Judgment :- This Civil Miscellaneous Appeal is filed by the Insurance Company against the Award dated 29.06.2007 made in W.C. No.431/2005 on the file of the Commissioner for Workmens Compensation-2 Court/Deputy Commissioner of Labour-2, D.M.S. Compound, Teynampet, Chennai-600 0006. 2. Background facts in a nutshell are as follows:- The first respondent was employed by the second respondent as a driver. He was earning a salary of Rs.4,000/- per month plus Rs.50 per day as batta. He was a driver driving Tata Mobike bearing Registration No.TN-21-Q-9804. On 210. 2005 at about 9.00 a.m., the first respondent was driving the said vehicle from Chennai to Kadapakkam in the ECR Road and while he was reaching Perunthuravu Bibble College, he met with an accident. Due to the accident, he sustained right hand fracture, right femur injury, hip injury and multiple grievous injuries all over the body. He was taken to the Government Hospital, Pondicherry and admitted as in-patient on 210. 2005 and he has also taken private treatment. The age of the first respondent was 23 years at the time of accident. He claimed a compensation of Rs.5,00,000/-as compensation before the Commissioner for Workmens Compensation-II (Deputy Commissioner of Labour-II), Chennai ("Deputy Commissioner" in short). The Insurance Company resisted the claim. On the pleadings, the following issues were framed:- a) Whether the accident had occurred in the course of employment or not? b) Whether the claimant is entitled to receive any compensation or not? If so, what is the amount and from whom? After considering the oral and documentary evidence, the Deputy Commissioner awarded a sum of Rs.2,60,443/-as compensation. Aggrieved by the same, the Insurance Company has filed the present appeal, raising the following substantial questions of law:- "a) Whether the Deputy Commissioner of Labour-2, Chennai-6 is right in fixing the loss of earning capacity of the applicant as it is the percentage of physical disability assessed by the Doctor? b) Whether the Deputy Commissioner of Labour-2, Chennai-6 has followed the guidelines given by the Supreme Court while fixing the loss of earning capacity of the applicant? c) Whether the Deputy Commissioner of Labour-2, Chennai-6 is right in fixing the monthly salary of the applicant at Rs.3,947/-after having found that the applicant had not proved his salary? d) Whether the Deputy Commissioner of Labour-2, Chennai-6 is right in holding that the applicant was an employee as defined under the Workmens Compensation Act, 1923?" 3. c) Whether the Deputy Commissioner of Labour-2, Chennai-6 is right in fixing the monthly salary of the applicant at Rs.3,947/-after having found that the applicant had not proved his salary? d) Whether the Deputy Commissioner of Labour-2, Chennai-6 is right in holding that the applicant was an employee as defined under the Workmens Compensation Act, 1923?" 3. Learned counsel for the appellant / Insurance Company submitted that the Deputy Commissioner has failed to appreciate the materials placed before him in the proper perspective and committed a serious error while passing the award. It is also submitted that the Deputy Commissioner ought not to have taken the percentage of physical disability assessed by the Doctor for fixing the percentage of loss of earning capacity. It is also further submitted that the Deputy Commissioner failed to see that the injuries suffered by the claimant are not schedule injuries and the claimant had suffered fracture only on his right fore hand. It is also submitted that the Deputy Commissioner is wrong in assessing the disability at 50%. 4. Learned counsel appearing for the first respondent / claimant submitted that the Tribunal had considered all the relevant materials and evidence available on record and awarded a just, fair and reasonable compensation. 