JUDGMENT : H.K. Rathod, J. Heard learned advocates appearing on behalf of respective parties. 2. This appeal is filed by appellant under Section 30 of Workmen Compensation Act challenging judgment and order passed by Workmen's Compensation Commissioner, Baroda in Workmen's Compensation Case No.53 of 1998 decided on 30th July 2001. The Commissioner has awarded compensation of Rs.1,07,094/- with 6% interest and 20% penalty Rs.21,490/- with cost of Rs.1,000/-. 3. In Civil Application No.1038 of 2002 filed with present First Appeal, following order is passed by Division Bench of this Court on 20th March 2002, which is quoted as under : "Heard the learned counsel for the respective parties. On the facts and circumstances of the case, it is directed that opponent No.1 original claimant may withdraw 20% of the amount deposited by the applicant with the Commissioner of Workmen's Compensation without security and a further 30% of the deposited amount on furnishing security. The balance of 50% of the amount deposited shall be invested in a fixed deposit with any Nationalised Bank in the name of the Registry initially for a period of three years and on maturity shall be reached by one year at a time without further orders in this regard. Interest that may accrue on this deposit shall not be disbursed, but, shall be ordered to the principal amount on maturity. This application is accordingly disposed of." 4. Learned advocate Mr. K.K. Nair raised number of contentions before this Court against judgment and order passed by Commissioner. The amendment is made in appeal memo which has been allowed by this Court where contention is raised that medical certificate Exh.30, which admittedly does not state the extent of loss of earning capacity of claimant, which goes to root of the case. The further contention is that Commissioner has failed to appreciate that it was mandatory for petitioner to have adduced appropriate evidence showing extent of loss of earning capacity and that in absence of such evidence, was it permissible for Commissioner to assess 100% loss of earning capacity in instance case. The Commissioner has failed to appreciate that impugned medical certificate Exh.30 does not satisfy statutory requirements of Section 4(1)(c)(ii) of Workmen's Compensation Act. In short, his submission is that medical certificate produced vide Ehx.30 is not proved because Doctor was not examined by claimant before Commissioner. The Commissioner has failed to appreciate that impugned medical certificate Exh.30 does not satisfy statutory requirements of Section 4(1)(c)(ii) of Workmen's Compensation Act. In short, his submission is that medical certificate produced vide Ehx.30 is not proved because Doctor was not examined by claimant before Commissioner. He also raised contention that 26% disability which is permanent partial disability, not permanent total disability, therefore, Commissioner has committed gross error in considering permanent total disablement being 100%. He also raised contention that injury is not covered by Schedule injury and therefore, Commissioner has committed error in considering 100% disability. He also emphasised that in medical certificate Exh.30, general condition has been considered good and he is declared to be fit for duty by Doctor. Even though, this medical certificate though it was on record and exhibited, but, this note of Doctor that he has been considered fit for duty, ignored by Commissioner. He also submitted that 26% disability has been reduced by claimant to 20% and on that basis, amount of compensation is to be worked out not on the basis of 100% permanent disability. He also raised contention that accident occurred on 17th July 1997, subsequently in the year of 1998, he renewed driving licence. If he is not fit for work of driver, then, there is no question of driving licence to be renewed by claimant. He also submitted that earlier licence period was expired, therefore, it was renewed and such renewal of driving licence without test is not permissible, therefore, renewal suggests that he is fit for driving work. He relied upon certain decisions reported in 1991 ACJ 638 in case of State of Gujarat v. Rajendra Khodabhai Deshdia and Anr., where, Court has held that in a non scheduled injury, workman will have to show by leading evidence loss of earning capacity suffered by him due to injury. In 18 GLR 681, Amubibi Wd/o. Sheikhamu Sheikhmahomed v. Nagri Mills Co. Ltd., where, it is held that an opinion of an expert is inadmissible, unless expert is examined and gave reasons in support of opinion. He could be cross-examined by other side. He also relied upon one decision of Division Bench of Calcutta High Court reported in 1983 ACJ 615 in case of Bengal Coal Co. Ltd., where, it is held that an opinion of an expert is inadmissible, unless expert is examined and gave reasons in support of opinion. He could be cross-examined by other side. He