JUDGMENT : (Venkata Jyothirmai Pratapa, J.) 1. This Civil Miscellaneous Appeal is directed under Section 30 of the Workmen Compensation Act, 1923,( for short ‘the Act’) against the impugned Order dated 23.03.2002 in W.C.No.42 of 2000on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Srikakulam (hereinafter be referred to as“ Commissioner”.) 2. The appellant herein was the Opposite Party No.2, Respondent No.1 herein was the Applicant and respondent No.2 herein was the Opposite Party No.1 before the learned Commissioner. For the sake of convenience and understanding, the parties are referred to as they were arrayed before the learned Commissioner. 3. The case of the Applicant in nutshell is that: a. Applicant/Injured-Sri DhavalaRama Rao received injuries during the course of employment on 29.03.1999 while he was working as a coolie to carry heavy loads in the rice mill of O.P.No.1 i.e., Sri Savaraju Modern Rice Mill, Amadalavalasa. He suffered fractures to his rightleg and is unable to continue his work as a Hamali, resulting 100% of loss of earning capacity. Therefore, he sought for compensation of Rs.1,57,686.35 Ps from the Opposite Parties. 4. O.P.No.1 filed Counter Affidavit admitting that the applicant worked in the rice mill and during the course of employment, he sustained injuries and he could not be reemployed as alternative employment is not available in their factory as the applicant cannot attend his regular work.O.P.No.2 filed Counter stating that the claim is very excessive. 5. During the enquiry before the learned Commissioner, applicant was examined as AW.1 and Sri B. Kondalarao, who treated the applicant was examined as AW.2. The employer of the applicant i.e., O.P.No.1 examined himself as RW.1. 6. After hearing both the counsel and on appreciation of the evidence on record, the learned Commissioner awarded an amount of Rs.1,70,615/- in favour of the applicant with interest at 12% p.a. from the date of accident against the claim of Rs.1,57,686.35 ps. 7. Having been aggrieved by the impugned Order, the O.P.No.2 preferred the present appeal with the following substantial question of law : i) Whether the Commissioner has any jurisdiction to take the disability as 100% when the Doctor certified the disability as 40%. ii) Whether the Commissioner can grant any compensation above the claim of the applicant ? 7. Having been aggrieved by the impugned Order, the O.P.No.2 preferred the present appeal with the following substantial question of law : i) Whether the Commissioner has any jurisdiction to take the disability as 100% when the Doctor certified the disability as 40%. ii) Whether the Commissioner can grant any compensation above the claim of the applicant ? iii) Whether the Commissioner is wrong in awarding the compensation in the absence of any explanation for not serving any notice under Section 10 of the Workmen Compensation Act. 8. This Court heard both the learned counsel and perused the material available on record. Point No.1: 9. The applicant as AW.1 deposed in replica to the averments made in petition in his chief examination affidavit to the effect that while he was working as a Hamali in the rice mill of O.P.No.1, the bags fell on him, resulting, he sustained fractures to his right leg and therefore, he cannot carry weights. Medical Board certified that he is totally and permanently unfit to carry heavy loads and therefore, he is claiming loss of earning capacity. In support of his claim, Dr. B. Kondala Rao, M.S. (Ortho), who treated the applicant as AW.2 supported the case of the applicant. He deposed that he has treated the applicant and issued Exs. A.1 and A.2. He issued the Disability Certificate under Ex.A.3, which shows that the applicant cannot carry any heavy weights and the applicant is not fit for job of any manual labour due to the injuries received to his right leg. 10. O.P.No.1 being the employer of the applicant examined as RW.1. He deposed that the accident occurred during the course of employment and the risk of the applicant is covered by the Policy under Ex.A.8. He could not give alternative employment to the applicant as there are no such works in his rice mill. Nothing has been elicited by cross examining AWs. 1 and 2 by the Opposite Parties. 11. Here the question raised by the insurance company is that when the Medical Certificate shows the disability as 40%, can it be taken as 100%loss of earning capacity by the learned Commissioner. Nothing has been elicited by cross examining AWs. 1 and 2 by the Opposite Parties. 