MANJULA CHELLUR, J. ( 1 ) THIS appeal is filed by the aggrieved workman who had filed WCA/cr-6/93-94. ( 2 ) IN brief appellant herein contended before the Commissioner for Workmen's compensation, Mysore as under: he was a workman in the respondent establishment, which is a manufacturing unit of cream biscuits. As on the relevant date he was 19 years and was getting a salary of Rs. 500 p. m. The machineries of the respondent establishment had become old and in spite of several requests and demands by the workers it did not get them repaired. On 18. 11. 92 when the appellant- applicant was preparing the cream on the concerned machine, his right hand was caught in the machine. As a result the fingers and the wrist portion got crushed in the machine. He was immediately taken to hospital on 18. 11. 1992. He spent lot of money for his treatment in the hospital where he was inpatient for five weeks. On account of the injuries sustained by him he is not in a position to stretch his right hand and, therefore, he cannot work with his right hand. After his discharge his approach for help from the respondent was turned down. With these averments he had sought for lump sum compensation from the respondent employer. ( 3 ) THE respondent entered appearance and filed his objections contending that the applicant was not at all a workman employed in his establishment, much less as assistant in the preparation of cream for the biscuits. He is totally a stranger. As a matter of fact, no accident had taken place on 18. 11. 1992 as alleged by him. Therefore, the question of extending any help did not arise. Further contended that application was filed only in order to make wrongful gain. With these averments the respondent employer had sought for dismissal of the petition with exemplary costs. ( 4 ) ON the basis of the above pleadings the following issues were framed: (1) Whether the applicant proves that he was a workman in the respondent factory? (2) Whether the applicant proves that he was getting the salary of Rs. 500 per month and that he was aged about 19 years? (3) Whether the applicant proves that the accident has occurred to him arising out of and during the course of his employment under the respondent? (2) Whether the applicant proves that he was getting the salary of Rs. 500 per month and that he was aged about 19 years? (3) Whether the applicant proves that the accident has occurred to him arising out of and during the course of his employment under the respondent? (4) To what extent the applicant is entitled to compensation under the Act? (5) To what orders? ( 5 ) AS could be seen from the above records the Commissioner for Workmen's compensation came to conclusion that the applicant-appellant was a workman in the establishment of the respondent employer. He further came to the conclusion that the accident in question did occur out of and during the course of employment. So far as the age and the salary of the workman based on the evidence available, the learned Commissioner came to conclusion that the appellant was 19 years and was getting a salary of Rs. 500 p. m. as on the date of accident. ( 6 ) SO far as quantum of compensation is concerned, apart from the evidence of appellant-applicant, one Dr. L. Yoganara-simhachar, Professor and Head of the Department of Orthopaedics at K. R. Hospital, mysore, was examined as PW 3. Taking into consideration the medical evidence available on record and the personal observation of the appellant-applicant by the commissioner, the Commissioner came to conclusion that the appellant has sustained loss of earning capacity of 40 per cent of a permanent nature. The accident had occurred on 18. 11. 1992, i. e. , subsequent to the Amendment Act of 1984 of the Workmen's Compensation Act. The quantum of compensation was awarded at Rs. 24,000 taking the relevant factor as 225. 22 as per section 4 (1) (c) (ii ). Aggrieved by the quantum of compensation, the present appeal is filed by the learned counsel for the appellant contending that the court below ignored the total disability of the appellant and the assessment of compensation of rs. 24,000 is not proportionate to the actual injuries and the disability suffered by the appellant. It is further contended that the Commissioner ought to have taken into consideration that by the accident in question resulting in permanent disability of the right hand of the appellant, his future ife is ruined. 