also relied upon one decision of Division Bench of Calcutta High Court reported in 1983 ACJ 615 in case of Bengal Coal Co. Ltd. v. Barhan Gope, where, it is held that medical certificate not supported by evidence of doctor is mere hearsay evidence and it was difficult to measure physical disability and extent of diminution of earning capacity of claimant. So, according to him, claimant is not incapable of doing any work on the ground of injury suffered. Therefore, purshis Exh.25 where 26% disability has been reduced to 20%, accordingly, claimant is entitled to reduce amount of compensation considering 20% disability only and not considering 100% disability. He also relied upon recent decision of Apex Court in case of Oriental Insurance Co. Ltd. v. Mohd. Nasir & Anr., reported in 2009(8) Scale 161 , where, distinction has been made between 'permanent total disablement' and 'permanent partial disablement'. The loss of earning is not a substitute for percentage of physical disablement. 5. Learned advocate Mr. Nair also relied upon another decision of Apex Court in case of National Insurance Co. Ltd. v. Mubasir Ahmed and Another reported in 2007 ACJ 845 , where, question under Section 4(1)(c)(ii) of Workmen's Compensation Act has been considered that; Permanent partial disablement – Non-schedule injury – Doctor indicated percentage of permanent partial disablement, functional disability and loss of earning capacity to the extent of 80, 65 and 80 per cent in three cases and Commissioner awarded compensation accordingly – Whether the High Court was justified in assessing 100 per cent loss of earning capacity without indicating any reason or basis – Held, 'no' by Apex Court. 6. Learned advocate Mr. Nair also relied upon recent decision of Apex Court in case of Ramprasad Balmiki v. Anil Kumar Jain & Anr., reported 2008 (13) Scale 18 . He submitted that Apex court has held that there exists distinction between a 'total disablement' and 'total permanent disablement' as contained in Schedule I Part I of the 1923 Act. Sufferance of fracture by itself resulting in shortening of leg to some extent does not come within the purview of 'permanent total disablement' even under the 1923 Act. He submitted that Apex court has held that there exists distinction between a 'total disablement' and 'total permanent disablement' as contained in Schedule I Part I of the 1923 Act. Sufferance of fracture by itself resulting in shortening of leg to some extent does not come within the purview of 'permanent total disablement' even under the 1923 Act. The Apex Court has considered that permanent disability suffered by appellant is only 40% and not 100%. The Apex Court has also observed that a claim for obtaining 100% compensation for his permanent disability must be supported by reasons. The relevant observations are made in last portion of Para 10, which is quoted as under : "10. xxx xxx xxx A claim for obtaining 100% compensation for his permanent disability must be supported by reason as has been held by this Court in National Insurance Co. Ltd. v. Mubasir Ahmed and Anr. [ (2007) 2 SCC 349 ]. No material has been brought on record by the appellant in this regard." The relevant Para 7 and 8 of above decision are also relevant which are quoted as under : "7. The Civil Surgeon of Gwalior, Dr. R.P. Sharma had granted the certificate of disability in favour of the appellant only on the basis of the X-ray reports. In his deposition, he stated: "It is true that I myself has not treated the applicant Ramprasad. The certificate given by me is based on the record of treatment of the applicant, self examination and X-ray report. Himself said that X-ray of the applicant was also carried out. After perusing the X-ray plate enclosed in the case, I cannot say that whether there is X-ray plate which I have asked or not. It is true to say that in my certificate I have not mentioned the kind and percentage of disability caused to Ramprasad. It is not necessary to describe the same in such certificate." It is accepted that the appellant obtained treatment from different Orthopedic specialists. 8. It is not a case where the claimant had an option to file a claim petition either under the Act or under the 1923 Act. In Pratap Narain Singh Deo (supra), whereupon reliance has been placed by Mr. Mody, this Court was dealing with a case under the 1923 Act. Respondent therein suffered injuries resulting in amputation of his left arm from the elbow. In Pratap Narain Singh Deo (supra), whereupon reliance has been placed by Mr. Mody, this Court was dealing with a case under the 1923 Act. Respondent therein suffered injuries resulting in amputation of his left arm from the elbow. In that view of the matter, the Commissioner of Workmen adjudged him to have lost "100 per cent of his earning capacity" as by loss of his left hand he was evidently rendered unfit for the work of carpenter as the same was not