11. Here the question raised by the insurance company is that when the Medical Certificate shows the disability as 40%, can it be taken as 100%loss of earning capacity by the learned Commissioner. At this juncture, it is beneficial to refer the judgment of Hon’ble Bombay High Court in Ashok Raybhan Kashide v. Shivaji and Another, 2022 SCC online Bom 96, para Nos.,12, 13 and 14 summarize the catena of decisions with regard to functional disability, as follows:- “12. In case of Shri Chanappa Nagappa Muchalagoda v. Divisional Manager, New India Insurance Company Limited (supra), the Hon'ble Supreme Court has held about the direct impact on the functional disability of the appellant/original claimant. In the cited case, the appellant/original claimant was working as tanker driver. He met with an accident and suffered 37% disability in his whole body. He could not perform the work as a tanker driver any longer. The Commissioner held that it was a disability of 50%. The High Court increased the same to 60%. The Hon'ble Supreme Court after appreciating the evidence on record and facts of the case held that it was a case of 100 % functional disability of the appellant/original claimant and accordingly awarded the compensation. 13. In case of K. Janardhan v. United India Insurance Co. Ltd., (2008) 8 SCC 518 , the Hon'ble Supreme Court has examined the loss of earning capacity in a case of a tanker driver who had met with an accident and lost one of his legs due to amputation. The Commissioner for Workmen's Compensation assessed the functional disability of the tanker driver as 100% and awarded compensation on that basis. The High Court however, referred to Schedule I to the Workmen's Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60% loss of earning capacity. The Hon'ble Supreme Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%. 14. The Hon'ble Supreme Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%. 14. In case of Pratap Narain Singh Deo v. Shrinivas Sabatra (supra), the Hon'ble Supreme Court after appreciating the evidence on record and facts of the case held that the original claimant/carpenter had lost 100% of his earning capacity due to amputation of his left arm above the elbow. He had become unfit for the work of carpenter”. 12. In the backdrop of the judgment referred to supra highlighting that whenever a workman is unable to earn his livingas a result of the injury, it is apt to consider it as a functional disability as 100%, and in the circumstances of the case, learned Commissioner has not exceeded his jurisdiction in considering the disability of the applicant as 100%. Accordingly, this Point is answered. Point No.2: 13. Coming to the facts on hand on this point, O.P.No.2 did not choose to examine any person in support of his contentions. According to RW.1, the applicant used to get Rs.1427.00 per month by the date of the accident. But, he agreed that in the policy, it is shown as RS.1000/- per month. The applicant contended that he is entitled to receive Rs.1650.20 as per the Minimum Wages fixed in G.O.Ms.No.70, dated 16.04.1991. The age of the applicant as 40 years is not in dispute. The learned Commissioner opined that the claim is filed basing on the actual wages i.e., for Rs.1,57,686.35 Ps. The learned Commissioner rightly opined that the applicant is eligible for compensation on the basis of the minimum wages payable to the unskilled Mazddor in Rice Mills i.e., Rs.1544/- per month. As the applicant became unfit to work as Khalasi to lift the heavy loads in the rice mill, he lost 100% earning capacity on his profession. Taking the loss of the earning capacity as 100%, the learned Commissioner arrived the compensation as Rs.1,70,615.00. 14. Compensation has been defined in Section 2(c) of the 1923 Act to mean “compensation as provided therein”. Taking the loss of the earning capacity as 100%, the learned Commissioner arrived the compensation as Rs.1,70,615.00. 14. Compensation has been defined in Section 2(c) of the 1923 Act to mean “compensation as provided therein”. In Balavandra Patra v. Chief Engineer, Orissa, 1987 (1) LLN 634 , the Hon’ble High Court of Orissa was of the view that the Act being a benevolent statute, its construction should not cause prejudice to persons that it intends to benefit. Since Section 4 of the Act provides that the amount of compensation shall be as provided in the schedule, the term “shall” should be given its full effect even when the claimant makes a lesser claim. 15. In National Insurance Company Ltd. vs R. Vishnu And Anr., 1992 ACJ 590 an interesting view was taken by the Hon’ble Division Bench of the Karnataka High Court while holding that the Commissioner is entitled to fix a higher compensation that what was claimed in appropriate cases, as follows; “It should be noted that an application filed before the Workmen's Compensation Commissioner under the Act, which is a social security measure, cannot be equated to a plaint before the Court. Once application is filled with necessary details, quantification of the compensation is the duty of the Commissioner and he has to do it in accordance with law. Therefore, if in a given case, as has happened in this case, even though the claimant had asked for lesser amount, after proper adjudication when the Commissioner finds that higher compensation than what was asked for, has to be awarded, he has not only the power but also the duty to award such higher compensation.” 