24,000 is not proportionate to the actual injuries and the disability suffered by the appellant. It is further contended that the Commissioner ought to have taken into consideration that by the accident in question resulting in permanent disability of the right hand of the appellant, his future ife is ruined. ( 7 ) THE learned counsel for the appellant submitted that the court ought to have taken the loss of earning capacity of the appellant at 100 per cent as he is not able to do any work. She further contended that section 10-B of the Workmen's Compensation Act ought to have been taken into consideration. She also contended that the case of the appellant falls under SI. No. 4 of Part II of Schedule I of Workmen's compensation Act. She also brought to the notice of the court the note under the foot of Schedule I and submitted that complete and permanent loss of the use of any limb or member referred to in Schedule I shall be deemed to be equivalent to the loss of that limb or member. ( 8 ) LEARNED counsel for the respondent herein submitted that the quantum of compensation awarded by the court below is just and proportionate to the actual injuries sustained by the appellant herein. ( 9 ) THE points that would arise for the court's consideration are: (1) Whether the order of the Commissioner for Workmen's Compensation, which is under challenge deserves to be set aside? (2) What order? ( 10 ) IN view of the respondent herein not challenging the impugned order, we need not consider the findings of the trial court so far as issues pertaining to the question whether the appellant-applicant was a workman under the respondent herein, whether the appellant-applicant was aged about 19 years and was earning a salary of rs. 500 p. m. as on the date of the accident and whether the accident in question arose out of and in the course of employment? we shall proceed with the assumption that the appellant was a workman in the establishment of the respondent when he was 19 years old on a monthly salary of Rs. 500 and we will also proceed on the assumption that the accident in question arose out of and in the course of employment in view of the fact that respondent has not challenged those findings. 500 and we will also proceed on the assumption that the accident in question arose out of and in the course of employment in view of the fact that respondent has not challenged those findings. ( 11 ) IN view of several decisions of this court and also the Apex Court, we have to consider what would be just and proper compensation in this case. ( 12 ) THE evidence let in before the court below is relevant in order to ascertain whether the appellant is unable to do any work with the right hand? He was examined as PW1. In the accident in question both bones of right hand were fractured and he took treatment at K. R. Hospital as per the deposition of the appellant before the court below. He also underwent plastic surgery, i. e. , skin-grafting. He says apart from working in biscuit factory, he was also making mud pots. He complains that he cannot do said work in the factory and also as a potter as he is not able to bend his right hand, as he is disabled to lift heavy things like bucket of water, etc. ( 13 ) ONE Dr. L. Yoganarasimhachar is examined to speak with regard to the injuries sustained by the appellant, his disability, etc. He treated this patient who was admitted to K. R. Hospital on 18. 11. 1992 with the history of accident. On examination he found radius and ulna of the right hand were fractured. Two nerves were cut. He underwent surgery where the fractures of radius and cut nerves were set right. He was discharged on 23. 11. 1992. Subsequent to the discharge he visited as outpatient for check-up on 2 or 3 occasions. The wrist portion of the right hand is bent. There is a scar on the right hand. He is not able to bend little finger of his right hand. There is wasting of muscles. With the abovesaid disabilities he suffers 40 per cent permanent disability to the right hand. According to the medical expert the appellant- applicant is incapacitated to lift heavy articles with the right hand but he can lead normal day-to-day life. During the cross-examination he confirms that so far as day-to-day work, there is no impediment for the appellant to carry on, but he will not be able to lift heavy articles. According to the medical expert the appellant- applicant is incapacitated to lift heavy articles with the right hand but he can lead normal day-to-day life. During the cross-examination he confirms that so far as day-to-day work, there is no impediment for the appellant to carry on, but he will not be able to lift heavy articles. He denies the suggestion that he does not have 40 per cent permanent disability. ( 14 ) SECTION 2 (1) (1) of Workmen's compensation Act is relevant to decide the real question of controversy. It deals with the definition of total disablement. It reads as under:" (1) '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 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, amount to one hundred per cent or more. " ( 15 ) IT is the case of the appellant that his disability would fall under SI. No. 4 of part II of Schedule I. On perusal of the entire Part II, fracture of radius and ulna do no fall under any of the items of Part II of Schedule I. In order to hold that the applicant-appellant has sustained 100 per cent disability of the right hand, the evidence of the medical expert did not support this. The medical expert has not opined that the applicant is totally incapacitated to carry on any work. According to him except for lifting of heavy articles, he can attend to any other work. The appellant-applicant has not brought on record what exactly is the nature of work he was carrying on in the biscuit factory as assistant in the preparation