JUDGMENT : M. Venkata Ramana, J. 1. This Civil Miscellaneous Appeal is directed against the order in W.C. No. 34 of 2005 dated 05.05.2007 of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-II Circle, Guntur. 2. The appellant was the applicant and whereas the respondents were the respondents before the Commissioner for Workmen's Compensation Act ('Commissioner', for short). 3. The appellant filed an application before the Commissioner to award compensation of Rs. 2,50,000/- stating that he was the driver of the lorry AP 7T/5006 belonging to the 1st respondent and that on 26.11.2003, an accident occurred at about 3.00 a.m. when he was driving the same, near Kavali. The manner of accident according to the appellant was that a lorry AP 16 X/5981 coming from opposite direction dashed against the lorry being driven by him resulting in severe grievous injuries to him. Thereafter, according to the appellant, he was taken to Government Hospital, Kavali and later to Government General Hospital, Guntur for treatment. A case in Cr. No. 135 of 2003 was registered in Kavali Rural Police Station in respect of this accident. 4. The appellant also claimed that after he was discharged from Government General Hospital, Guntur he had further treatment in the hospital of Sri Y. Lakshmna Swamy, Orthopedic surgeon at Guntur. He had undergone surgery to both his legs and steel rods were inserted. Thus, he explained his disability and now claimed it at 100%. 5. Basing on the salary at Rs. 3,500/- per month apart from batta of Rs. 500/- to Rs. 600/- per month, which he used to get as driver of this lorry, the appellant claimed that because of the fractures and consequent disability he is unable to attend to any other work. He claimed compensation payable by the respondents contending that the offending lorry was insured with the 2nd respondent by the date of the accident. 6. The 1st respondent did not appear before the Commissioner and whereas the 2nd respondent alone contested this matter before the Commissioner denying the entire case set up by the appellant including the manner of accident and extent of disability suffered by the appellant, while questioning the quantum of compensation. 7. The learned Commissioner by a very cryptic order, basing on the evidence by the appellant as A.W.1, who relied on Ex. A1 to Ex. 7. The learned Commissioner by a very cryptic order, basing on the evidence by the appellant as A.W.1, who relied on Ex. A1 to Ex. A10 apart from the evidence of two more witnesses A.W.2 and A.W.3, held that the appellant is entitled to Rs. 1,01,958/- towards compensation. In this process, the Commissioner considered the disability suffered by the appellant at 30% basing on the evidence of A.W.3 Doctor, age of the appellant at 50 years and his wages at Rs. 3,700/-. 8. Initially, by an order dated 05.05.2007, upon improper application of relevant factor, compensation of Rs. 1,38,515/- was awarded. It was later corrected issuing errata on 14.09.2007 quantifying the compensation as stated above. 9. Dissatisfied with the quantum of compensation so awarded, the appellant has preferred this appeal. Substantial questions of law are stated in the grounds of appeal. 10. Sri Siva Ramakrishnaiah, learned counsel for Sri N. Subba Rao, learned counsel for the appellant, and Smt. A. Jayanthi, learned Standing Counsel for 2nd respondent, addressed arguments in this appeal. 11. Now, the following points arise for determination: 1. Whether considering the permanent partial disability at 30%, having regard to the nature of injuries suffered by the appellant and their effect is proper and if it is 100%? 2. Whether compensation awarded by the Commissioner in the circumstances is just and reasonable? 3. To what relief? POINT No. 1:- 12. The accident in question occurred on 26.11.2003 at about 3.00 a.m., when the appellant was driving the lorry AP 7T/5006 and dashed against the opposite lorry AP 16X/5981 near Kavali. Fractures suffered by the appellant in this accident to both the lower limbs and consequent treatment he had at different hospitals, are brought out from the material placed by the appellant. The 2nd respondent did not question the findings recorded by the Commissioner in this respect. Thus, they have become final. 