16. In Oriental Insurance Company Limited v Mohd. Nasir and another, 2009 SCC Online SC 1129, the Hon’ble Apex Court held that: “The third question which had been raised is as to whether any amount could be directed to be paid in excess of the amount claimed. We have noticed hereinbefore that the Act is a beneficent legislation. It imposes a statutory duty upon the Commissioner and/or the Tribunal. Reliance has been placed in this behalf on a decision of this Court in Shyama Devi v. Union of India & Anr. [ (2005) 12 SCC 217 ], wherein it was held : "6. We have noticed hereinbefore that the Act is a beneficent legislation. It imposes a statutory duty upon the Commissioner and/or the Tribunal. Reliance has been placed in this behalf on a decision of this Court in Shyama Devi v. Union of India & Anr. [ (2005) 12 SCC 217 ], wherein it was held : "6. So far as quantum of compensation is concerned, the Presiding Officer has recorded a finding that the deceased was earning Rs 1600 and was aged 56 years at the time of his death. On the basis of his last wages and age, according to Schedule IV of the Workmen's Compensation Act, 1923, a total sum of Rs 1,05,560 was payable as compensation on the death of the deceased but since the claim was made for Rs 84,448, we will restrict the award for the aforesaid sum as has been claimed in the claim petition. Apart from the above quantum of compensation, the appellant would be entitled to statutory interest payable on this sum. The appeal is accordingly allowed. The appellant is awarded compensation in the sum of Rs. 84,448 with statutory interest under Section 4-A(3) of the Workmen's Compensation Act. The amount shall be paid by the Railways within a period of eight weeks." 26. No principle of law has been laid down therein. No reason has been assigned in support of the said conclusion. The said decision, therefore, must be held to have been rendered in the facts and circumstance of the case and not as a law laid down in terms of Article 141 of the Constitution of India. 27. The function of Commissioner is to determine the amount of compensation as laid down under the Act. Even if no amount is claimed, the Commissioner must determine the amount which is found payable to the workman. Even in the cases arising out of the 1988 Act, it is the duty of the Tribunal to arrive at a just compensation having regard to the provisions contained in Section 168 thereof.” 17. The authority referred supra is vivid on the point of that the learned Commissioner under Workmen Compensation Act has every authority to fix just compensation irrespective of the claim made by the applicants, with due regard to the provisions of the Act. The authority referred supra is vivid on the point of that the learned Commissioner under Workmen Compensation Act has every authority to fix just compensation irrespective of the claim made by the applicants, with due regard to the provisions of the Act. The minimum wages fixed by the Government from time to time is the minimum that any institution is supposed to pay to a workman. Irrespective of the proof of wages on the part of the employee, it is the minimum which the Commissioner must consider. This Court does not find any infirmity in the Order impugned on this point. Accordingly, this Point is answered. Point No.3: 18. Immediately after the accident, the employee must serve a notice under Section 10 of the Act to the employer intimating about the accident. In the present case, no such notice has been filed. But, the fact remains that the employer has got knowledge about the accident, but failed to compensate the applicant. Therefore, the applicant approached the learned Commissioner claiming justifiable compensation. Needless to say that even in the absence of such notice, the present petition is maintainable before the learned Commissioner. As per section 14 of the Act, the applicant cannot file a petition directly against the insurance company except under the specified circumstances. At first, it is the responsibility of the employer to pay the compensation as per the provisions of the Act and thereafter it can be reimbursed by the insurance company, but, that cannot be a ground to discard the case of the applicant since the liability of the insurance company is by virtue of indemnity. Accordingly, this Point is answered 19. In the result, the present Civil Miscellaneous Appeal is dismissed. Each party shall bear their own costs. Miscellaneous petitions pending, if any, in this case shall stand closed.