Judgment The applicant in W.C.No.210 of 2004 assailing the impugned order dated 21.06.2005 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Hyderabad filed this C.M.A. seeking enhancement since he was awarded only Rs.3,02,803/-though he claimed a total compensation of Rs.5,00,000/-for the grievous injuries and fractures sustained by him in the accident out of and during the course of employment with opposite party No.1. 2. The parties hereinafter referred to as they arrayed in the W.C. 3. The brief facts of the case of the applicant are that he was working as driver of auto trolley bearing No. AP 29 T 2193 belonging to opposite Party No.1 and he was paid monthly salary at the rate of Rs.4,000/-; that on 31.08.2004, while he was proceeding in the said auto trolley from Hyderabad towards Vijayawada, at about 3.30 p.m., near Toopranpet village, a lorry was coming in high speed and was trying to overtake a bus and he tried to avoid head on collision with the said vehicle and took the auto trolley to the extreme left side and in that process, the auto trolley fell down, as a result, he sustained a crush injury to his left leg and a head injury besides fractures to his right ankle and that P.S. Choutuppal registered a case in Crime No.140 of 2004 and he was shifted to Osmania General Hospital, Hyderabad, where the doctors suggested him that his left leg is to be amputated because of the injuries sustained to his left tibia. The applicant and his parents had opposed for such amputation, and as such, he was discharged from Osmania General Hospital and was admitted in Anurag Orthopaedic Multi Speciality Hospital, where he was operated and nails and rods were inserted into his leg; that for the treatment he had incurred an expenditure of Rs.1,25,000/-and he has to further spend Rs.30,000/-to Rs.50,000/-towards medical expenses and that he has taken those amounts from his relatives and friends. Because of the fractures, his life became miserable as he is unable to walk, sit, fold his leg, squat and attend to his nature calls and is limping while walking and the movements of his left leg are restricted. The doctors informed him that he is unable to drive, and thus stated he has suffered 100% loss of earning capacity. Because of the fractures, his life became miserable as he is unable to walk, sit, fold his leg, squat and attend to his nature calls and is limping while walking and the movements of his left leg are restricted. The doctors informed him that he is unable to drive, and thus stated he has suffered 100% loss of earning capacity. The accident arose out of and in the course of his employment with opposite party No.1. He was aged about 21 years at the time of the accident. Opposite party No.1 visited him in hospital and informed him that the auto trolley was insured with opposite party No.2. Opposite party No.1 is the registered owner of the auto trolley and opposite party No.2 is the insurer, and as such, he claimed that both the opposite parties are jointly and severally liable to pay a compensation of Rs.5,00,000/-. 4. Opposite Party No.1 filed her counter stating that there is no dispute with regard to occurrence of the accident, narration of the accident, employment of the applicant, registration of a case by the police and his treatment in Osmania General Hospital. It is also stated that the claim of the applicant that he suffered loss of earnings at 100% has to be substantiated by filing necessary documents. It is denied that the applicant was paid Rs.4,000/-per month towards salary/wages and his age was 21 years. It is stated that she has paid Rs.3,000/-towards medical expenses to the applicant in addition to his wages. It is further stated that the auto trolley was insured with opposite party No.2 and opposite party No.2 is liable to pay compensation, and as such, the petition may be dismissed against opposite party No.1. 5. Opposite party No.2 filed its counter denying the averments made in the claim petition. It is stated that the applicant has not filed any documents to show that he worked as driver of the auto trolley bearing No. AP 29 T 2193 belonging to opposite party No.1, the occurrence of the accident out of and during the course of employment with opposite party No.1, he was aged 21 years at the time of the accident and he was paid salary/wages at Rs.4,000/ per month besides batta. It is denied that the accident occurred and the applicant sustained injuries, hospitalised and subsequent disablement and medical expenditure incurred by him. It is denied that the accident occurred and the applicant sustained injuries, hospitalised and subsequent disablement and medical expenditure incurred by him. The applicant has not filed any documents to show that he suffered 40% permanent disability and 100% loss of earning capacity. 6. Based on the rival pleadings, the trial Court framed the following points for consideration. 1. Whether the applicant, Sri R. Krishna, met with an accident on 31.8.2004, which arose out of and in the course of his employment as a driver on the auto trolley bearing No. AP 29 T 2193 in the employment of the 1st opposite party and sustained injures. 2. If yes, what is the percentage of physical disability suffered by the applicant and consequent loss of earning suffered by the applicant? 3. Who are liable to pay compensation to the applicant? And 4. What is the amount of compensation entitled by the Applicant? 