possible to be done by one hand only. This Court, however, although took notice of the definition of the term `total disablement' as contained in Section 2(1)(l) of the 1923 Act but had no occasion to consider the proviso appended thereto, which reads as under: "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;" 7. Except that, no other submission is made by learned advocate Mr. K.K. Nair. 8. Learned advocate Mr. D.N. Pandya appearing on behalf of respondent claimant supported judgment and order passed by Workmen's Compensation Commissioner. He submitted that once medical certificate of disability is produced on record by claimant and exhibited it by making endorsement by other side appellant, then, formal proof regarding that document is not necessary and effect must be given to document and contents must be deemed to be proved relying upon decision of Division Bench of this Court in case of Govind Kana v. Kana Tida Mokaria reported in 1989 (1) GLR 122 . The relevant discussion is made in Para 4 which is quoted as under : "4. It is an undisputed position that the appellant was employed as a driver by respondent No.1. While he was working as driver, the accident occurred. It is held proved that the accident arose out of and during the course of employment. On account of such accident, he received injury which resulted in permanent partial disablement. The applicant had produced a list of documents at Exh. 107. Thereby, two certificates have been produced on record. One is that of Dr. It is held proved that the accident arose out of and during the course of employment. On account of such accident, he received injury which resulted in permanent partial disablement. The applicant had produced a list of documents at Exh. 107. Thereby, two certificates have been produced on record. One is that of Dr. K.K.Mittal, dated May 21, 1986 and another is that of Irwin Hospital, Jamnagar dated March 19, 1985.In the list of documents an endorsement is made by the learned Advocate representing the other side to the effect that he had no objection if the documents are exhibited. Pursuant to the aforesaid endorsement Exh. 108 is given to the Medical Certificate issued by Irwin Group of Hospitals, Jamnagar. No exhibit is given to the certificate issued by Dr. KK Mittal. We fail to understand how the certificate issued by Dr. KK Mittal has not been given pucca exhibit by the Court. Once the other side has made an endorsement to the effect that there was no objection to exhibiting the documents mentioned in the list, both the documents should have been given pucca exhibit. Moreover, in his evidence, the appellant has stated that he had taken disability certificate of 80 per cent from Dr. KK Mittal and that he had produced the said certificate at mark 107/2 and in that certificate, the Doctor has signed in his presence. The aforesaid deposition has been recorded on June 25, 1986. The endorsement on list Exh. 107 has also been made by the learned counsel appearing for the other side on the same date. Therefore, it is clear that during the course of the evidence of the applicant, application Exh. 106 was submitted together with the list of documents requesting that the documents be permitted to be produced. In the list of documents I(Exh.107), the Advocate for the other side has made endorsement to the effect that he had no objection if the documents are exhibited. Despite the aforesaid position of record, the learned Commissioner has observed to the effect that "these certificates are exhibited but the exhibition of the certificate is not sufficient to prove the contents". We fail to understand how such a view could be taken by the learned Commissioner. Despite the aforesaid position of record, the learned Commissioner has observed to the effect that "these certificates are exhibited but the exhibition of the certificate is not sufficient to prove the contents". We fail to understand how such a view could be taken by the learned Commissioner. Once the Medical Certificates have been exhibited with the consent of the other side without any reservation whatsoever, the contents of the medical certificates have got to be read as part of the evidence. This would be so even if the strict principles of Civil Procedure Code and Evidence Act. But as per the settled legal position the provisions of Civil Procedure Code and Evidence Act do not apply to the proceedings under Workmen's Compensation Act." 9. Learned advocate Mr. Pandya also relied upon decision of Division Bench of Kerala High Court in case of D. Venu and Ors. v. Senen Fernandez and Ors. reported in 1995-II LLJ 1113, where, Division Bench of Kerala High Court has considered that; Doctor certifying that the injuries caused total disablement to the left hand and that the disability is 40% - Medical certificate, acceptance of by the Commissioner – Medical officer need not be called and examined – probative value of the