of cream biscuits. The doctor would have been the best person to bring on record such facts. Therefore, we cannot take into consideration Schedule at all to ascertain the actual loss of earning capacity of the appellant in relation to the injuries sustained by him. The doctor would have been the best person to bring on record such facts. Therefore, we cannot take into consideration Schedule at all to ascertain the actual loss of earning capacity of the appellant in relation to the injuries sustained by him. ( 16 ) LEARNED counsel for the appellant relied on section 10-B of the Workmen's compensation Act and contended that the permanent injury sustained by the appellant herein has resulted in total loss of earning capacity as he is not able to do the work, which he was doing as on the date of the accident. There are several decisions of this court on this aspect, apart from the two decisions of the Apex Court. ( 17 ) IN Pratap Narain Singh Deo v. Srinivas Sabata, 1976 ACJ 141 (SC), question arose before the Apex Court whether the workman who was a carpenter by profession who sustained amputation of his left arm from 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 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 per cent loss of earning capacity. ( 18 ) THIS was questioned in the High court of Orissa and the said application was dismissed. The matter reached the supreme Court. The arguments before the apex Court were 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. The arguments before the apex Court were 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 (1) (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 that 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 elbow, he has evidently been rendered unfit for the work of carpenter 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 acromion to less than 4'/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. " ( 19 ) IN the recent decision in Amar Nath singh v. Continental Constructions Ltd. , 2001 ACJ 643 (SC), the Supreme Court had an occasion to deal with section 4 (1) (c) of the Act read with Schedule I of Part II. " ( 19 ) IN the recent decision in Amar Nath singh v. Continental Constructions Ltd. , 2001 ACJ 643 (SC), the Supreme Court had an occasion to deal with section 4 (1) (c) of the Act read with Schedule I of Part II. ( 20 ) 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 per cent. The Commissioner awarded compensation assessing the loss of vision at 100 per cent 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 per cent. However, their Lordships at para 4 have said after having gone through the papers and having heard learned counsel 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 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 instalments. ( 21 ) 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 per cent disability was wrong. The contention of the claimant was that there is loss in the earning capacity on account of 100 per cent disability. The apex Court has held referring to the decision of Pratap Narain Singh Deo v. Sri-nivas Sabata, 1976 ACJ 141 (SC), turned on its own facts, the principles therein cannot be extended to the present case. Therefore, in the latest case, the Supreme Court merely said the principles laid down in pratap Narain Singh Deo, 1976 ACJ 141 (SC), are not applicable to the facts of the case on hand. ( 22 ) THE decision in Punambhai Khoda-bhai Parmar v. G. Kenel Construction, 1984 ACJ 739 (Gujarat), is of some relevance. Therefore, in the latest case, the Supreme Court merely said the principles laid down in pratap Narain Singh Deo, 1976 ACJ 141 (SC), are not applicable to the facts of the case on hand. ( 22 ) THE decision in Punambhai Khoda-bhai Parmar v. G. Kenel Construction, 1984 ACJ 739 (Gujarat), 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 per cent and the Hon'ble High Court of Gujarat assessed the disability at 100 per cent and enhanced the compensation. They also referred to the case of Pratap narain Singh Deo, 1976 ACJ 141 (SC), 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. ( 23 ) THERE is a Division Bench judgment of our High Court in Divisional Manager, karnataka State Road Trans. Corpn. v. Bhimaiah, 1976 (2) Kar LJ 396. 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, 1976 ACJ 141 (SC), by the Supreme Court was not at all brought to the notice of the Bench. Placing reliance on judgment in General Manager, g. I. P. Railway v. Shankar, AIR 1950 Nagpur 201, the Division Bench of this court held as mentioned above. In this case, the case of pratap Narain Singh Deo, 1976 ACJ 141 (SC), by the Supreme Court was not at all brought to the notice of the Bench. Placing reliance on judgment in General Manager, g. I. P. Railway v. Shankar, AIR 1950 Nagpur 201, the Division Bench of this court held as mentioned above. ( 24 ) THERE is another reported case of this High Court in Karnataka State Road transport Corpn. v. B. T. Somasekhariah, 1994 ACJ 657 (Karnataka), where the division Bench of this court had an occasion to discuss the meaning of partial disablement as defined under section 4 (1) (c) and Schedule I, 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, 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 reported case of National Insurance Co. Ltd. v. R. Vishnu, 1992 ACJ 590 (Karnataka), 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. 