JUDGMENT

Manjula Chellur, J.

1. This appeal is filed by the employer and the insurer against the injured applicant contending that the judgment and award of the Commissioner for Workmen's Compensation, Mandya in No. NF:CR:71/96 is not correct. It is contended the loss of earning capacity assessed by the doctor was 55% but the Commissioner was wrong in taking into consideration the loss of capacity at 100%. It was also contended that the fact of injured claimant still working and earning has to be taken into consideration while assessing the compensation. According to the appellants, the actual loss of earning capacity did not exceed 25%. They also contended that the assessment wages of respondent at Rs. 290/- per month by the Commissioner was wrong. According to the appellants, even if the alleged injuries fall under schedule injuries, it will not come to the compensation of Rs. 2,70,264.00. With these averments the present appeal is filed.

2. The brief facts that led to the filing of the appeal are as under:

The injured claimant who is the respondent herein was a loader in a Canter belonging to the 1st appellant herein bearing No. KA:11:0199. On 20-6-1996 after unloading the milk, the lorry was proceeding towards Gajjelegere Milk Dairy. On the way to the said milk dairy the lorry met with an accident, as a result the injured sustained grievous injuries resulted in fracture of both the legs. As he was paid Rs. 2,000/- per month as salary apart from Rs. 30/- as batta, he had asked for Rs. 3,50,000/- as compensation.

3. On behalf of the inured he got himself examined as witness and got marked several documents. He also got examined the doctor, P. W. 2, an Orthopedic Surgeon.

4. On appreciating the material on record, the Commissioner came to the conclusion that there is total permanent disablement of 100% and having regard to the age of the injured as 19 years awarded compensation at Rs. 2,70,264.00. Aggrieved by the same, the present appeal is filed.

5. The point that would arise for Court's consideration is whether the judgment and award of the Commissioner is sustainable and what order?

6. After receiving the notice the employer did not file any objections but the second respondent-insurer filed objections and also contested the matter. From the material placed on record the Commissioner came to the conclusion that as on the date of accident i.e., 20-6-1996 the injured, respondent herein was working as a loader and met with an accident on the way to the milk dairy. Both the injured and the doctor are examined in this case in support of the contention of the injured. The examination of the injured by the doctor at Mandya Hospital on 20-6-1996 revealed, both the legs had bleeding injuries. After X-ray it was revealed that both the bones of the left leg were fractured, the kneecap of the right leg was opened with intense injuries to the tendons and muscles. After discharge of him on 29-8-1996 for 10 to 12 times he visited the hospital. Skin grafting was also done. The latest examination of the doctor on 22-1-19.98 reveals that there was swelling on the left leg coupled with severe pain. He was not able to walk, stand or do the work he was attending to earlier to the accident. The left knee was also swelling. There was difficulty in bending the left knee. He offers 55% permanent disability to the left leg and 25% to the whole body.

7. In Pratap Narain Singh Deo v. Skrinivas Sabata and Anr., question arose before the Apex Court whether the workman who was a carpenter by profession who sustained amputation of his left arm from the elbow suffers from total permanent disablement or partial permanent disablement. In this case the workman sustained injuries when he was doing some ornamental work in Cinema Theatre the injuries sustained by him ultimately resulted in the amputation. The workman approached the Commissioner for Workmen's Compensation contending that he had suffered the injury in the course of his employment and was entitled for compensation. This was contested by the employer. The Commissioner held in the said case that the workman as a carpenter, by loss of his left hand above the elbow has evidently rendered him unfit for the work of carpenter as he cannot do the work with one hand. Therefore, according to the Commissioner the workman sustained 100% loss of earning capacity.

8. This was questioned in the High Court of Orissa and the said application was dismissed. The matter reached the Apex Court. The arguments before the Apex Court was that the Commissioner had committed gross error of law in taking the view that the workman had sustained permanent total disablement. It was further contended that Item No. 3 of Part II of Schedule I of the Act would be applicable as it was only a permanent partial disablement. At para 5 of the said judgment the Apex Court has held as under:

"The expression "total disablement" has been defined in Section 2(i)(1) of the Act as follows:

' Total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement'.