medical certificate has to be adjudged by the Commissioner vis-a-vis other evidence in the proceedings – correctness of certificate not questioned – cannot be questioned before the High Court at a belated stage. The Evidence act is not applicable to Tribunal means Commissioner. The relevant discussion is made in Para 5 which is quoted as under : "5. When we asked counsel, it was stated that the appellants did not summon the doctor who issued the certificate for the purpose of examining him. They did not take any steps before the Commissioner to show that the certificate issued by the doctor is not a true one. The appellants having not questioned the certificate before the Commissioner cannot at this belated stage contend that the non-examination of the doctor has prejudiced their case. The fact that the appellants did not question exhibit A-3, the medical certificate, can only mean that they have accepted that certificate before the Commissioner. The appellants having not questioned the certificate before the Commissioner cannot at this belated stage contend that the non-examination of the doctor has prejudiced their case. The fact that the appellants did not question exhibit A-3, the medical certificate, can only mean that they have accepted that certificate before the Commissioner. If the appellants really wanted to challenge exhibit A-3 they could have summoned the doctor which they did not do and under the circumstances the Commissioner was right in accepting exhibit A-3 and granting the respondent an award on the basis of that certificate." 10. Learned advocate Mr. Pandya also relied upon decision of Division Bench of this Court reported in 1985-I LLJ 98 in case of Punambhai Khodabhai Parmar v. G. Kenel Construction and another, where, Para 3 is relevant, therefore, quoted as under : "3. The view taken by the learned Commissioner does not seem to be correct. Permanent total disablement has to be judged from the point of view of the job which the appellant was doing. As pointed out above, the appellant was employed as a driver of truck as disclosed by his evidence. He is not now in a position to work as driver on account of permanent disability suffered by him. Therefore, so far as his employment as driver is concerned, there is permanent total disability. In Pratap Narain Singh Deo v. Srinivas Sabata [1976-1 LLJ 235], a carpenter was doing work and in course of employment fell down and sustained injuries as a result his left arm above elbow was amputated. He therefore, became unfit as carpenter. The Supreme Court held that disablement of the carpenter was total and not partial as work of carpentry cannot be done by one hand only. In the instant case, the appellant has become unfit for work of a driver. He cannot do the work of driving with his left arm. Therefore, disablement is total and not partial, as the work of driver cannot be done by him with on arm only. The learned Commissioner, therefore, ought to have allowed the appellant full compensation of Rs.26,880/- and not only Rs.18,816/-. The appellant is, therefore, entitled to additional compensation of Rs.8,064/- with 6 per cent interest and costs." 11. Learned advocate Mr. Pandya also relied upon one decision of Andra Pradesh High Court reported in 1995-II LLJ 436 in case of New India Assurance Co. The appellant is, therefore, entitled to additional compensation of Rs.8,064/- with 6 per cent interest and costs." 11. Learned advocate Mr. Pandya also relied upon one decision of Andra Pradesh High Court reported in 1995-II LLJ 436 in case of New India Assurance Co. Ltd. v. Kotam Appa Rao & Anr., where, Para 6 is relevant, therefore, it is quoted as under : "6. The next contention urged by the learned Counsel for the appellant is that the Commissioner erred in estimating the disability of the 1st respondent at 90% when the Doctor's disability certificate estimated it at 50%. He also contends that the Commissioner has no power to enhance the disability suo motu. In this contention, it has to be noticed that in the disability certificate dated April 20, 1990 issued by the Orthopaedic Surgeon, marked as Ex.P-5, the extent of disability was noted as 50% and it was also noted as follows: 'Partial permanent disability. He cannot drive the vehicle.' From this, it is clear that the 1st respondent could not do any more work as driver of motor vehicles. The permanent partial disablement suffered by the 1st respondent is not by virtue of an injury specified in Part II of Schedule I to the Act. In view of the observation of the Doctor that the 1st respondent would not be able to drive vehicles, the Commissioner could have held that the disablement in the present case was total in view of the definition of total disablement in clause (1) of sub-section (1) of section 2 of the Act which is as follows: "(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 accident resulting in such disablement...................... " A