JUDGMENT : The Insurance Company, which is directed to deposit a sum of Rs.1,97,892/- as compensation in discharge of its statutory obligation under the provisions of the Employees Compensation Act, 1923, to the claimant-respondent in WCA/NF/77/2010 dated 06.04.2011 by the Labour Officer & Workmen Compensation Commissioner, Gadag District, Gadag (for short ‘Commissioner’) has filed this appeal impugning such judgment and award. 2. The claimant-respondent No.1 undisputedly was working as a driver with Sri Basayya (respondent No.2), the registered owner of lorry bearing No. KA-22-4062 ON 15.02.2010. The claimant-respondent No.1 met with accident while driving the said lorry in the course of his employment. The claimant-respondent no.1 suffered injuries, viz., fracture to his left wrist and left radius. He filed claim petition under the Employees Compensation Act, 1923, (for short, “the E.C. Act”) with the Commissioner, along with the Cleaner and others, who were also traveling in the vehicle as employees. These claim petitions were taken up for common trial by the Commissioner. The claimant-respondent No.1 examined himself, and also examined Dr. K.S. Kantesh, an Orthopedic Surgeon, in support of his claim petition. The Doctor deposed that he had examined the claimant-respondent No.1. The claimant suffered 43% permanent physical impairment of the upper limb. In the cross examination, however, stated that he could not assess the functional disability. The Commissioner assessed the loss of earning capacity at 38%, and assessed the income of the claimant-respondent No.1 at Rs.4,000/-per month and awarded compensation of Rs.1,97,082/-applying the relevant factor based on the age of the claimant-respondent No.1. 3. The learned counsel for the Insurance Company contended that in the case of injury not specified in Schedule 1 of the E.C. Act, in view of the provisions of Section 4(1)(c)(2) of the E.C. Act compensation payable should be such portion of the compensation payable in the case of permanent total disbursement as is proportionate to the loss of earning capacity as assessed by a qualified medical practitioner, because of the injuries. The Doctor, who has been examined in support of the claimant, is categorical that he is unable to assess the functional disability. Despite this evidence, the Commissioner has assessed the loss of earning capacity, without any reason, at 38%. 4. The learned counsel for the claimant-respondent no.1 contended that the claimant-respondent no.1, undisputedly is a driver of a heavy vehicle and he has suffered wrist injuries of the left hand. Despite this evidence, the Commissioner has assessed the loss of earning capacity, without any reason, at 38%. 4. The learned counsel for the claimant-respondent no.1 contended that the claimant-respondent no.1, undisputedly is a driver of a heavy vehicle and he has suffered wrist injuries of the left hand. As such, the assessment of loss of earning is justified. The Commissioner has assessed the income of the claimant respondent no.1, despite specific evidence as regards his avocation as a driver of a heavy vehicle, at Rs.4,000/-, when it is undisputed that a sum of Rs.6,000/-would be more appropriate given the provisions of the E.C. Act mainly as of January 2010. 5. In the light of the rival submissions, the following substantial question arises for consideration. 1. Whether the Commissioner could have assessed the loss of earning capacity at 38% in the light of the provisions of Sec. 4(1)(c)(2) of the Employees Compensation Act ignoring the evidence on record? 6. It is undisputed that claimant-respondent no.1 is a driver licenced to drive heavy vehicle like a lorry and he was in employment with the owner of the insured vehicle. He suffered injuries to his left wrist in the accident. As regards disablement that he has suffered because of the injuries to his left wrist, he has examined Dr.K.S. Kantesh, an Orthopedic surgeon, who has stated that the claimant-respondent no.1 has suffered 43% permanent physical impairment of left upper limb. However, he is categorical in his cross-examination that he can not assess functional disablement. 