It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work, which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:

'The injured workman in this case is carpenter by profession. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpentry as the work of carpentry cannot be done by one hand only'.

This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item No. 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acramion to less than 4 1/2" below the tip of olecranon. A new case cannot, therefore, be allowed to be set up on facts which have not been admitted or established".

9. In the recent decision in Amar Nath Singh v. Continental Constructions Ltd., New Delhi., New Delhi., the Apex Court had an occasion to deal with section 4(1)(c) of the Act read with Schedule I of Part II.

10. This was a case where the claimant approached the Commissioner for Workmen's Compensation with the complaint of loss of vision of the left eye to an extent of 80%. The Commissioner awarded compensation assessing the loss of vision at 100% awarding an amount of Rs. 1,97,000/-. This was challenged before the High Court. In the appeal the Appellate Court reduced the compensation by 30%. However, their Lordships at para 4 have said after having gone through the papers and having heard the learned Counsels on both sides, they were of the opinion that they should not be undoubtedly fettered by the principles stated either in the Act or made in the course of proceedings in that case and on overall assessment of the matter they think that out of Rs. 1,97,000/- which was deposited in the High Court towards the compensation and penalty which was already withdrawn by the appellant-claimant a sum of Rs. 1,00,000/- shall be retained by him and the balance of Rs. 97,000/- shall be refunded to the respondent-company in six months i.e., either in lump sum or in installments.

11. In this case the argument of the respondent was that the appellant himself was claiming that he was fit for work and therefore the view of the Commissioner that there is 100% disability was wrong. The contention of the claimant was, there is loss in the earning capacity on account of 100% disability. The Apex Court has held referring to the decision of Pratap Narain Singh Deo's case, supra, turned on its own facts, the principles therein cannot be extended to the present case. Therefore, in the latest case, the Apex Court merely said the principle laid down in Pratap Narain Singh Deo's case, supra, are not applicable to the facts of the case on hand.

12. The decision in Punambhai Khodabhai Parmar v. G. Kenel Construction and Anr., is of some relevance. In this case, the workman was a driver who suffered disability on account of injuries to the right hand fingers, elbow and right thigh in an accident. Thereafter, he was rendered unfit for work as a driver. The Commissioner assessed the disability at 70% and the Hon'ble High Court of Gujarat assessed the disability at 100% and enhanced the compensation. They also referred to the case of Pratap Narain Singh Deo, supra and came to the conclusion that permanent total disablement is to be judged from the point of view of the job which the workman was doing and if the disablement renders him unfit to do the job, the disablement is total and not partial.

13. There is a Division Bench judgment of our High Court in Divisional Manager, Karnataka State Road Transport Corporation v. Bhimaiah. Their Lordships had occasion to deal with a case of a driver workman in a bus who had sustained an injury to his left hand resulting in an impairment of free movement of his left hand, disabling him from driving vehicle. It was held that the injury is not one of the injuries mentioned in Schedule I of the Act which are deemed to result in permanent total disablement. It was further held, the nature of disability is not to be determined with reference to and vis-a-vis the work of the workman performing at the time of the accident. Therefore, they held that the disablement do not amount to permanent total disablement, as the workman was capable of performing the duties and executing the work other than driving the motor vehicles. In this case, the case of Pratap Narain Singh Deo, supra, by the Apex Court was not at all brought to the notice of the Bench. Placing reliance on judgment in General Manager of the G.I.P. Railway, Bombay v. Shankar, the Division Bench of this Court held as mentioned above.