similar question arose before this Court in National Insurance Co. Ltd. v. Mohd. Saleem Khan (1992-II-LLJ-337). In that case also, it was contended that the Doctor found that the disability was only to an extent of 50 % and that the Commissioner erred in awarding compensation as if it was a case of permanent total disablement instead of treating it as permanent partial disablement. A learned Single Judge of this Court held as follows: - 'By the date of the accident, R-1 herein was working as a driver of the truck, a heavy vehicle. A learned Single Judge of this Court held as follows: - 'By the date of the accident, R-1 herein was working as a driver of the truck, a heavy vehicle. It is in evidence that in view of the injuries, R-1 herein is not fit to drive the heavy vehicle. Thus, it is a case of disablement which incapacitated R-1 herein from driving the heavy vehicle i.e. the work which he was capable of performing at the time of the accident. Such disablement comes within the purview of total disablement as defined in Section 2(1)(1), Workmen's Compensation Act, though the doctor held that physical impairment and loss of physical function was to the extent of 50% only. The work which the workman was capable of performing at the time of the accident is material to consider whether it is a case of total disablement or not, in view of the injuries sustained in the accident. If the workman is incapacitated to do all the work which he was capable of performing at the time of the accident, it is a case of total disablement. It may be that in view of the above injuries, the workman is capable enough to render some other sort of work but still when there is incapacity to do the work which he was capable of performing by the date of the accident, it is a case of total disablement. The judgment in Pratap Narain Singh Deo v. Shrinivas Sabata ( 1976 (1) LLJ 235 ) (SC) and Punambhai Khodabhai Parmar v. G.Kenel Constructions (1985 (1) LLJ-98) (Guj), support the above contention for R-1 herein." 11-A. Learned advocate Mr. Pandya further relied upon decision of Apex Court in case of Pratap Narain Singh Deo v. Sriniwas Sabata and another reported in 1976 (1) LLJ 235 . The relevant discussion is made in Para 4 & 5, which are quoted as under : "4. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of his employment with the appellant. It is also not in dispute that the injury resulted in amputation of his left arm at the elbow. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of his employment with the appellant. It is also not in dispute that the injury resulted in amputation of his left arm at the elbow. It has however been argued that the injury did not result in-permanent total disablement of the respondent, and that the Commissioner committed gross error of law in taking that view as there was only partial disablement within the meaning of section 2(1)(g) of the Act which should have been deemed to have resulted in permanent partial disablement of the nature referred to in item 3 of Part II of Schedule I of the Act. This argument has been advanced on the ground that the amputation was from 8" from tip of acromion and less than 4½" below tip of olecranon. As will appear, there is no force in this argument. 5. The expression "total disablement" has been defined in section 2(i) (1) of the Act as follows: "(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." 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 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. 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 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 4½" 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." 12. I have considered submissions made by both learned advocates. I have also considered decisions which have been relied upon by both learned advocates. I also perused judgment and order passed by Commissioner. Most of facts between parties are not in dispute. Respondent No.1 – owner – employer represented by learned advocate Mr. H.S. Patel before Commissioner. So, accident occurred on 17th July 1997. Claimant received injury in accident and he was having 26% disability which is also not in dispute. Medical certificate issued by Dr. Mahesh B. Patel dated 18th March 1999 is also not in dispute as genuineness is not challenged by any of respondents including present appellant. This disability certificate is exhibited at Exh.30. Thereafter, with consent of both parties, this disability has been reduced to 20%, meaning thereby medical certificate of disability is accepted by appellant insurance company before Commissioner, otherwise, appellant cannot agree with reduction of 20% as per purshis Exh.25 given by claimant. Therefore, now, only question is to be examined by this Court is in light of evidence produced before Commissioner by respective parties. No evidence was produced by appellant before Commissioner. Claimant