Judgment : 1. The National Insurance Company being aggrieved by the Order dated 25-2-2009 made in WCA/NF/SR No.23 of 2007 passed by the Labour Officer and Commissioner for Workmen’s Compensation, Hassan, has filed this appeal. 2. The 1st respondent has filed the claim petition before the Commissioner for Workmen’s Compensation, Hassan contending that he was working as a loader/unloader in the lorry bearing registration No.AP-02-V-4024 belonging to the 2nd respondent. On 2-1-2007 on the instructions of the owner of the vehicle after loading the fertilizers proceedings towards Gundigere-Bannahalli Road, due to rash and negligent driving of the said lorry by its driver, the said vehicle met with an accident and the claimant has sustained injuries to his right leg. He was admitted to the Sakleshpur Hospital and taken treatment therein. He has contended that due to the accident and fracture of the right leg, he cannot work as a loader/unloader. Prior to the accident, he was getting salary of Rs.4,000/- per month and Rs.100/- of bata per day. In view of the accident, he cannot work as a loader/unloader and sought for compensation. 3. In pursuance to the notice issued by the Commissioner for Workmen Compensation, the owner of the lorry appeared before the Court and admitted that the claimant was working as a loader/unloader in the lorry. 4. The insurer has filed their objections to the claim petition contending that no document has been produced before the Commissioner for Workmen’s Compensation, Hassan to show that the claimant is the employee under the owner of the vehicle and no document has been produced to show that the owner of vehicle was paying salary of Rs.4,000/- per month and bata Rs.100/- per day. Further, no document has been produced to show that the accident occurred during the course of employment and the claimant has sustained injuries. The claimant was travelling in the said lorry as a gratuitous passenger. Though the vehicle is covered by the insurance, the insurer is not liable to pay the compensation and sought for dismissal of the claim petition. 5. On the basis of the pleadings of the parties, the Commissioner for Workmen’s Compensation has framed necessary issues. 6. The claimant in order to prove his case examined himself as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.5. He has examined the doctor who has treated him as P.W.2. 5. On the basis of the pleadings of the parties, the Commissioner for Workmen’s Compensation has framed necessary issues. 6. The claimant in order to prove his case examined himself as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.5. He has examined the doctor who has treated him as P.W.2. The owner of the vehicle has not examined any witnesses. On behalf of the Insurer, Sri K.N. Ramachandra, the Development Officer was examined as R.W.1. The claimant in his evidence deposed that he was working as a loader/unloader in the lorry belonging to the 1st respondent. On 2-1-2007 in the road traffic accident at Gundigere-Bannahalli Road, he has sustained injuries and fracture of right leg during the course of employment due to the rash and negligent driving of the said lorry. In view of the fracture of right leg and malunion of the said bone, he cannot work as a loader/unloader. He was cross-examined by the insurer, nothing contrary has been elicited in the cross-examination. The FIR, Spot Mahazar, Charge-sheet, Wound Certificate and legal notice were marked as Ex.P.1 to Ex.P.5. 7. The doctor-P.W.2 in his evidence deposed that due to the road traffic accident occurred on 2-1-2007, the claimant has sustained the fracture of right femur, he has undergone surgery. Inspire of the treatment, there is a malunion of the right femur. In view of that, he cannot work as a loader/unloader and he assessed the loss of earning capacity to an extent of 40%. He got marked X-ray as Ex.P.6 and Ex.P.7. In the cross-examination, he has reiterated that due to the said accident, the claimant has sustained injuries and suffered disability to an extent of 40%. The R.W.1 in his evidence reiterated his statement of objections contending that the claimant was travelling as an unauthorised passenger in the goods vehicle, he is not entitled for any compensation from the insurer. 8. On the basis of the documents produced by the parties, oral and documentary evidence, the Commissioner for Workmen’s Compensation held that there is a relationship of master and servant between the owner of the vehicle and the claimant and due to the rash and negligent driving of the said lorry by its driver, the claimant has sustained injuries on 2-1-2007. On the basis of the documents produced by the parties, oral and documentary evidence, the Commissioner for Workmen’s Compensation held that there is a relationship of master and servant between the owner of the vehicle and the claimant and due to the rash and negligent driving of the said lorry by its driver, the claimant has sustained injuries on 2-1-2007. The FIR, Spot Mahazar, Charge-sheet and other documents clearly disclose that the claimant has sustained injuries in the road traffic accident that occurred on 2-1-2007 and the claimant is entitled for the compensation. With regard to the quantum of compensation is concerned, the doctor who has treated the claimant in his evidence deposed that in view of the fracture of right femur and malunion of the same, implanted inside the right leg has broken, the claimant cannot work as a loader/unloader and he cannot life the heavy objects on clinical examination of the claimant, assessed the loss of earning capacity to the extent of 40%. 9. The Commissioner for Workmen’s Compensation taking into consideration the income of the loader/unloader as Rs.3,500/- and the loss of earning capacity to an extent of 50% and applying the relevant factor of 178.49, awarded the compensation of Rs.1,87,415/- with 12% interest from the date of accident. The Insurer being aggrieved by the order passed by the Commissioner for Workmen’s Compensation, filed this appeal. 