AMITAVA LALA, J. ( 1 ) THIS appeal has been preferred by the insurance Company under Section 30 of the workmens Compensation Act, (hereinafter referred to as to Act) challenging the award dated 15th May 2000 passed by the commissioner. By the impugned award, a disabled person has been awarded a sum of rs. 2,60,292 as compensation along with interest at the rate of 12% per annum treating his disability as 100%. ( 2 ) NO case has been made out by the appellant in the Court below in connection with the applicability of the Schedule I Part II of Section 2 (g) of the Act about disability. Such point has been raised by the appellant before this Court for the first time. The Tribunal has relied upon a four-Judge judgment of the supreme Court, in the case of Pratap Narain singh Deo v. Srinivas Sabata and another\ wherein it has been held as under: "5. The expression total disablement has been defined in Section 2 (1) (i) of the Act as follows- (i) 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 a 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 carpenter as the work of carpentary cannot be done by one hand only. This is obviously a reasonableand correctfinding. Counsel torthe 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 3 of Part 11 of Schedule I, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 1/2" below the tip of olecranon. There is also no justification for the other argument which has been advanced with reference to item 3 of Part 11 of Schedule I, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion 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. " ( 3 ) ALTHOUGH the point was not agitated, since it is a question of law, Mr. K. S. Amist learned Counsel is allowed to make his submission. He has stated that disablement is in the nature of amputation of lower limb below the knee, therefore, there is no loss of earning capacity to the claimant. Hence, provisions of Section 2 (g) of the Act read with by Schedule I part II will be altracted in this case for 50% disablement and loss of earning capacity accordingly. ( 4 ) IN the instant case, the claimant is the driver, therefore, if the lower limb is amputated below the knee there would be a total loss of earning capacity. He cannot be able to drive any vehicle, therefore, it will fall under section 2 (1) of the Act, i. e. , the definition of total disablement for 100% compensation which should be awarded as perthe Schedule. ( 5 ) IN the case of Amar Nath v. Continental constructions Ltd. , New Delhi wherein the division Bench of the Supreme Court wanted to carve out certain facts from the ratio as laid down by the 4-Judge Bench of the Supreme court in Pratap Narain Singh Deos case (supra) at the time of considering the case about a loss of earning capacity, the Court held that the claimant himself stated that he is fit for work and his evidence disclosed the same. Therefore, the High Court reduced to 30% when the Supreme Court held that it was justifiable. In National Insurance Company limited v. Mubasir Ahmad and another, it was held that loss of earning capacity is not a substitute for percentage of the physical disablement. It is one of the factors taken into account. It was further held that without indicating any reason or basis the High Court held that thee was 100% loss of earning capacity. In National Insurance Company limited v. Mubasir Ahmad and another, it was held that loss of earning capacity is not a substitute for percentage of the physical disablement. It is one of the factors taken into account. It was further held that without indicating any reason or basis the High Court held that thee was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. In the instant case, the commissioner arrived at a conclusion being backed by the judgment of the Supreme court as referred above. It has also held in the judgment that the loss of earning capacity is, therefore, not a substitute but percentage of physical disablement meaning thereby if the physical disablement and loss of earning capacity is made together in that case only one can be declared 100% disabled as per part I of the Schedule. ( 6 ) WE have considered the pros and cons. We are of the view that the appeal cannot be held to be sustained, therefore, the appeal stands dismissed. Interim order, if any, in connection with the application stands vacated. However, no order is passed as to costs. . .