was examined before Commissioner vide Exh.18. In chief examination, he gave detail about injury and treatment and also made it clear that he is not able to drive any vehicle. This question asked in cross examination by appellant insurance company's advocate which has been denied that it is not true that at present, he is able to drive vehicle, meaning thereby that evidence of claimant because of injury received by him, he is not able to drive any vehicle means he is not able to work as a driver, has been cross examined by oral evidence of claimant. The medical certificate of disability 18th March 1999 where doctor has certified that; Is the disablement of work is permanent ? And how long disablement likely to continue ? The answer has given "permanent". 13. Learned advocate Mr. Nair relied upon a general assessment of health which has been given by doctor which considered to be good and fit for duty, but, simultaneously considering his permanent partial disability assessed 26% of both lower limb cannot work as a driver, which is also certified by him. Therefore, opinion given by doctor in respect of general health condition cannot consider to be an opinion that he is able to work as a driver or he is fit for work as a driver. Therefore, it is necessary to consider entire medical certificate of disability which is quoted as under : "DISABILITY CERTIFICATE Dated : 18.3.1999. Name of Injured person :- Mr. Budhabhai Shanabhai Chauhan – (parmar). Age :- 42 Yr. Local address :- At & Po.- Sokhda, Tal. Vadodara, Di.-Vadodara. Religion or Caste :- Hindu Occupation :- Driver Date & cause of accident :- 17.7.1997. Following accidental fall of Heavy Objects on both Lower Limbs. Nature and extent of injury :- Left Comminuated fracture femur U/3rd With # Tibial spine Right side with Haemarthrosis of knee joint. Is the disablement of work :- Permanent. Solely the result of the accident or partly due to some previous accident or illness :- Solely due to accident injury How long disablement likely continue :- Permanent Treatment you advice or have advised :- Primarily treated at my hospital. He was Operated on 18.7.1997 Close Reduction & G-Knailing for # femur & Aspiration of knee joint with close reduction & pop was done Pop was kept for 6 weeks. He had delayed union of # which ultimately united after Dynamisation of #. Is this being carried out :- yes. Present general condition of health : good, fit for duty. Remarks :- At present he complaints of (1) pain & swelling in Both lower limb. (2) Restriction of Left knee & Hip movements & Right Knee Movements. (3) Weakness of Both lower limb (4) Difficulty while walking on uneven ground without support (5) difficulty in sitting cross-legged & squatting (6) Shortening of Left lower limb & limping. (7) Instability of right Knee Joint, Cannot do driving of vehicle. (2) Restriction of Left knee & Hip movements & Right Knee Movements. (3) Weakness of Both lower limb (4) Difficulty while walking on uneven ground without support (5) difficulty in sitting cross-legged & squatting (6) Shortening of Left lower limb & limping. (7) Instability of right Knee Joint, Cannot do driving of vehicle. On Examination :- Left lower limb :- United # femur Tenderness + at the # site well-healed scar but tender & Hypertrophied Power :- grade 4 in Abductors & grade 4 + in adductors, Flexors, Extensors, & Rotators of hip joints as well as quadriceps, amstrings, T.A., T.P., T.C., E.H.L., E.D.L., F.H.L., F.D.I. Movement :- Hip joint :- Abduction lost last 20 degrees, all others are terminally painful & restricted. Knee joint :- flexion 110 degrees & quadriceps lag of 5 degrees Ankle joint, subtaler & Foot movements terminally painful & restricted Right lower limb :- ACL LAXITT ++ Quadriceps weakness grade 3 : movements :- 10 to 110 degrees of knee joint, others are terminally painful & restricted. Limblength discrepancy 2.5 cm shortening of left lower limb as compared to opp. Side. Trendelenbergh Gait ++ X-ray :- united # femur HIS PERMANENT PARTIAL DISABILITY ASSESSED TODAY IS 26% (Twenty six percent) OF BOTH LOWER LIMB. HE CANNOT WORK AS DRIVER." 14. In view of aforesaid medical evidence supported with evidence of claimant, no rebuttal evidence or contrary evidence was produced before Commissioner by appellant and in that view of the matter, Commissioner has examined question as to whether 20% disability accepted by claimant in light of opinion given by doctor while considering Issue No.4 relying upon decision of Pratap Narain Singh Deo v. Sriniwas Sabata, 1976 (1) LLJ 235 of Apex Court and another decision reported in Punambhai Khodabhai Pamar v. G. Kenel Construction, 1985 (1) LLJ 98 and come to conclusion that it amounts to a permanent disability which remains continue for entire life. Therefore, it is a 100% disability and workman is entitled compensation on that basis. The contention raised by learned advocate Mr. Therefore, it is a 