ORDER : 1. This Civil Miscellaneous Appeal is preferred against the impugned order dated 25.03.2003 in W.C. No. 98 of 2001 on the file of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Guntur. 2. The appellant herein is the applicant and the respondents 1 and 2 herein are Opposite Parties 1 and 2. For the sake of convenience, the parties will be referred as they are arrayed before the learned Commissioner. 3. The case of the appellant, in brief, is that he filed claiming compensation of Rs.3,50,000/- from the opposite parties 1 and 2 for the injuries sustained by him in the accident occurred on 22.05.2001. The applicant was a workman under the Opposite Party No. 1 as driver of the lorry bearing No. AP-9T-4501. By the time of accident, the son of Opposite Party No. 1 was a cleaner of the said lorry. On 22.05.2001 at about 9.00P.M., while the applicant was getting down from the cabin of the lorry, he accidentally slipped, fallen down and sustained injuries including fracture of right calcaneum. Immediately, in the same lorry, he rushed to Guntur and approached Dr. B. Haribabu, Orthopaedist, and thereafter he went to Guntur General Hospital. In spite of long treatment, his right ankle joint movement are restricted and is unable to walk and became crippled due to the injuries. He was aged about 44 years and used to get Rs.4,000/- per month as salary including batta and hire commission. After the accident, his owner paid him Rs.5,000/- to meet urgent medical expenses. He sought for compensation of Rs.3,50,000/- from the opposite parties. 4. The Opposite Party No. 1 filed his counter accepting that the applicant was the driver of the lorry and he sustained injuries during the course of his employment. He received legal notice from the applicant. The lorry was insured with the Opposite Party No. 2, which was in force at the time of accident and that the insurer is liable to pay compensation and prays for dismissal of the claim against him. 5. Opposite Party No. 2 filed their counter, while denying the material averments, inter alia, contended that it is a false claim and no police report was given with regard to the alleged accident. The claim is excessive and prays for dismissal of the claim with costs. 6. 5. Opposite Party No. 2 filed their counter, while denying the material averments, inter alia, contended that it is a false claim and no police report was given with regard to the alleged accident. The claim is excessive and prays for dismissal of the claim with costs. 6. Basing on the above pleadings, the learned Commissioner framed the following issues: (1) Whether the applicant was a workman as per the provisions of the Act and he received personal injuries in an accident arising out of and in the course of his employment? (2) Amount of compensation payable to the applicant? (3) Who are liable to pay compensation? 7. During the course of enquiry, the applicant himself was examined as AW-1 and Dr. S.S.V. Ramana was examined as AW-2. Ex.A.1 to A.9 were marked on behalf of the applicant. P. Srinivasa Rao was examined as RW-1 and Exs.R.1 to R.3 were marked on behalf of the Opposite Parties. 8. Having heard both sides and on appreciation of the material on record, the learned Commissioner granted compensation of Rs.25,000/- under no fault liability against the opposite parties. Feeling aggrieved and dissatisfied with the impugned order, the applicant preferred the present appeal on the following substantial questions of law: (1) Whether the order of the learned Commissioner is sustainable under law on the point of assessing disability without considering the loss of earning capacity for attending the same occupation, which the claimant was doing earlier? (2) Whether the finding of the learned Commissioner that the applicant was negligent, which leads to the disability is correct? (3) Whether the injuries sustained by the applicant is permanent disability due to the fracture of calcaneum on the right ankle thus restricting ankle movement leads to attending the driving job is difficulty? (4) Whether the learned Commissioner ought to have fixed the disability at 100% since the applicant is no fit for doing the driving? 9. Heard the learned counsel on both sides. 10. Though the applicant framed four substantial questions of law in this appeal, in fact, they are all intertwined and can be considered as one: “Whether the order impugned is correct for awarding compensation under no fault liability though the applicant being the driver cannot attend his job as driver?” 11. 9. Heard the learned counsel on both sides. 10. Though the applicant framed four substantial questions of law in this appeal, in fact, they are all intertwined and can be considered as one: “Whether the order impugned is correct for awarding compensation under no fault liability though the applicant being the driver cannot attend his job as driver?” 11. Learned counsel would submit that the applicant is a driver, but, after the accident he became unfit to continue his profession as driver, then, the learned Commissioner ought to have considered the loss of earning capacity at 100%. The learned Commissioner failed to appreciate the evidence in right perspective and granted only an amount of Rs.25,000/- under no fault liability, which is not tenable under law. 12. Refuting the arguments of the learned counsel for the appellant referred to supra, the learned counsel for the respondents submits that the injuries sustained by the applicant is non-schedule injury and accordingly, the learned Commissioner was correct in awarding compensation of Rs.25,000/- under no fault liability. 13. Before proceeding further, in the light of the question of law raised in this appeal, it is necessary to look into the undisputed facts of the case. 14. Needless to say that for getting any compensation against the owner and insurance company, the applicant must prove that he is a worker as per Section 2 (1) (n) of the Workmen’s Compensation Act and he sustained injury out of and in the course of employment. 