ORDER: 1. Appellant, while working as the driver of the lorry belonging to the 1st respondent, which was insured with the 2nd respondent, suffered injuries in an accident that occurred on 22.06.1996 at about 1.30 P.M. So he filed an application under the Workmen's Compensation Act, 1923 (for short 'the Act') seeking compensation of Rs.2,50,000/- from the respondents. First respondent chose to remain ex parte. Second respondent filed its counter contesting the claim. In support of his case, the appellant, besides examining himself as P.W.1, examined the doctor who treated him as P.W.2 and marked Exs.A.1 to A.7. The Commissioner, having held that the appellant sustained injuries out of and during the course of his employment with the 1st respondent and suffered a permanent disability resulting in loss of earning capacity of 70%, awarded Rs.1,69,733/- as compensation to the appellant against the respondents. Dissatisfied with the compensation awarded to him, the injured workman preferred this appeal. 2. The contention of the learned counsel for the appellant is that in view of the evidence of P.W.2 the doctor that the disability of the appellant as driver is 100%, the Commissioner was in error in fixing the loss in earning capacity of the appellant at 70% only and ought to have fixed the disability of the appellant at 100% by relying on National Insurance Company Ltd Vs. Rajesh Helmandge and another1, Janatha Modern Rice Mills Vs. G.Satyanarayana2, Pratap Narain Singh Deo Vs. Shrinivas Sabata and another3, Pamarthi Subba Rao Vs. H. Rama Rao and another4, Shivalinga Shivanagowda Patil Vs. Erappa Basappa Bhavihala5, The National Insurance Co. Ltd Vs. Mohd. Saleem Khan and another6, New India Assurance Company Ltd., Vs. Kotam Appa Rao and another7, Lingampalli Rajam (died) by L.Rs. Vs. Colliery Manager, Morgan's Pit Singareni Collieries Co., Ltd8, Rayapati Venkateswara Rao Vs. Mantai Sambasiva Rao and another9, G. Anjaneyulu Vs. Alla Seshi Redy and another10, Gorla Obula Reddy Vs. K. Rajgopal Reddy and another11 and Executive Engineer, Public Works Department and another Vs. Bhimrao Manikrao Unhale12. Kotam Appa Rao and another7, Lingampalli Rajam (died) by L.Rs. Vs. Colliery Manager, Morgan's Pit Singareni Collieries Co., Ltd8, Rayapati Venkateswara Rao Vs. Mantai Sambasiva Rao and another9, G. Anjaneyulu Vs. Alla Seshi Redy and another10, Gorla Obula Reddy Vs. K. Rajgopal Reddy and another11 and Executive Engineer, Public Works Department and another Vs. Bhimrao Manikrao Unhale12. The contention of the learned counsel for the 2nd respondent is that inasmuch as P.W.2 stated that the disability of the appellant works out up to 40% only, the Tribunal, in fact was in error in assessing the loss in the earning capacity of the appellant at 70% and the appellant, instead of feeling happy with the compensation awarded on the basis that he has 70% permanent disability when the evidence of P.W.2 the doctor shows that he has only 40% permanent disability filed this appeal avariciously to claim compensation on the basis that he has 100% permanent disability and contended that inasmuch as the injury suffered by the appellant is a non schedule injury, the evidence of P.W.2 the doctor is relevant for assessing the loss in the earning capacity, and contended that inasmuch as the decisions relied on by the learned counsel for the appellant relate to schedule injuries appellant is not entitled to seek compensation on the basis that he has 100% disability and relied on New India Assurance Company Limited Vs. Abdul Khader Jilani13 in support of the said contention. 3. The evidence of P.W.2 the doctor who treated the appellant is that the appellant suffered fractures of both legs and that the right leg of the appellant is shortened by 4 inches with muscle weakness of 4th grade and that the disability of the appellant is 40% which is of permanent nature, and that the appellant cannot work as a driver as the shortening of leg by 4 inches is as good as non functional, and so he assesses the loss of earning capacity of the appellant at 50% and as a driver the loss of earning capacity of the appellant is 100% as he is not fit to work as a driver as he cannot walk without the aid of crutches, and would have permanent limp. 4. 4. Janatha Modern Rice Mills case (2 supra) relates to amputation of the left hand, Pratap Narain Singh Deo case (3 supra) relates to amputation of left hand above elbow, Pamarthi Subba Rao case (4 supra) relates to amputation up to knee level of the right leg, Gorla Obula Reddy case (11 supra) relates to amputation of right fore arm, Bhimrao Manikrao Unhale case (12 supra) also relates to amputation of left arm above elbow joint. As this is not a case relating to amputation the above decisions are of no help in deciding this case. 5. In Abdul Khader Jilani case (13 supra) relied on by the learned counsel for the 2nd respondent a division bench of this Court while confirming the view taken in Rajesh Helmandge case (1 supra) held that the quantum of compensation to be awarded to a workman, in case of a non schedule