14. There is another reported case of this High Court in Karnataka State Road Transport Corporation, Bangalore v. B.T. Somashekaraiah, where the Division Bench of this Court had an occasion to discuss the meaning of partial disablement as defined under Section 4(c) and Schedule I and Part II. In this case the claimant-respondent was a driver in the appellant-Corporation who suffered an injury in an accident where his thumb was cut off by one inch. However, the chopped portion was not traced. The Commissioner held that the injury fell under Schedule I of Part II of the workmen's compensation act, 1923 by applying the relevant table. The appeal was filed by the Corporation contending that the Commissioner ought to have taken into consideration the fact of the workman continuing his service in the Corporation after the accident and there was no loss of any service or emoluments. They made a reference to a case of National Insurance Company Limited v. R. Vishnu, wherein this Court observed that the question as to whether a particular claimant has suffered partial disablement or total disablement should depend upon the nature of employment and further if in a given case an alternative employment is given by the same employer, that factor can be taken into account. In that case it was not contended by the employer that he had given any alternative employment to the respondent as he was a driver and there was amputation of his left leg. The Court found that the Commissioner was right in treating it as total disablement and awarding compensation accordingly. It was further made clear that the Commissioner has power to award more compensation than what is claimed by the workman if the facts do warrant such award.

15. In B.T. Somashekaraiah's case, supra, the Division Bench held that the facts of National Insurance Company Limited's case, supra, are different from the facts posed before them and they finally opined that the injury suffered by the workman falls under Schedule I of Part II of the Act and as per the Schedule it was 20% disability. They further held that the Commissioner had awarded the amount that was awardable under the statute. It was also held that the Commissioner cannot bring down the compensation and award less than what is prescribed by the statute as the minimum that is awardable. They also held that the cross-objections raised by the claimant that he suffered permanent total disablement was also rejected as his disablement out of employment injury has not come in the way of the workman performing his normal duties as a driver as he was continued in service.

16. There is another judgment of this Court in Siddappa v. General Manager, Karnataka State Road Transport Corporation and Anr. In this case it was held that, all that Section 4(c)(i) read with Part II of Schedule I is that in the case of injury specified therein, the percentage of permanent total disablement to the extent specified therein must be deemed to have occurred without any further proof. That provision does not debar the payment of compensation under section 4(1)(b) if, in a given case, it is proved that though the injury suffered by a workman falls under one of the items specified in Part II, having regard to the nature of the employment in which the workman concerned was employed, there has been permanent total disablement. If such a fact is proved, notwithstanding the fact that the injury suffered by a workman is one of those specified in Part II of Schedule I, he would be entitled to the compensation in accordance with the IV Schedule.

17. We have several other judgments of this Court pertaining to the above issue, which are referred hereinafter. One of such judgments is Oriental Insurance Company Limited, Bangalore v. Tajuddin Abdul Rahim Karanche. This Court had an occasion to deal with the definition of total disablement and assessment of compensation in relation to the work carried on by the workmen for which he was employed. It was held as under:

18. The principles that emerge on the basis of a consideration of law and the effect of the amendment of 1984 can briefly be summarized in the position that although undoubtedly, the accent is heavily on the medical evidence, this evidence is not sacrosanct and the Commissioner is not to be relegated as being required to mechanically follow the opinion of the doctor. The correct way to interpret the section would be that the absolute discretion of the Commissioner is, now curtailed to a very large extent insofar as he will have to gauge the loss of earning capacity strictly on the basis of assessment done by the medical expert. For this purpose, the old practice of merely producing a medical certificate with a rough estimate of disability no longer holds good. It will be necessary to lead medical evidence through the medium of a person who can be regarded as a qualified medical practitioner and that this doctor will have to be specifically informed about the job functions of the applicant and the bearing that the injury will have on these functions. Equally necessary, the Doctor will have to specifically depose about the short-term and long-term effects of the injury but more importantly as to how it will affect present job and the potential earning capacity in any other or alternate areas of employment. This evidence is crucial and is essential. Regardless of whether the parties on their own accord follow these principles, the Commissioner shall take into account the fact that the law requires this procedure to be adopted and shall ensure that it is done. Once this formula is adopted, the Court will have before it very clear and reliable evidence and it is on this basis that the quantum of compensation will have to be fixed. If there are extremely cogent and genuine grounds on which a departure has to be made from the evidence adduced by the doctor, such as in a situation where the opinion differ when more than one doctor is examined or where the applicant or the employer produces far better material, the Commissioner will not be precluded from making some departure from the medical evidence. The amendment of 1984 creates a situation whereby the Commissioner is required to go by this evidence or keep close to it and the Commissioner is therefore not permitted to make any radical departure from that evidence. In a given situation, if the Commissioner is dissatisfied with the evidence of one medical expert, it will certainly be open to seek further and better evidence.