100% disability and workman is entitled compensation on that basis. The contention raised by learned advocate Mr. Nair that loss of earning capacity is not proved by medical evidence, but, a moment, medical certificate or disability exhibited and accepted and genuineness of that certificate is not challenged by appellant himself that a claimant is not now able to work as a driver after injury, then, it amounts to a 100% loss of earning capacity which has been rightly appreciated and considered. For that, according to my opinion, Commissioner has not committed any error which requires interference by this Court. Therefore, contention raised by learned advocate Mr. Nair cannot be accepted in light of two documents; one is evidence of claimant Exh.18 and another is disability certificate Exh.30; and on that basis, finding given by Commissioner cannot consider to be baseless and perverse. Therefore, according to my opinion, it is based on legal evidence, therefore, no error has been committed by Commissioner which requires interference by this Court. 15. It is necessary to note that this aspect has been examined by this Court in case of New India Assurance Co. Ltd. v. Jorubhai Panchaji Jethwa and Anr. reported in 2009 (1) GLH 447, where, this Court has considered recent decision of Apex Court in case of K. Janardan v. United India Insurance Co. Ltd. reported in 2008 (8) SCC 578, where, relevant observations is made in Para 7 and 8 which are quoted as under : "7. After considering the aforesaid discussion made by W.C.Commissioner, the contention raised by learned advocate Mr. Thakker that 54% disability which has been certified in medical certificate then to assess 100% disability by W.C.Commissioner is an erroneous decision. The W.C.Commissioner has considered the injury received by applicant. The Dr. Kotak has supported disability certificate issued by him. He supported the injury sustained by applicant. The disability certificate Exh.39 it is mentioned that applicant has suffered 54% physical disability on left lower limb and as a driver, his functional disability is permanent and total. This certificate shows the shaft femur Open Grade I, Tibia Fibula left and treatment was given. The debridment was done and applicant was initially treated at Sayaji Rao Hospital, Baroda and thereafter, he took treatment at G.K.General Hospital, Bhuj from 31.8.2005 to 26.9.2005 and from 13.10.2005 to 27.10.2005. Shaft femur was fixed with I.M. nailing. This certificate shows the shaft femur Open Grade I, Tibia Fibula left and treatment was given. The debridment was done and applicant was initially treated at Sayaji Rao Hospital, Baroda and thereafter, he took treatment at G.K.General Hospital, Bhuj from 31.8.2005 to 26.9.2005 and from 13.10.2005 to 27.10.2005. Shaft femur was fixed with I.M. nailing. Tibia was fixed with DCP plate. Wound get infected pus discharge was present. Thereafter, he was treated by Dr. Krudant Arya at Anjar. In support of the certificate applicant has examined Dr. A.M. Kotak who supported the disability certificate and also supported injuries sustained by applicant. Said doctor further deposed that on examination he found the wound on left buttock/left upper thigh, left lower thigh and infected wound on left leg with pus discharging sinus. Said doctor further deposed that there was deformity in frame of bone projection. On the site mobility and tenderness was present. He further deposed that applicant was unable to walk without support, unable to sit cross legged and squat. He cannot do the labour job and he cannot drive any type of vehicle. The doctor gave detailed measurements of movement of left leg, knee, hip and ankle and total disability is shown to be 54%. The doctor further deposed that accidental injuries have resulted into permanent physical disability of 54% of left lower extremity. He further deposed that with the said disability applicant cannot drive any type of vehicle and as a driver, his functional disability is permanent and total. In cross-examination, doctor has admitted that applicant can do any other work except driving. In this background, when driver received injury and it was resulted into 100% disability and incapacity in earning capacity, the Apex Court has considered that doctor may certify 54% disability but, looking to the injury when he is not able to work as a driver, he is entitled the benefit of compensation as a 100% disability and incapacity in earning capacity, in case of K. Janardhan v. United India Insurance Co. Ltd. And other reported in 2008 (8) SCC 578. The relevant observations of the said decision are in Para.2 to 6 are quoted as under : 2. The claimant-appellant a tanker driver, while driving his vehicle from Ayanoor towards Shimoga met with an accident with a tractor coming from the opposite side. Ltd. And other reported in 2008 (8) SCC 578. The relevant observations of the said decision are in Para.2 to 6 are quoted as under : 2. The claimant-appellant a tanker driver, while driving his vehicle from Ayanoor towards Shimoga met with an accident with a tractor coming from the opposite side. As a result of the accident, the appellant suffered serious injuries and also an amputation of the right leg up to the knee joint. He thereupon moved an application before the Commissioner for Workmen's Compensation praying that as he was 25 years of age and earning Rs. 3,000/- per month and had suffered 100% disability, he was entitled to a sum of Rs. 5 lac by way of compensation. 