13. A.W.3 Dr. A. Srinivas Rao, an orthopedic surgeon in Sanjeevi Orthopaedic and Physiotherapy center at Guntur, performed surgery to the appellant on 07.12.2003 for the fractures to right and left tibia as well as fracture to pubic rami on right side. His evidence on record is that these surgeries involved screw fixation to right tibia, apart from skin grafting above knee. The effect of these fractures, though they were united later on, according to A.W.3 Dr. His evidence on record is that these surgeries involved screw fixation to right tibia, apart from skin grafting above knee. The effect of these fractures, though they were united later on, according to A.W.3 Dr. A. Srinivas Rao, is that the appellant cannot squat and sit in cross legged position. His opinion further reflected that the appellant cannot carry on his duties as driver and cannot lift weights. The appellant has also restriction of movements of both knees after 90 degrees and thus A.W.3 Dr. A. Srinivas Rao opined that the appellant suffered a partial permanent disability at 30% to 35%. 14. In cross-examination for the 2nd respondent, A.W.3 stated that all the joints stood united while confirming that movements of the appellants stood restricted. He also opined that there is possibility of recovery if the appellant followed physiotherapy. However, A.W.3 Dr. A. Srinivas Rao, stated that the appellant could run business sitting in a shop. 15. The appellant as A.W.1 deposed that he is not in a position to walk without assistance of others since both the legs have suffered shortening and that they suffered bend. He stated in cross-examination that the wounds suffered by him are not healed. 16. Basing on the testimony of A.W.3 Dr. A. Srinivas Rao, the Commissioner considered that the disability would affect his earning capacity as a loss, at 30%. 17. This finding is seriously assailed by the appellant and Sri Siva Ramakrishnaiah, learned counsel for the appellant, strenuously contended that the disability suffered by the appellant stood at 100% which is clear from the testimony of A.W.3 Dr. A. Srinivas Rao itself. In this context the learned counsel for the appellant relied on Pasupuleti Ramarao vs. Pothinaboyina Durgarao and others: 2002 (2) ALD 752. Considering that the claimant suffered amputation to his right thumb and suffered injuries to his right knee, in the given facts and circumstances, when the total disability was 60% opined by the Doctor, loss of earning capacity was treated at 100%, in the above ruling. 18. Smt. A. Jayanthi, learned Standing Counsel for the 2nd respondent, while referring to the testimony of A.W.3-Dr. A. Srinivas Rao, contended that his evidence did not make out that the appellant suffered such disability which is referable to loss of earnings at 100%. Relying on the evidence of A.W.3-Dr. 18. Smt. A. Jayanthi, learned Standing Counsel for the 2nd respondent, while referring to the testimony of A.W.3-Dr. A. Srinivas Rao, contended that his evidence did not make out that the appellant suffered such disability which is referable to loss of earnings at 100%. Relying on the evidence of A.W.3-Dr. A. Srinivas Rao itself, the learned Standing Counsel contended that the appellant can attend to other work, though not as driver. Thus pointing out that the learned Commissioner had awarded such compensation which is excessive by itself, it is requested not to disturb the same. 19. The version of the appellant that he suffered shortening of his lower limbs is not deposed by A.W.3 Dr. A. Srinivas Rao. It is a crucial factor in this case. Except that the appellant is unable to move his lower limbs freely beyond a level, his evidence did not make out a situation whereby the appellant stood prevented from attending to any other work. Though the consideration in terms of section 2(l) of Workmen's Compensation Act to qualify as total disablement is based on permanent or temporary disablement that incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement, proviso to Section 2(l) of the Workmen's Compensation Act explains the permanent total disablement, being the result of the injuries specified in Part-I and Part-II of Schedule-I. 20. This is not a case where the injuries suffered by the appellant are those described in Part-I or Part-II of Schedule-I. They are non-scheduled injuries and having regard to the fractures suffered by the appellant, they stand within the consonance of Section 4(1)(c)(ii) of Workmen's Compensation Act, on account of the permanent disablement. In such circumstances, the loss of earning capacity should be computed basing on the opinion of qualified medical practitioner, who is under obligation to assess the same in terms of explanation II to Section 4(1)(c) of the Workmen's Compensation Act. The fact that the appellant cannot drive the lorry any more, which he was otherwise capable of on the date of the accident, cannot automatically lead to inference that it is 100% disability suffered by him. It is settled proposition that every permanent or partial disablement cannot amount to result in permanent loss of earning capacity or to quantify it at 100%. 