19. In another case in Oriental Insurance Company Limited v. Kashim, pertaining to motor vehicles act referring to section 147 of 1988 and also rule 100 of the motor vehicles rules, 1989 it was said, an employee of owner of vehicle if travelling in course of employment even as a spare driver not actually driving the vehicle at the time of the accident is entitled to compensation under the workmen's compensation act. It was further held, when once the disability rendered the driver unfit to drive the vehicle the disability should be 100% even though permanent total disability is not that much.

20. In another case in Oriental Insurance Company Limited, Bangalore v. Raju and Anr, this Court held that under section 4(1)(c) the permanent partial disablement has to he examined while awarding compensation. It was a case where there was amputation of arm and the doctor had certified that the workman suffered 80% disability and the compensation was paid for 100%. It was held that the disability cannot be assessed at 100% in relation to loss of earning capacity as he could earn his livelihood by performing some other functions which would yield lower income.

21. In the case of United India Insurance Company Limited and Anr. v. Boregowda, it was held as under:

"That 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 disablement. Looking to the fact that the claimant was incapacitated because of injuries on the left hip joints resulting in shortening of leg by half an inch and injury to the left hand wrist incapacitated the respondent-petitioner from performing the job of driver as a driver. It can well be said that the driver was subject to the total disablement for the work 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 training 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 disablement he was capable of doing and to do which he was employed. Applying the above test, the present has been a case of total permanent disablement".

22. In the case of National Insurance Company Limited, Gokak, Belgaum District v. Nyaya Mathasab Ghouse Sab Muke and Anr., wherein the workman was a driver whose little finger and ring finger had been amputated and the medical expert opined that the workman suffered only 50% of disability. But the Commissioner held that the injuries suffered by the workman has resulted in 100% disability and this Court has held that by the nature of injuries suffered by the workman it cannot be said that there was 100% disability. It was further held in this case that question relating to the percentage of loss of earning capacity is purely a question of law and the same can be raised before the Appellate Court under Section 30 of the Motor Vehicles Act.

23. In the case of Nisar Ahmed Abdul Rahiman Killedar v. Babulal Achal Singk Raj Purohit and Anr., which pertains to a driver of a vehicle who suffered some injuries in an accident and he was found not capable of driving the vehicle. The question arose before the High Court whether it should be considered as 100% disability or not? Ultimately this Court held in this case, that even in a case of partial permanent disablement if the workman is not capable of performing that duty, which he was performing at the time of accident, such partial disablement cannot be considered total disablement unless the injury results in disability of 100% or more than 100% in aggregate as provided in Part II of Schedule I. It was further held that once the injury falls under Schedule I, Part II, the compensation has to be in accordance with the provisions of section 4(1)(c) depending on the percentage of loss of earning capacity given in Part II of the Schedule and if the injury is not specified in the schedule, the proportionate loss of earning capacity is to be assessed by qualified medical practitioner.

24. In another case in Syed Abdul Samad and Anr. v. Jabbar Hussain. It was a case of driver also suffered severe injury to the left-hand and the doctor assessed this disability as 40%. The Commissioner assessed the disability at 100% and awarded compensation. This Court held that having regard to the medical evidence and the opinion furnished and the fact that he had capacity to drive the vehicle though not as effectively as he was driving the vehicle as on the date of accident the loss in earning capacity cannot be 100% but has to be in proportion to the medical evidence in that regard.

25. In another case in National Insurance Company Limited, Chitradurga v. A. Gopala Reddy and Anr., the workman lost three fingers of left hand. He was a fitter under the employer. The Commissioner compensated 100% loss of earning capacity holding that there is 100% permanent disability. The doctor was not examined. The Insurance Company came in appeal before this Court. It was contended before this Court that the loss of three fingers falls under Item 8 in Part II of Schedule I, which would result in 30% of loss of earning capacity. Therefore, it cannot be 100% disability.

