Judgment :- The above Civil Miscellaneous Appeal has been filed by the appellant/second opposite party against the Award and Decree, dated 04.10.2004, made in W.C.No.448 of 2003, on the file of Commissioner for Workmens Compensation, Deputy Commissioner of Labour, Salem, awarding a compensation of Rs.2,25,138/-. 2. Aggrieved by the said Award and Decree, the appellant/second opposite party has filed the above appeal praying to set aside the award and decree passed by the Commissioner for Workmens Compensation. 3. The short facts of the case are as follows: The applicant Kandasamy aged about 55 years was working as a labourer under the first opposite party. On 27.02.2003, at about 07.00 a.m. while the applicant was loading dry grass in a tractor bearing registration No.TN28 B1119, owned by the first opposite party, the driver of the tractor moved the vehicle in a negligent manner without giving any signal to the applicant. The applicant, who was on the top of the vehicle fell down on the engine bannet and this had resulted in the accident. Due to the accident, the applicant sustained multiple grievious injuries over his spinal cord and he was paralysed. After the accident he was admitted at AG Nero Hospital, Salem and then shifted to Government Hospital, Salem. 4. Prior to the accident, the applicant was earning a sum of Rs.5,000/- per month. As a result of the injuries sustained by the applicant, he is not able to work as before and maintain his family. As the accident occurred only during the course of his employment under the first opposite party and as the second opposite party is the insurer of the tractor bearing registration No.TN28 B1119, both the opposite parties are vicariously and severally liable to pay compensation to the applicant. 5. The applicant has therefore claimed a compensation of Rs.5,00,000/- from both the opposite parties, under Section 10 of the Workmens Compensation Act. 6. Regarding the said accident, a criminal case has been registered at the Sendamangalam Police Station as against the driver of the Tractor in Crime No.235/2003 under Sections 279 and 338 of I.P.C. 7. The second opposite party has filed a counter and resisted the claim submitting that the applicant has to prove his age, occupation and alleged income, as well as establish the employer-employee relationship. The second opposite party has filed a counter and resisted the claim submitting that the applicant has to prove his age, occupation and alleged income, as well as establish the employer-employee relationship. It has been submitted that the applicant should also prove that the driver of the tractor, who allegedly drove it at the time of accident was duly licenced and it was also stated that the applicant has to prove the disability sustained by him in the accident by documentary evidence. It was also submitted that the delayed filing of FIR and the temporary nature of employment of applicant are sufficient reasons to absolve the liability of the second opposite party. It has also been submitted that the conditions mentioned in the policy issued by the second opposite party herein in favour of the first opposite party does not enable the applicant to claim any reimbursement whatsoever even if the alleged accident had occurred in the manner stated in the petition. It has also been submitted that the claim is excessive and has to be dismissed with costs. 8. The first respondent remained absent and also did not file any counter. Hence, he was set exparte. 9. On the applicants side, the applicant was examined as PW1 and the Dr.S.Kathiravan, who had assessed the disability of applicant was examined as PW2 and seven documents were marked as Exs.P1 to P7. On the side of the opposite parties no witness was examined and no documents were marked. 10. The Deputy Commissioner for Workmens Compensation framed five issues for the consideration namely: (i) Was the accident caused while the applicant was employed as a cleaner under the first opposite party and was the accident caused during the course of his work under the employment of the first opposite party? (ii) What is the age and income of the applicant at the time of accident? (iii) What is the loss of earning capacity sustained by the applicant in the accident? (iv) What is the quantum of compensation, which the applicant is entitled to get? (v) Who is liable to pay compensation to the applicant? 11. The PW1 has deposed in his evidence the same version of the accident as he had made in his claim. In support of his evidence, he had marked Ex.P1, the FIR and Ex.P5, the Wound Certificate. (v) Who is liable to pay compensation to the applicant? 11. The PW1 has deposed in his evidence the same version of the accident as he had made in his claim. In support of his evidence, he had marked Ex.P1, the FIR and Ex.P5, the Wound Certificate. On scrutiny of the FIR, it is seen that on 27.02.2003, the applicant was working in the field of the first opposite party and was loading dry grass on the tractor bearing registration No.TN28 B1119, owned by the first opposite party, Nallappa Gounder; that after completion of loading of dry grass, the driver of the said tractor had suddenly moved the vehicle, without giving any signal and that as a result of this, the applicant had fallen down and sustained injuries on his neck and chest. On the scrutiny of Ex.P5, the Wound Certificate, it is evident that the injuries sustained by the applicant on his neck and cheek had only been due to the said accident. As such, the Commissioner held that the applicant sustained injuries in the accident caused during the period of his employment and out of the course of his work under the first opposite party. 12. It has been stated in the petition that the applicant was aged about 55 years at the time of accident. On scrutiny of Ex.P5, the Wound Certificate, it is seen that the applicants age has been stated as 55 years. As such, the Commissioner held that the age of the applicant at the time of accident was 55 years. Though, it has been claimed on the applicants side that the applicant was earning a sum of Rs.5,000/- per month as no documentary evidence has been furnished to establish it, the Commissioner fixed the notional income of the applicant as Rs.2,768/-per month as per the Minimum Wages Act. 13. Dr.S.Kathiravan, who had assessed the disability of the applicant was examined as PW2. 