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. ( 25 ) IN 1994, the Division Bench held that the facts of R. Vishnu's case, 1992 ACJ 590 (Karnataka), are different from the facts posed before them and they finally opined that the injury suffered by the workman falls under Part II of Schedule I of the act and as per the Schedule it was 20 per cent 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. ( 26 ) THERE is another judgment of this court in Siddappa v. General Manager, karnataka State Road Trans. Corpn. , 1988 ACJ 936 (Karnataka ). In this case it was held that all that section 4 (1) (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 Schedule IV. ( 27 ) WE have several other judgments of this court pertaining to the above isue, which are referred to hereinafter. 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 Schedule IV. ( 27 ) WE have several other judgments of this court pertaining to the above isue, which are referred to hereinafter. One of such judgments is Oriental Insurance Co. Ltd. v. Tajuddin Abdul Rahim Karanche, 1995 ACJ 837 (Karnataka ). 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 workman for which he was employed. It was held as under:"the principles that emerge on the basis of a consideration of the 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 the 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 the present job and the potential earning capacity in any other or alternate areas of employment. This evidence is crucial and is also 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. This evidence is crucial and is also 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 opinions differ when more than one doctor is examined or where the applicant or the employer produced 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. " ( 28 ) IN another case in Oriental Insurance Co. Ltd. v. Kashim, 1996 ACJ 928 (Karnataka), pertaining to Motor Vehicles act referring to section 147 of 1988 and also rule 100 of the Motor Vehicles Rules, 1989, it was said that an employee of the owner of vehicle if travelling in course of employment even as a spare driver not actually driving the vehicle at the time of 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 per cent even though permanent total disability is not that much. ( 29 ) IN another case in Oriental Insurance Co. Ltd. v. Raju, 1998 ACJ 1025 (Karnataka), this court held that under section 4 (1) (c) the permanent partial disablement has to be examined while awarding compensation. It was a case where there was amputation of arm and the doctor had certified that the workman suffered 80 per cent disability and the compensation was paid for 100 per cent. Ltd. v. Raju, 1998 ACJ 1025 (Karnataka), this court held that under section 4 (1) (c) the permanent partial disablement has to be examined while awarding compensation. It was a case where there was amputation of arm and the doctor had certified that the workman suffered 80 per cent disability and the compensation was paid for 100 per cent. It was held that the disability cannot be assessed at 100 per cent in relation to loss of earning capacity as he could earn his livelihood by performing some other functions which would yield lower income. ( 30 ) IN the case of United India Insurance Co. Ltd. v. Boregowda, 2000 ACJ 1255 (Karnataka), it was held as under:"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. 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. 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 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, the present case has been a case of total permanent disablement. " ( 31 ) IN the case of National Insurance co. Ltd. v. Nyaya Mathasab Chouse Sab muke, 2000 ACJ 1445 (Karnataka), 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 per cent of disability. " ( 31 ) IN the case of National Insurance co. Ltd. v. Nyaya Mathasab Chouse Sab muke, 2000 ACJ 1445 (Karnataka), 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 per cent of disability. But the Commissioner held that the injuries suffered by the workman has resulted in 100 per cent disability and this court has held that by the nature of injuries suffered by the workman it cannot be said that there was 100 per cent 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 Workmen's compensation Act, 1923. ( 32 ) IN the case of Nisar Ahmed Abdul rahiman v. Babulal Achal Singh, 2000 acj 58 (Karnataka), 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 per cent 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 per cent or more than 100 per cent 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. ( 33 ) ANOTHER case is Syed Abdul Samad v. Jabbar Hussain, 2001 ACJ 574 (Karnataka ). It was a case of driver who suffered severe injury to the left hand and the doctor assessed this disability as 40 per