10. Sri A.M. Venkatesh, the learned Advocate appearing for the appellant contending that the order passed by the Commissioner for Workmen’s Compensation is contrary to law. No material has been produced before the Commissioner for Workmen’s Compensation to show that the claimant was working as a loader/unloader under the 2nd respondent. However, in the FIR, the claimant has mentioned that he was working under Sri Shivakumar. Hence, there is no relationship of master and servant between the owner of the vehicle and the claimant. The fastening of the liability of the Insurance Company is contrary to law. Further, he also contended that the injury sustained by the claimant is an unscheduled injury under Section 4(1)(c)(ii) of Workmen’s Compensation Act. The qualified Medical Practitioner has to assess the loss of earning capacity of the claimant. The fastening of the liability of the Insurance Company is contrary to law. Further, he also contended that the injury sustained by the claimant is an unscheduled injury under Section 4(1)(c)(ii) of Workmen’s Compensation Act. The qualified Medical Practitioner has to assess the loss of earning capacity of the claimant. In the instant case, though the doctor has assessed the loss of earning capacity to an extent of 40%, the Commissioner for Workmen’s Compensation without any basis taken the loss of earning capacity to an extent of 50% which is contrary to law and sought for setting aside the same. 11. On the other hand, Smt. Kavitha H.C., the learned Advocate appearing for the 1st respondent argued in support of the award passed by the Commissioner for Workmen Compensation contended that though the doctor who has treated the claimant has assessed the loss of earning capacity to extent of 40%, the Commissioner for Workmen’s Compensation taken into consideration the real fact. In view of the fracture of right femur, he cannot work as a loader/unloader and he cannot walk. In view of that, taken into consideration the loss of earning capacity to an extent of 50% and awarded the compensation. Further, in view of the judgment of the Hon’ble Supreme Court, he is entitled for the interest from the date of the accident and sought for dismissal of the appeal. 12. I have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence produced by the parties. 13. Having heard the learned Counsel for the parties. The only point that arises for consideration in this appeal is: “Whether the order passed by the Commissioner for Workmen’s Compensation is requires any modification?” 14. It is not in dispute that the claimant has sustained injury in the road traffic accident that occurred on 2-1-2007. On the basis of the records produced by the claimant, it is established that the claimant was working as loader/unloader in the said lorry. There is a relationship of master and servant between the owner of the vehicle as well as the claimant. Though the insurer contended that the claimant was travelling in a lorry not as a loader and loader, he was travelling as a gratuitous passenger. Hence, the insurer is not liable to pay the compensation. 15. There is a relationship of master and servant between the owner of the vehicle as well as the claimant. Though the insurer contended that the claimant was travelling in a lorry not as a loader and loader, he was travelling as a gratuitous passenger. Hence, the insurer is not liable to pay the compensation. 15. The claimant in order prove that he was working as a loader/unloader in the said lorry, he has examined himself and he examined co-loaders who are working in the said lorry. Further, the owner of the vehicle in his written statement admitted that the claimant was working as loader/unloader in the said lorry. The FIR, charge-sheet and other documents clearly disclose that at the time of the accident, the claimant was working as loader/unloader in the said lorry. Except any stray sentence in FIR, the name of Shivakumar nowhere mentioned. Hence, I held that the claimant is the workman under the 2nd respondent and he is entitled for the compensation. With regard to the quantum of compensation is concerned, there is some substance in the contentions taken by the appellant. Though the doctor who has treated the claimant in his evidence deposed that the loss of earning capacity to an extent of 40%, the Commissioner has no jurisdiction to take into consideration the loss of earning capacity to an extent of 50%. No additional document has been produced before the Commissioner for Workmen’s Compensation. In the absence of the same, the Commissioner cannot assess the loss of earning capacity to an extent of 50%. Hence, the award passed by the Commissioner requires modification. 16. In respect of interest is concerned, the Division Bench of this Court in the latest judgment made in MFA No.5353 of 2007 and other connected matters dated 15-2-2012 clearly held that the claimant is entitled for the compensation from the date of passing of the award. In the instant case, the Commissioner has warded interest from the date of the accident. To that extent, the award passed by the commissioner requires modification. Taking into consideration the income of the claimant at Rs.3,500/- per month, taking into consideration the loss of earning capacity to an extent of 40% and applying relevant factor of 178.49, the claimant is entitled for compensation of Rs.1,49,931/- as against Rs.1,87,415/- awarded by the Commissioner for Workmen’s Compensation. To that extent, the award passed by the commissioner requires modification. Taking into consideration the income of the claimant at Rs.3,500/- per month, taking into consideration the loss of earning capacity to an extent of 40% and applying relevant factor of 178.49, the claimant is entitled for compensation of Rs.1,49,931/- as against Rs.1,87,415/- awarded by the Commissioner for Workmen’s Compensation. Further, the claimant is entitled for the interest at 12% from 30 days after passing of the award. Accordingly, I pass the following.— ORDER (i) The appeal is allowed in part. (ii) The claimant is entitled for the compensation of Rs.1,49,931/- as against Rs.1,87,415/- awarded by the Commissioner, with 12% interest from 30 days after passing of the award. (iii) The amount in deposit be transferred to the Commissioner for Workmen’s Compensation, Hassan. (iv) Excess amount be refunded to the appellant.