13. Dr.S.Kathiravan, who had assessed the disability of the applicant was examined as PW2. The PW2, in his evidence, has deposed that due to the accident, the applicants 5th and 6th bone in his neck had slipped and had damaged his spinal cord; that due to this, the applicants hands and legs have been paralysed; that the treatment was given to the applicant, but even after treatment the bones, which had slipped out of place had not been set right; that the strength of the muscles in his hand and fingers, as well as the movements of his hand has been diminished; that the applicant also has difficulty in moving his neck and that these movements have become restricted. He has further deposed that the applicant has difficulty and unable to use his hand to feed himself, unable to grasp articles and unable to stand and walk for long periods of time; that he is also unable to sit on the floor and then stand up and has difficulty in doing hard Labour and driving vehicles. As such, the Doctor had stated that the disability sustained by the applicant was permanent in nature and had assessed the permanent disability of applicant as 55% and in support of his evidence, he has marked Ex.P6, the Disability Certificate and Ex.P7, the Xray. 14. As such, the Commissioner on considering the documentary evidence on record and also considering the evidence of the Doctor, as well as the nature of work being done by the applicant, and on seeing the applicant held that the applicant being a labourer would not be in a position to do this work after the accident, as it was evident that the applicant had totally lost his earning capacity due to injuries sustained in the accident and accordingly held that the percentage loss of his earning capacity was 100%. 15. As such, the Commissioner taking the age of applicant as 55, his income as Rs.2,768/- and percentage of loss of earning capacity as 100%, adopted a multiplier of 135.56 and assessed the compensation as 60/100 X Rs.2,768/-X 135.56 X 100/100 = Rs.2,25,138/-. 15. As such, the Commissioner taking the age of applicant as 55, his income as Rs.2,768/- and percentage of loss of earning capacity as 100%, adopted a multiplier of 135.56 and assessed the compensation as 60/100 X Rs.2,768/-X 135.56 X 100/100 = Rs.2,25,138/-. On scrutiny of Ex.P3, the Group Insurance Policy issued by the second opposite party, it is seen that the first opposite partys tractor had been insured with the second opposite party and that premiums had also been paid by the first respondent to extend insurance coverage to the labourers working under him, and also that the policy was valid at the time of accident. Accordingly, the Commissioner held the second opposite party liable to pay the total compensation assessed by him and accordingly directed the second opposite party to deposit the entire award of Rs.2,25,138/-, into the credit of the W.C.No.448 of 2003, on the file of Commissioner for Workmens Compensation, Deputy Commissioner of Labour, Salem, within a period of 30 days from the date of its Order, failing which, an additional interest of 9% per annum on the award amount would have to be paid from the date of accident till the date of payment by the second opposite party of the compensation. 16. The learned counsel appearing for the appellant has contended that the lower Court has grossly erred in awarding compensation on the basis of 100% loss of earning capacity without any specific independent medical opinion for the same, when the disability assessed is only 55%. It has also been pointed out that the jurisdiction of the Lower Court under the Workmens Compensation Act is to fix the loss of earning capacity on the basis of medical practitioners assessment and should not be contrary to the same. It has also been contended that the Lower Court had failed to appreciate that even the disability assessed at 55% for neurological problems by an Orthopaedic Surgeon is excessive and hence the award of compensation on the basis of 100% loss of earning capacity is an abuse of the powers under Workmens Compensation Act. 17. It has been contended that the amount awarded is highly excessive and unreasonable and the learned counsel appearing for the appellant has raised the following substantial questions of law for consideration namely: 1. 17. It has been contended that the amount awarded is highly excessive and unreasonable and the learned counsel appearing for the appellant has raised the following substantial questions of law for consideration namely: 1. Whether the award is not excessive and in erroneous exercise of jurisdiction by fixing percentage loss of earning capacity at 100% without specific medical evidence in that regard when the available medical evidence is that there is only 55% disablement? 2. Whether the DCL is entitled to fix a grossly high percentage loss of earning capacity without any supporting medical evidence contrary to the assessment of disablement by medical expert? 3. Whether the award is not unreasonable and liable to be set aside on account of excessive loss of earning capacity being considered by the DCL without expert evidence for the same? 18. Learned counsel appearing for the first respondent argued that due to the accident the claimants neck bone has been dislocated and his legs have become paralysed and hence the claimant is unable to feed himself by using his hand. Supporting these injuries, the Doctor was examined as PW2. The evidence of PW2 corroborated the evidence of PW1 as regards injuries. 19. Considering the facts and circumstances of the case and after hearing the arguments advanced by the learned counsels for their respective parties, this Court is of the view that there is no error in the award granted by the Deputy Commissioner of Labour, Salem in his Order dated 04.10.2004, made in W.C.No.448 of 2003. Further, the award has been granted by the Deputy Commissioner of Labour after physical verification of the claimant. Hence, the Court confirms the award dated 04.10.2004, in W.C.No.448 of 2003, passed by the Commissioner for Workmens Compensation, Deputy Commissioner of Labour, Salem, as it is found to be equitable and fair. 20. As the accident happened in the year 2003, it is open to the claimant/first respondent to withdraw the entire compensation amount lying to the credit of the W.C.No.448 of 2003, passed by the Commissioner for Workmens Compensation, Deputy Commissioner of Labour, Salem, after observing necessary formalities before the Court concerned. 21. In the result, the above Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 04.10.2004, in W.C.No.448 of 2003, passed by the Commissioner for Workmens Compensation, Deputy Commissioner of Labour, Salem, is confirmed. There is no order as to costs.