21. It is settled proposition that every permanent or partial disablement cannot amount to result in permanent loss of earning capacity or to quantify it at 100%. 21. Even otherwise, there should be necessary evidence on record for this purpose. When the material on record is considered, the evidence adduced by the appellant himself to certain extent is not supporting his version as discussed above. Possibility of attending to other avocations, as seen from the evidence of A.W.3 Dr. A. Srinivas Rao is very much seen for the appellant. This is a factor of inhibition to assume loss of earning capacity at 100% as contended for the appellant. In the absence of better material in as much as A.W.3 Dr. A. Srinivas Rao assessed the disability at 30% to 35%, basing on the attendant factors as per doctor's evidence that the appellant can attend to other work, it is desirable to treat it at 35%. Paucity of evidence is a serious factor to accept the version of the appellant that the loss of earning capacity is 100% on account of the fractures suffered in this accident. 22. Thus, the loss of earning capacity should be taken at 35% in this case. 23. Thus this point is answered. POINT No. 2:- 24. Basing on the same parameters applied by the Commissioner viz., wages at Rs. 3,700/-, 153.09 being the appropriate factor applicable to the age of the appellant at 50 years on the date of the accident and loss of earning capacity at 35%, the compensation arrived at is Rs. 1,18,950-93 paise, which is rounded off to Rs. 1,18,951/-. 25. Another contention advanced for the appellant is failure of the Commissioner to award interest on the compensation amount. In terms of Section 4-A(3) of the Workmen's Compensation Act, the appellant is entitled for interest, particularly when the 1st respondent, as his employer did not pay compensation within one month from the date when it fell due. The date on which it fell due is the date of the accident viz., 26.11.2003. The material on record is silent as to whether the 1st respondent paid any compensation to the appellant whose version is that he was never paid any money for this purpose. Therefore, the 1st respondent is under an obligation to pay this interest. The date on which it fell due is the date of the accident viz., 26.11.2003. The material on record is silent as to whether the 1st respondent paid any compensation to the appellant whose version is that he was never paid any money for this purpose. Therefore, the 1st respondent is under an obligation to pay this interest. In as much as the contract of insurance was subsisting between the 1st respondent and the 2nd respondent by the date of the accident in question, the liability of the 1st respondent has to be indemnified by the 2nd respondent. Consequently, it is also liable to satisfy this obligation to pay interest. If it is awarded at 9% p.a. from 26.11.2003 on the amount of compensation viz., Rs. 1,18,951/- till such compensation is deposited before the Commissioner, it is just and appropriate and meets the ends of justice. 26. Therefore, the order of the Commissioner requires modification, as discussed supra enhancing compensation awarded by the Commissioner slightly. Thus, this point is answered. POINT No. 3:- 27. In view of the findings on points 1 and 2, this Civil Miscellaneous Appeal has to be allowed in part and the order of the commissioner should be modified in terms of what is stated in point No. 2. 28. In the result, the Civil Miscellaneous Appeal is allowed in part directing the respondents 1 and 2 to pay compensation of Rs. 1,18,951/- with proportionate costs thereon with interest at 9% p.a. on Rs. 1,18,951/- from 26.11.2003 till the amount stood deposited before the Commissioner for Workmen's Compensation Act and Assistant Commissioner of Labour-II Circle, Guntur. The amount paid to the appellant out of the amount already deposited before the Commissioner shall be deducted out of the amount payable and the Commissioner shall release the balance compensation to the appellant on his application without insisting for any security. No costs. As sequel thereto, pending miscellaneous petitions, if any, shall stand closed. Interim orders, if any, shall stand vacated.