7. The provisions of Sec. 4(1)(c)(2) of the Act, insofar as the permanent partial disablement resulting from injuries that are not specified in Schedule 1 stipulates that such part of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity resulting from the injury suffered should be paid as compensation, and that this loss of earning capacity should be as assessed by a qualified medical practitioner. If a qualified medical practitioner has assessed the loss of earning capacity qua the permanent partial disablement suffered, unless such assessment is perverse or unreasonable, the Commissioner should rely upon such assessment. If a qualified medical practitioner has assessed the loss of earning capacity qua the permanent partial disablement suffered, unless such assessment is perverse or unreasonable, the Commissioner should rely upon such assessment. When such assessment by a medical practitioner is not available on record, the Commissioner will have to reasonably assess the loss of earning capacity with reference to the injuries resulting in permanent partial disablement and the nature of work done by the injured. However, in the present case the Commissioner has taken the loss of earning capacity at 38% only because the Doctor has assessed the permanent physical impairment of the left upper limb at 43% without reference to the nature of work. This assessment is not backed by any reason. 8. The claimant-respondent No.1 is a driver, he has suffered fracture injuries in his left wrist in an accident while in the course of employment. The Doctor has said there is restriction in the wrist and finger movements and therefore, the partial permanent disablement is 15% because of the restriction in the wrist movement, 15% because of the restriction in the movement of finger with 8% for pain moderately interfering with the work. If the impairment is because of the restriction of the wrist/ finger movement, and pain interfering with the work, the loss of earning capacity could reasonably be assessed at 25% as the claimant-respondent No.1 is a driver of a heavy vehicle. Therefore, the substantial question framed is answered in favour of the appellant-insurance company and held that the respondent no.1-claimant is entitled for compensation towards loss of income determined at 25% of the compensation payable for a permanent total disablement. 9. The liability of the Insurance Company to pay compensation to an employee who is injured in the course of employment is under the provisions of the Employees’ Compensation Act in terms of the policy issued. Therefore, the right of the injured workman to receive compensation and the quantum of compensation are to be determined is as per the provisions of the Employees Compensation Act. The income of the injured employee and the loss of earning capacity are parameters for determining the compensation in the case of partial total disablement because of the injuries that are not mentioned in schedule 1 of the Workmen’s Compensation Act. The income of the injured employee and the loss of earning capacity are parameters for determining the compensation in the case of partial total disablement because of the injuries that are not mentioned in schedule 1 of the Workmen’s Compensation Act. Therefore, there must be appropriate assessment of the income of the injured-claimant lest an injured claimant is denied what is statutorily secured. The Commissioner has assessed the income of the injured-respondent no.1 at Rs.4,000/-per month. However, the injured-respondent no.1 was employed as a driver of a heavy vehicle, and his income could be reasonably assessed at Rs.6,000/-as against the maximum of Rs.8,000/-per month as provided for vide the Notification dated 31.05.2010 issued under the provisions of Section 4(1B) of the Employees’ Compensation Act. If the compensation that the claimant-respondent no.1 would be entitled is computed taking the loss of earning capacity at 25% and income at Rs.6,000/-per month the claimant would be entitled to Rs.1,95,290/-, i.e., Reg. income Rs.6,000/-x60/100=Rs.3,600/- Rs.3,600/-x216.91=7,08,876/- Rs.7,08,876/-x25/100 = Rs.1,95,290/- The respondent no.1-claimant is entitled for a total compensation of Rs.1,95,290/-as against Rs.1,97,822/-awarded by the Commissioner. 10. In the light of the aforesaid discussion, the appeal by the Insurance Company is disposed of modifying the award in WCA/NF/77/2010 dated 06.04.2011 passed by the Labour Officer & Workmen Compensation Commissioner, Gadag District, Gadag granting compensation of Rs.1,95,290/-instead of Rs.1,97,822/-, to the claimant-respondent. The insurance company shall be liable to pay this amount along with statutory interest for the period commencing from the expiry of 30 days from the date of accident till the date of deposit of the entire award with this Court. The amount in deposit in this appeal shall be transferred to the jurisdictional Court as of today, for disbursement to the claimant-respondent No.1. The Insurance Company shall deposit the interest as aforesaid, if not already deposited, within six weeks from the date of receipt of a certified copy of this judgment. The office is directed to transmit the lower court records, to the jurisdictional Court as on today, for necessary action.