disability at 75% vis-a-vis physical disability at 30% suffer from any perversity?

2. Whether the trial Court can award a statutory interest in favour of respondent No.1 in the absence of any appeal or cross appeal or cross objections in the appeal filed by the insurer.”

7. Ex.A2/would certificate shows that respondent No.1 suffered three injuries, out of which, one of the injury is grievous in nature. Such injury is on the upper side of the right arm. X-ray was taken into consideration while determining the physical disability of the right arm. As per doctor, on examination of X-rays, there were findings of malunion. Though the disability certificate issued by the doctor is not clear whether the malunion is at the shoulder or at the scapular or at the middle of the hand, the fact is that there is a grievous injury on the upper side of the right hand which is humongous. Malunion whether in the middle joint of the hand or upper shoulder, it definitely restricts the movement of the hand. This will have the some impact on the driving skills of the injured. Hence, the assessment of physical disability at 30% cannot found fault with. However, the driving licence obtained by respondent No.1 clearly demonstrates that he could still able to drive the vehicle.

8. The Commissioner has not considered Exs.D1 and D2 in right perspective in assessing the loss of earning disability of res