Tilhari, J.:— This appeal is directed against the judgment and award dated 12.5.1998 passed by the Labour Officer and Commissioner for Workmen's Compensation, Mandya District, Mandya, in Case No. CWC/CRMF No. 95 of 1994-1995.

2. In the matter of accident that had taken place on 21.8.1994 at the time and place mentioned in the claim petition, it has been found by the Labour Officer and Commissioner for Workmen's Compensation Mandya District, Mandya, that the claimant workman, i.e, respondent No. 2 sustained grievous injuries. The Labour Officer and Commissioner for Workmen's Compensation, assessed the compensation to the tune of Rs. 79,900 together with interest at the rate of 6 per cent per annum. Being aggrieved by the judgment and award passed by the Labour Officer and Commissioner for Workmen's Compensation, Mandya District, Mandya, the employer and insurance company have come up in appeal under section 30 of the Workmen's Compensation Act, 1923.

3. Mr. O. Mahesh, the learned counsel for the appellants has contended that the compensation awarded to the tune of Rs. 79,900 is illegal. He pointed out that this is a case of partial permanent disablement resulting from the injury. This disablement is covered by section 4(1)(c) clause (ii) of the Workmen's Compensation Act. He further contended that in the case of permanent partial disablement specified in Schedule I, the compensation payable will be as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner). He further contended that the doctor who has been examined has certified the disablement to the tune of 40 per cent and not more. As such the Labour Officer and Commissioner for Workmen's Compensation was not justified in taking or assuming 100 per cent loss of earning capacity, as there was no other evidence of the qualified medical practitioner, contrary to the evidence of Dr. Thomas before the Labour Officer and Commissioner for Workmen's Compensation. He submitted that there can be no dispute on one point that if there are two qualified medical practitioners produced in the case and their assessment of permanent partial disablement throws difference of opinions of the two regarding the proportion of disablement or loss of earning capacity. In that case, no doubt the Labour Officer and Commissioner for Workmen's Compensation has got jurisdiction to rely and accept the evidence of either of the two medical practitioners. But where there is only one qualified medical practitioner who has assessed the loss of earning capacity of the injured and its percentage and there is no evidence in rebuttal or to the contrary to that medical evidence, the Labour Officer and Commissioner for Workmen's Compensation ought to have acted on that evidence or when he was not satisfied, then he should have called for the fresh report either from that doctor or from a different doctor. But this has not been done. The Labour Officer and Commissioner for Workmen's Compensation could not award on his own assuming the loss of earning capacity to 100 per cent.

4. Mr. H.C Shivaram, learned counsel for the respondent has contended that looking to the injuries and his incapability to perform the job of driver or other works, it had to be taken total permanent disablement and 100 per cent loss of earning capacity. The learned counsel further contended that the injuries on the hip joints resulted in shortening the leg and the injury in the wrist also disabled the respondent-claimant from performing the job of driver, which the claimant-injured has been doing prior to the accident. When he was a skilled labourer, i.e, as driver, looking to his age as well he could not be expected to undertake other job of sweeper or cobbler, etc. The learned counsel further submitted that award of compensation assuming the loss to be total permanent disablement was justified one.

5. The question, no doubt, whether it is the case of total permanent disablement or permanent partial disablement has to be determined by the Labour Officer, i.e, the Commissioner for Workmen's Compensation and not by the Medical Officer. Where the case is one of permanent partial disablement within clause (c) of section 4(1) of the Workmen's Compensation Act, it directs the percentage of the compensation payable would be such to compensation payable in the case of permanent total disablement as should be proportionate to the loss of earning capacity as assessed by the qualified medical practitioner. So the first question as to permanent total disablement has been defined in clause (1) of section 2(1) of the Workmen's Compensation Act which reads as under:

“‘Total disablement’ means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. Provided that permanent total disablement shall be deemed to result from every injury specified in Part 1 of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the Joss of earning capacity, as specified in the said Part II against those injuries amounts to one hundred per cent or more.”

6. The definition of ‘total disablement’ reveals that it is such disablement, whether of a temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries amounts to one hundred per cent or more. The proviso deals with the injuries as specified in Part I of Schedule I in the case of which injuries are to be deemed to result in permanent total disablement by legal fiction. In other cases section 2(1) of the Workmen's Compensation Act provides that whether the injury or injuries incapacitated a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. The Commissioner has got jurisdiction to adjudge and determine. The Commissioner no doubt has adjudicated it keeping in view the effect of injuries and opining that the injured was not capable of performing the driver's job and the injuries have rendered the injured totally incapacitated from performing the job of driver. No evidence led by the owner or by the insurance company to prove or show that the claimant was at the time of accident capable of performing any other job or was doing any other business. Looking to the fact that the claimant was incapacitated because of injuries on the left hip joints resulting in shortening the leg by half an inch and injury of the left hand wrist incapacitated the respondent-petitioner from performing the job of driver. It can well be said that the driver was subject to the total disablement for the work which he was capable of performing at the time of the accident. It cannot be said that the skilled men, who have been performing the skilled special trained job of driver on being disabled to do that on account of injuries caused may opt to do the jobs of sweeper or cobbler, because what has to be looked into is what was the job at the time of accident resulting in disablement he was capable of doing and to do which he was employed. Applying the above test in my view the present has been a case of total permanent disablement. I find support from the observations made by this court in the case of K.P Hanumantha Gowda v. Devaraju, 1996 ACJ 102 (Karnataka). It will be appropriate to quote the following observation of the said decision:

“The total disablement should be assessed vis-a-vis the work, the worker was carrying. If the worker is disabled to perform all the work he was engaged to perform, it amounts to total disablement. It is to be noted that the compensation is claimed under the Workmen's Compensation Act, 1923, by the worker as defined under the Act. That worker, due to the injury sustained by him, loses the capacity to do that work, which capacity earned him the status of a worker under the employer. If so, the disablement that he suffers should be understood vis-a-vis the work he carried on or for which he was employed. If by the accident, he becomes totally disabled to carry on that work, as far as he is concerned, it is a total disablement. A driver employed is employed to drive. He is not to work as a sweeper or a manual labourer. If due to the accident, a driver becomes incapable of performing his duties as a driver, there is total disablement as far as he is concerned. He will cease to be a driver under the employer and consequently a worker under that employer. The fact that he can do some other work elsewhere is no ground to state that he is not totally disabled. His disablement should be assessed with reference to the work he was employed to perform at the time of accident. His capacity to do some other type of work, did not earn him the status of worker under the particular employer. If by the accident the worker loses his employment under his employer, thereby ceases to be a worker as defined under the Act, under that particular employer which employment brought him under the purview of the Act and the relationship of employer-worker is brought to an end, then that amounts to ‘total disablement’ as contemplated under the Act. To repeat, his capacity to do some other work either under the same employer or another employer or independently is of no consequence. It has to be remembered that a skilled worker, if by an accident is disabled to do the particular skilled work, may not be in a position to be employed as an unskilled worker in the same industry for a variety of reasons. He may be over-age or there may be opposition from other unskilled workers since the new employee may mar their employment prospects. Hence, with the employee being disabled to carry on the work for which he was originally employed, it will be a virtual exit from the establishment. It may be contradiction in terms, if we are still to hold that there is no ‘total disablement’ for the employee.”

7. The Andhra Pradesh High Court in the case of National Insurance Co. Ltd. v. Mohd. Saleem Khan, 1993 ACJ 181 (AP), has also expressed the same view. Thus considering the whole matter, it appears to me that the Labour Officer and Commissioner for Workmen's Compensation was justified in holding it to be a case of total disablement and not of partial disablement and that the injuries do not come within the purview of Part I of Schedule I. Part I of Schedule I is relevant with respect to the application of deeming clause. Where deeming clause is applicable with reference to the particular injury, it has to be presumed as legal fiction that the injury caused total disablement, while in others it has to be decided and examined in the context of expression that the injury or disablement is such that it has incapacitated the workman for all work, which he was capable of performing at the time of the accident resulting in such disablement. At the time of the accident, it can be said that the driver, who is a skilled labour was capable of performing the job or work of driver to come within the four corners of definition ‘workman’. As observed earlier, the fact that he can do some other work elsewhere than one he was capable of performing at the time of accident is no ground to hold that he was not totally disabled. Thus per se, in my opinion, the learned Labour Officer and Commissioner for Workmen's Compensation was justified in holding that this was a case of total disablement with compensation to the tune of Rs. 79,900.

8. The learned counsel appearing for the respondent tried to urge that interest should have been awarded at the rate of 12 per cent per annum. As he has not filed any cross-objection with respect to the finding on the rate of interest, he is not permitted to urge this submission at this stage. Hence this argument of the learned counsel is rejected.

9. The appeal is dismissed.

10. The judgment and award dated 12.5.1998 passed by the Labour Officer and Commissioner for Workmen's Compensation, Mandya District, Mandya, is confirmed.

11. The appellants have already deposited in this court the entire amount of compensation awarded by the Labour Officer and Commissioner for Workmen's Compensation, Mandya and the same be transmitted to the Commissioner for being paid or disbursed to the claimant. The amount of interest, I am informed has not been deposited by the appellants so far, I direct that the appellants shall deposit the interest as fixed by the Commissioner in the court below within a period of one month from the date of getting the certified copy of this judgment. The same shall be disbursed to the claimant after depositing the same by the appellants.

12. Appeal dismissed.