26. In another decision in National Insurance Company Limited v. Abdul Majeed and Anr. It was a case where the workman was a driver in a lorry who met with an accident, sustained undisplaced fracture right mid third (right humerus), fracture of right tibia and cerebral edema. He approached the Commissioner contending that he sustained permanent disability and there is 100% loss of earning capacity. The medical certificate provided 20% of disability and the Commissioner granted for 100% disability. This Court came to the conclusion and felt that there was no evidence to grant 100% loss of earning capacity. The order of the Commissioner was set aside remitting back the file to the Commissioner giving liberty to both the parties to adduce further evidence.

27. The relevant cases pertaining to the question involved are referred above. In the light of the above decisions, one has to see what exactly the intention of the legislature was while making the legislation under workmen's compensation act. There is no doubt that the workmen's compensation act is a welfare legislation like e.s.i. act and m.v.c. act. These special enactments were made to provide speedy disposal of the matters involving less financial burden to the claimants or the dependants or the legal representatives of the deceased in an accident as the case may be.

28. However, it is also clear from several decisions referred to supra that ultimately one has to look into the actual avocation that is carried on by the workman-claimant and then assess the loss of earning capacity.

29. What the Court has to see is whether the disablement complained of as a result of employment injury renders him unfit for the work he was carrying on irrespective of the fact whether the injury falls under the particular category of Schedule or not. In other words, the total disablement is to be arrived at from the point of view of the job the workman was carrying on at the time of accident.

30. Subsequent to 1984 amendment, the Commissioner need not follow the opinion of the doctor mechanically if the Commissioner is dissatisfied with the evidence of the medical expert and in such cases, it is open to him to seek further clarification. Therefore, it is clear that the Commissioner has to take a close view of the medical expert's evidence and there should not be radical departure from that evidence. The Commissioner is required to assess the loss of earning capacity on the assessment basis of medical expert if such opinion is available. However it is our experience that in large number of cases except producing some certificate, the claimant do not examine the medical expert. Even if he is examined no evidence will be brought on record indicating how the disability hampers the earning capacity of the workmen. If such evidence is available, it would assist the Court to arrive at just and proper compensation. This is insofar as non-schedule injuries.

31. In case where there is employment injury and medical expert is not examined, the quantum of compensation cannot be scaled down awarding less than the minimum awardable under the Act.

32. If a workman continues to do the same work with difficulty in spite of the disability it would not be proper and correct to hold that he suffers from 100% disability. When a skilled person is incapacitated to do the skilled work in which he is specialized, he may be able to do the other odd jobs, but the question would be, would it be possible to get alternative job suitable for him in the light of his disability and would he be able to earn some wages he was earning hitherto. From the above discussion, the criteria seems to be whether he is able to do same work hitherto he was doing and was employed to do such work. For this there has to be cogent and proper evidence.

33. Though the doctor has not said the injured will not be able to do the work of the loader but the evidence of the medical expert would indicate that the injured would not be able to stand, walk or bend his right knee as earlier. There is swelling at the fracture site coupled with pain. The work as a loader in a lorry definitely involves the movements of both the legs, lifting weights, standing and getting into and getting down from the lorry applying force on both the legs. Definitely he will not be able to do his work as a loader. In other words, he is not able to do the work for which he was employed in the lorry. Therefore, the Commissioner was right in taking into consideration the disability of the workman injured as 100%.

34. Admittedly, the accident has occurred subsequent to the amendment of 1995. So far as the wages under Section 4 is concerned, after amendment of the workmen's compensation act, 1995. the maximum wages of a person could be taken as Rs. 2,000/-. For the purpose of calculation, 60% of the same has to be taken into consideration while calculating the compensation under Section 4(a) and 4(b) of the Act as per explanation. Then the quantum of compensation would be 1,200 x 225.22 x 100 by 100 = Rs. 2,70,264/-. So far as interest is concerned, there is no need to interfere with the same.

35. In view of the above reasoning and discussion, the appeal deserves to be dismissed. Accordingly, the appeal stands dismissed.