15. In the present case, the Opposite Party No. 1 being the owner categorically admitted that the applicant worked under him as driver to his lorry and he sustained injury during the course of employment. In order to buttress the contention, the applicant as AW-1 deposed in replica to the averments made in the petition in his chief- examination before the learned Commissioner. He stated that on 22.05.2001, while he was working as driver on lorry No. AP-9T-4501 at K.C.P. Cement Factory, Macherla, while waiting for loading, the accident occurred while getting down from the lorry, he slipped and sustained fractured injury to his right calcaneum. He got issued legal notice to Opposite Party No. 1. He took treatment at Dr. Haribabu. The medical certificate filed under Ex.A.6. He got a driving licence, which is Ex.A.7. He took treatment in Government General Hospital, Guntur vide O.P. chit Ex.A.8. He got issued legal notice to Opposite Party No. 1. He took treatment at Dr. Haribabu. The medical certificate filed under Ex.A.6. He got a driving licence, which is Ex.A.7. He took treatment in Government General Hospital, Guntur vide O.P. chit Ex.A.8. He also filed 3 X-ray films vide Ex.A.9. Nothing has been elicited from AW-1 in the cross-examination by the learned counsel for the Opposite Party No. 2. The doctor, who treated the petitioner, was examined as AW-2. He testified that on 24.07.2001 he got treated the applicant and his right ankle movement are restricted. The fracture is commuted in more than two fragments and it is visible that the prominent calcaneum bone at the insertion of the tendosachilbes. AW-2 in clear terms stated that there will be difficulty in walking on uneven grounds and stair cases. The applicant is having restricted movement at ankle joint and he will have pain while operating with right foot. According to AW-2, the disability would be amounting to 15% to 20%. AW-2 bluntly denied the suggestion by the Opposite Party No. 2 that had the applicant took treatment in Government General Hospital, Guntur, the disability would be reduced. Though AW-2 denied the said suggestion, the learned Commissioner opined that if the applicant approached the Government General Hospital, Guntur, directly at the first instance for the treatment to his injuries, the disability might have been reduced to the larger extent and there is gross negligence on the part of the applicant in taking proper treatment to his injuries, for which the insurance company is not expected to pay compensation. No doubt the doctor, who was examined, has seen the applicant after two months of the incident. It is not the case of the applicant that he kept quiet for two months and then approached Government General Hospital, Guntur. Applicant says though he had been taking treatment, in spite of it the fracture is not united then he approached Guntur General Hospital. On the other hand, RW-1 testified that their investigation reveals that no accident occurred on the date of incident. He filed Ex.R.1 and R.2 in support of his contention. RW-1 further stated that generally, the experienced driver, if sustained injury, visit Government Hospital for treatment. On the other hand, RW-1 testified that their investigation reveals that no accident occurred on the date of incident. He filed Ex.R.1 and R.2 in support of his contention. RW-1 further stated that generally, the experienced driver, if sustained injury, visit Government Hospital for treatment. The general statement of the witness RW-1 cannot be a ground to discard the case of the appellant on the point that he has not visited the Government Hospital initially. In the cross-examination, RW-1 admitted that the vehicle was insured with the Opposite Party No. 2. There is no condition that the injured should go to Government Hospital for treatment as per the policy. The claim form of the Opposite Party No. 2 was marked as Ex.R.3. The learned Commissioner presumed that the applicant contributed his negligence for the disability granted Rs.25,000/- under no fault liability. While the applicant successfully proved that he was workman under Opposite Party No. 1 and he sustained injury during the course of employment, Opposite Party No. 1 is liable to pay compensation. When the vehicle was insured with the Opposite Party No. 2, they have to indemnify the loss of Opposite Party No. 1. It is pertinent to say that the injury of the fracture of calcineum to the knee is a non-schedule injury. It is relevant to have a cursory look on Section 4 (1) (c) Explanation-II and Section 2 (1) (g) of the Workmen’s Compensation Act: “Section 4 (1) (c) Explanation-II: (c) where permanent partial disablement results from the injury in the case of an injury specified in Part II of Schedule I such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the lass of earning capacity caused by that injury; and in the case of an injury specified in Schedule I such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. Explanation II: In assessing the loss of earning capacity for the purpose of sub-clause (ii) the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I. (d) where temporary disablement whether total or partial results from the injury a half monthly payment of the sum equivalent to twenty five per cent of monthly wages of the workman to be paid in accordance with the provisions of sub-section (2).” 16. The language employed in the proviso referred to supra, would indicate that the learned Commissioner, based on the opinion given by the medical officer on the point of disability, has to calculate the compensation. In the present case, that was not done by the Commissioner. Instead of doing the same, he granted Rs.25,000/- under no fault liability. The reason given by the learned Commissioner that the applicant ought to have approached the Government General Hospital, Guntur, immediately after the incident, but he has not visited the Guntur General Hospital for which he is entitled for no fault liability is erroneous and not sustainable under law. 17. Coming to the income of the applicant, according to him, he used to earn Rs.4,000/- per month from opposite party No. 1, but no piece of paper was produced to prove the same. In the absence of proof of income it is appropriate to apply G.O.Ms. No. 30, Labour, Employment, Training and Factories (Lab-II) Department, dated 27.07.2000. The basic wage of the driver as on the date of the accident was Rs.2,589/- the variable D.A. Rs.588/- totalling to Rs.3,175/- x 60/100 x 172.52 = 3,28,650/-. The disability @ 20/100 amounting to Rs.65,730/-. The applicant is entitled for an amount of Rs.65,730/- with interest @ 12% p.a. from the date of accident till realisation. The amount of Rs.25,000/- granted under no fault liability shall be deducted out of Rs.65,730/- and the remaining amount shall be paid with interest at 12% from the date of petition till realisation. The respondents are liable to pay the difference amount within a period of two months from the date of receipt of a copy of the order. 18. Accordingly, the Civil Miscellaneous Appeal is allowed modifying the order dated 25.03.2003 in W.C. No. 98 of 2001 on the file of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Guntur to the extent indicated above. 19. 18. Accordingly, the Civil Miscellaneous Appeal is allowed modifying the order dated 25.03.2003 in W.C. No. 98 of 2001 on the file of Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Guntur to the extent indicated above. 19. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.