5. Heard the counsel. On behalf of the claimant, witnesses P.W.1 and P.W.2 were examined and documents Ex.P1 to Ex.P14 were marked. On the side of the second respondent, one Periyandavan has been examined as R.W.1, who is the husband of the second respondent, and documents Ex.R1 to Ex.R4 were marked. On the side of the Insurance Company, no witnesses were examined and and no documents were marked. P.W.1 is the first respondent. P.W.2 is the Doctor. Ex.P1 is the copy of First Information Report. Ex.P2 is the Accident Register of Pondicherry Govt. Hospital. Ex.P3 is the treatment details given by the Pondicherry Govt. Hospital. Ex.P4 is the documents pertaining to treatment given at Puthur. Ex.P5 is the Discharge Summary given by Melmaruvathur Hospital. Ex.P6 is the slips given for treatment by Melmaruvathur Hospital. Ex.P7 is the medical bills given by Melmaruvathur Hospital. Ex.P8 is the Registration Certificate of the vehicle. Ex.P9 is the copy of Insurance Policy. Ex.P10 is the Driving Licence. Ex.P11 is the photo with negative. Ex.P12 and Ex.P14 are the X-rays. Ex.P13 is the disability certificate. Ex.R1 is the Registration Certificate of the vehicle. Ex.R2 is the Insurance Policy. Ex.P7 is the medical bills given by Melmaruvathur Hospital. Ex.P8 is the Registration Certificate of the vehicle. Ex.P9 is the copy of Insurance Policy. Ex.P10 is the Driving Licence. Ex.P11 is the photo with negative. Ex.P12 and Ex.P14 are the X-rays. Ex.P13 is the disability certificate. Ex.R1 is the Registration Certificate of the vehicle. Ex.R2 is the Insurance Policy. Ex.R3 is the Recognition Letter. Ex.R4 is the signature for having paid the instalment for the vehicle. After considering Ex.P3-treatment details given by the Pondicherry Govt. Hospital, Ex.P4-documents pertaining to treatment given at Puthur, Ex.P5-Discharge Summary given by Melmaruvathur Hospital, Ex.P6-slips given for treatment by Melmaruvathur Hospital and Ex.P7-medical bills given by Melmaruvathur Hospital, the Deputy Commissioner had given a categorical finding that the claimant was injured only in the course of employment and awarded a sum of Rs.2,60,443/-. The details of the compensation are as under:- Age 23 years Relevant factor 219.95 Loss of earning capacity 50% Monthly salary Rs.3947/- Award 219.95 x 60/100 x 50/100 x 3947 = Rs.2,60,443/- The claimant was 23 years at the time of accident. Ex.P10 is the Driving Licence which also supports the age of the claimant, as 23 years. The claimant claimed that he was earning Rs.4,000/- per month plus Rs.50/-per day as batta. But there is no evidence to prove that the claimant was earning Rs.4,000/- per month and also Rs.50/- per day as batta. Hence the Deputy Commissioner fixed the monthly income at Rs.3947/-by relying on G.O.No.(2)47, Labour and Employment Department, dated 01.08.2003 under the Minimum Wages Act, 1948. I feel that the Tribunal is correct in stating the age of the claimant as 23 years old and also the Tribunal has correctly taken the monthly income of the claimant at Rs.3947/-. Further the Tribunal has also adopted the correct relevant factor. Hence the age, monthly income and the relevant factor are confirmed. In respect of loss of earning capacity, the Deputy Commissioner determined the disability at 50%. After going through the evidence of P.W.2, the Doctor, Ex.P13-Disability Certificate and Ex.P12 and Ex.P14-X-rays, I feel that it would be appropriate and reasonable to fix the disability at 40% instead of 50% as determined by the Deputy Commissioner. In respect of loss of earning capacity, the Deputy Commissioner determined the disability at 50%. After going through the evidence of P.W.2, the Doctor, Ex.P13-Disability Certificate and Ex.P12 and Ex.P14-X-rays, I feel that it would be appropriate and reasonable to fix the disability at 40% instead of 50% as determined by the Deputy Commissioner. Accordingly, the modified amount of compensation are as under:- Age 23 years Relevant factor 219.95 Loss of earning capacity 40% Monthly salary Rs.3947/- Award 219.95 x 60/100 x 40/100 x 3947 = Rs.2,08,362.13 Rounded off to Rs.2,10,000/- Therefore, the claimant is entitled to the modified compensation of Rs.2,10,000/-as against the compensation of Rs.2,60,443/- awarded by the Deputy Commissioner. 6. It is stated that the entire compensation awarded by the Deputy Commissioner had already been deposited. Therefore, the claimant is permitted to withdraw the modified amount of Rs.2,10,000/- from the deposit. The Insurance Company is also permitted to withdraw the balance amount lying in the deposit on making proper application. 7. The Civil Miscellaneous Appeal is disposed of with the above modification. Consequently, M.P.No.1 of 2007 is closed. No costs.