cent. The Commissioner assessed the disability at 100 per cent and awarded compensation. ( 33 ) ANOTHER case is Syed Abdul Samad v. Jabbar Hussain, 2001 ACJ 574 (Karnataka ). It was a case of driver who suffered severe injury to the left hand and the doctor assessed this disability as 40 per cent. The Commissioner assessed the disability at 100 per cent 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 of earning capacity cannot be 100 per cent but has to be in proportion to the medical evidence in that regard. ( 34 ) IN another case in National insurance Co. Ltd. v. A. Gopala Reddy, ILR 2001 Kar 1546, the workman lost three fingers of left hand. He was a fitter under the employer. The Commissioner compensated 100 per cent loss of earning capacity holding that there is 100 per cent 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 No. 8 in Part II of Schedule I, which would result in 30 per cent of loss of earning capacity. Therefore, it cannot be 100 per cent disability. ( 35 ) ANOTHER decision is National Insurance Co. Ltd. v. Abdul Majeed, 2002 ACJ 1497 (Karnataka ). It was a case where the workman, a driver in a lorry who met with an accident and sustained undisplaced fracture of the right mid third (right humerus), fracture of right tibia and cerebral oedema. He approached the Commissioner contending that he sustained permanent disability and there is 100 per cent loss of earning capacity. The medical certificate provided 20 per cent of disability and the Commissioner granted for 100 per cent disability. This court came to the conclusion and felt that there was no evidence to grant 100 per cent 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. ( 36 ) THE relevant cases pertaining to the question involved are referred above. 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. ( 36 ) 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 the employees' State Insurance Act and Motor vehicles 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. ( 37 ) HOWEVER, it is clear from several decisions referred to supra that ultimately one has to look to the actual avocation that is carried on by the workman-claimant and then assess the loss of earning capacity. ( 38 ) WHAT the court has to see is whether the disability 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 a 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. ( 39 ) 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 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 workman. If such evidence is available, it would assist the court to arrive at just and proper compensation. Even if he is examined no evidence will be brought on record indicating how the disability hampers the earning capacity of the workman. If such evidence is available, it would assist the court to arrive at just and proper compensation. This is for non-schedule injury. ( 40 ) 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 mini- mum awardable under the Act. ( 41 ) IF a workman continues to do the same work with difficulty in spite of the disability it would not be proper and cor- rect to hold that he suffers from 100 per cent 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 alter- native job suitable for him in the light of his disability and would he be able to earn same 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. ( 42 ) IN the present case, though the doc- tor is examined in support of the conten- tions of the appellant that he is not able to do the work which he was hitherto doing, i. e. , as on the date of accident, no evidence was elicited through the medical expert whether the appellant would be able to carry on his work in the respondent unit as assistant in the preparation of the cream for the biscuits. Though he has come out with another avocation as potter during the evidence, he has not averred the same in his application before the Commissioner. Therefore, the said avocation of preparing pots cannot be accepted. ( 43 ) SECTION 10-B deals with issuance of 7 days notice by employer to the concern- ed authority if law requires such notice. This has no relevance to the facts of the present case. Therefore, the said avocation of preparing pots cannot be accepted. ( 43 ) SECTION 10-B deals with issuance of 7 days notice by employer to the concern- ed authority if law requires such notice. This has no relevance to the facts of the present case. ( 44 ) IN the absence of the evidence that he has sustained total disablement, i. e. , 100 per cent of loss of earning capacity and in the absence of any other material to show what exactly was the nature of duties he was hitherto attending, the question would be, what would be just and proper compen- sation? ( 45 ) THE Commissioner for Workmen's compensation has rightly assessed the compensation under section 4 (1) (c) (ii) of the Workmen's Compensation Amendment act, 1984. He has also rightly awarded the interest at 6 per cent per annum from the date of accident on the compensation of rs. 24,000 till the date of deposit. ( 46 ) ACCORDINGLY, I do not find any good ground to interfere with the said order. Appeal dismissed. --- *** --- .