7. On behalf of the applicant, applicant himself got examined as AW.1 and also got examined an Orthopaedic Surgeon as AW.2 and got marked Exs.A.1 to A.15. On behalf of opposite party No.1, her husband was examined as RW.1 and Ex.B.1-original insurance policy and Ex.B.2-authorisation letter were marked and on behalf of opposite party No.2, no oral evidence was let in, however, Ex.D.1-copy of insurance policy was marked. 8. The trial Court, taking into consideration the evidence of AW.1, AW.2 and RW.1 and Exs.A.1 to A.15, B1, B2 and D.1, and the submissions made on either side, held that the accident occurred on 31.08.2004 and the applicant was driver of the auto trolley bearing No.29 T 2193 at the time of the accident, which was insured with opposite party No.2 and the accident occurred out of and in the course of his employment with opposite party No.1 and he sustained injuries in the accident. As such, opposite party No.1 and opposite party No.2 are jointly and severally liable to pay a compensation of Rs.3,02,803/-. Being not satisfied with the compensation awarded by the trial Court, the applicant filed this Civil Miscellaneous Appeal. 9. Heard the learned counsel for the applicant (appellant herein) and the learned standing counsel for opposite party No.2-insurance company and perused the material on record. 10. Being not satisfied with the compensation awarded by the trial Court, the applicant filed this Civil Miscellaneous Appeal. 9. Heard the learned counsel for the applicant (appellant herein) and the learned standing counsel for opposite party No.2-insurance company and perused the material on record. 10. It is the case of the applicant that the trial Court committed an error in not considering the loss of earnings at 100% as he sustained crush injury to left leg and the same is evident from the testimony of AW-2 – orthopaedic surgeon who has stated in clear terms that because of crush injury suffered by him, he is unfit to drive any vehicle. A perusal of Exs. A.11 and A.12 discloses that the applicant has suffered bone deep crush injury to his left leg below knee viz., Grade III compound comminuted fracture of both bones left leg middle 1/3; that both bones of left leg were fractured and he was treated with external fixation, and skin grafting was done and the same is resulted in shortening of leg by 1 ½ inch. So far as the earning capacity of the applicant at the time of accident is concerned, it is in the evidence of RW.1 that they were paying him Rs.4,000/-per month towards salary/wages to the applicant, however, the trial Court failed to accept the same and erroneously fixed his monthly earnings at Rs.3004/-by pressing the G.O. Ms. No.30 LET &F (Lab-11) dated 27.7.2000 into service. The G.O. is to be applied only in the absence of any evidence or other material on record, however, in the instant case there is ample evidence on record to show that the applicant was earning Rs.4,000/-per month salary/wages. Therefore, it is contended that the trial Court has manifestly committed an error in reducing his monthly earnings and that the trial Court is not justified in dong so. 11. It is the case of opposite party No.2 -insurance company that the trial Court after taking into consideration the evidence and the facts and circumstances of the case, has awarded compensation which is more than the just compensation and as such, there are no merits in the appeal and the same is liable to be dismissed. 12. 11. It is the case of opposite party No.2 -insurance company that the trial Court after taking into consideration the evidence and the facts and circumstances of the case, has awarded compensation which is more than the just compensation and as such, there are no merits in the appeal and the same is liable to be dismissed. 12. The trial Court after taking into consideration the evidence of AW.1, RW.1 and RW.2 and Exs.A.1 to A.15, B.1 and D.1, has come to the conclusion that the applicant suffered 40% permanent disability and he also suffered loss of earning capacity at 75%. Having regard to the evidence on record and the facts and circumstances of the case, this Court is of the view that the trial Court has rightly assessed that the applicant suffered 40% permanent disability and loss of earning capacity at 75%. However, the trial Court ought not to have applied G.O. Ms. No.30 LET &F (Lab-11) dated 27.7.2000 in the instant case when the evidence of AW.1 is categorically substantiated by RW.1 that the applicant was paid a salary of Rs.4,000/-per month. It is no doubt true that there is no documentary evidence on record to show that the applicant was paid Rs.4,000/ per month towards salary/wages In such a situation, the trial Court at least ought to have fixed the earnings of the applicant at Rs.3,500/-(wages + batta) per month, having regard to the facts and circumstances of the case, which is in the opinion of this Court is just and reasonable and would meet the ends of justice. Therefore, the wages/salary/bata of the applicant has to be fixed at Rs.3,500/-per month and the same is hereby enhanced. Thus the applicant is entitled to a total compensation of Rs.3,52,800/-(Rs.3,500 X 60/100 X 75/100 X 224.00). 13. In the result, the appeal is partly allowed enhancing the total compensation from Rs.3,02.803/-to Rs.3,52,800/- (Rupees three lakhs fifty two thousand eight hundred) only. No order as to costs.