injuries would depend on the assessment made by the qualified medical practitioner on the issue of the loss of earning capacity of the workman. In Rajesh Helmandge case (1 supra) the workman who sustained multiple injuries contended that he completely lost his earning capacity. Though the doctor who issued the medical certificate was not examined, the Tribunal held that the workman is totally disabled and lost 100% earning capacity the Commissioner awarded compensation to him on that basis and also imposed penalty. Questioning the order of the Commissioner the insurer of the vehicle preferred an appeal. After considering all the contentions raised by the insurer, the learned Judge while upholding the compensation awarded by the Commissioner, basing on the evidence that he has totally lost his earning capacity due to the injuries suffered in the accident. In Pamarthi Subba Rao case (4 supra) also a division bench clearly held that for arriving at the compensation payable in case of non specified injuries it has to be seen whether the workman is totally do the work which he was doing at the time of the accident and such disablement cannot be decided without the aid of medical evidence. 6. 6. In Shivalinga Shivanagowda Patil case (5 supra) a full bench of Karnataka High Court held that in cases where assessment of the loss of earning capacity is disputed by the either party, the Commissioner has to decide the said dispute with reference to the work that the workman was capable of doing at the time of accident on the basis of the evidence of the medical practitioner. 7. The ratio in Mohd. Saleem Khan case (6 supra) is that if the workman is incapacissitated to do the work, which he was capable of performing at the time of the accident, it is 'total disablement'. 8. In Kotam Appa Rao case (7 supra) the driver of a vehicle sustained fracture of right thigh and right hand apart from other injuries. The doctor certified that the driver is not capable of driving any longer vehicles. The learned Judge held that that disability amounts to total disablement and cannot be treated as partial disablement merely on the ground that the doctor noted the same as disability as 50%. 9. In Lingampalli Rajam case (8 supra) the leg of the workman was shortened by half inch with stiffness of ankle. So his services were terminated as he was medically unfit for the job which he was doing at the time of accident. The Court held that he is entitled to compensation on the basis that he has 100% disability. 10. In Mantai Sambasiva Rao case (9 supra) cleaner of a lorry sustained a compound fracture of his right leg and was not in a position to discharge his duty as a cleaner any longer. So his loss of earning capacity was fixed at 100%. 11. In G. Anjaneyulu case (10 supra) the driver of a lorry suffered fracture of his right shoulder and right ribs. Doctor certified his disability as 40% and stated that he cannot perform the job of driver, which he was performing at the time of accident. The Court held that the loss of earning capacity of the workman is 100% though his physical disability as certified by the doctor is only 40%. 12. Doctor certified his disability as 40% and stated that he cannot perform the job of driver, which he was performing at the time of accident. The Court held that the loss of earning capacity of the workman is 100% though his physical disability as certified by the doctor is only 40%. 12. From the ratio in the above decisions rendered by our High Court it is seen that this High Court is consistently taking a view that in cases where the injuries sustained by a workman completely disable him from performing the work, which he was doing at the time of accident, it amounts to 100% disability. The evidence of the doctor who treated the appellant clearly shows that though the physical disability of the appellant is only 40% as a driver his disability is 100%. As the appellant suffered injuries while working as a driver, it cannot but be said that he suffered 100% disability as a driver and so he is entitled to compensation on the basis that he suffered 100% disability. 13 As per Section 4(1) (b) of the Act, in case of permanent total disablement, award equal to 60% of the monthly wages of the injured workman multiplied by the relevant factor or an amount of Rs.90,000/- whichever is more has to be paid to the workman. Since the Commissioner fixed the age of the appellant as 33 years and his wage at Rs.2,000/- per month and as the relevant factor is 201.66 as per 4th schedule, the total compensation to which the appellant entitled comes to 201.66 X 2,000 X 60/100 = Rs.2,41,992/-. 14 In view thereof, the appeal is allowed in part. The award passed by the Commissioner is modified and an award is passed for Rs.2,41,992/- in favour of the appellant against the 2nd respondent. Appellant is entitled to interest at 9% p.a. on the enhanced compensation from the date of appeal till the date of deposit. Rest of the claim of the appellant is dismissed without costs. Parties are directed to bear their own costs in this appeal.