3. The Commissioner in his order dated 18th November, 1999 observed that the claimant was 30 years of age and the salary as claimed by him was on the higher side and accordingly determined the same at Rs. 2000/- per month. The Commissioner also found that as the claimant had suffered an amputation of his right leg up to the knee, he has said to have suffered a loss of 100% of his earning capacity as a driver and accordingly determined the compensation payable to him at Rs. 2,49,576/- and interest @ 12% p.a. Thereon from the date of the accident. 4. An appeal was thereafter taken to the High Court by the Insurance Company–respondent. The High Court accepted the plea raised in appeal that as per the Schedule to the Workmen's Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation as already mentioned above. It is in this circumstance, that the aggrieved claimant has come up to this court. 5. The learned counsel for the appellant has raised only one argument during the course of the hearing. He has submitted that the claimant–appellant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(e) of the Workmen's Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo v. Srinivas Sabata & Anr. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo v. Srinivas Sabata & Anr. (1976) 1 SCC 289 . The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: 5. The expression "total disablement" has been defined in Section 2(1)(e) of the Act as follows: "(1) `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 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 3 of Part II of Schedule 1, 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 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. 6. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 6. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence." 8. In view of aforesaid decision of the Apex Court and considering evidence of Dr. Kotak in present facts of case that applicant was not able to work as a driver which amounts to 100% disability and incapacity in earning capacity. Therefore, W.C.Commissioner has rightly examined matter and awarded the compensation, though in medical certificate it was 54% disability certified but, looking to the injuries received by applicant which he became permanently disablement for driving the vehicle then it amount to 100% disability means incapacity in earning capacity. Therefore, the view taken by W.C.Commissioner cannot consider to be erroneous. The contention raised by learned advocate Mr. Thakker cannot be accepted." 16. Recently, Delhi High Court has decided identical case on 4th September 2009 in case of National Insurance Co. Ltd. through Asst. Manager, New Delhi v. Ranbir Sharma (since deceased replaced by his Widow and Minor Daughter) and Anr., reported in 2009 III CLR 507, where, Ranbir Sharma was employed as driver of respondent No.2 on his vehicle where on 19th September 2003, he received injuries in an accident arising out of and in the course of employment. After accident, he became 100% disabled and his earning capacity had been totally reduced Therefore, claim petition was filed. The said claim petition was objected by appellant–insurance company on the ground that Commissioner has wrongly taken disability as 100% without any proof of medical certificate issued by competent authority. In such circumstances, Delhi High Court has considered decision of Apex Court in case of State of Mysore v. S.S. Makapur reported in 1963 2 (SCR) 943 and held in that Commissioner under the Act is a quasi-judicial authority and is not strictly bound by the Rules of evidence. In such circumstances, Delhi High Court has considered decision of Apex Court in case of State of Mysore v. S.S. Makapur reported in 1963 2 (SCR) 943 and held in that Commissioner under the Act is a quasi-judicial authority and is not strictly bound by the Rules of evidence. The claimant in his evidence by affidavit stated that due to this accident, he has been disabled is not in a position to stand and is confined to bed. He further stated that he has become 100% disabled for the purpose of his employment as a driver and his earning capacity has been totally reduced. There is no rebuttal to this statement of the claimant. In light of this evidence on record, Delhi High Court has considered observations made by Apex Court in case of S.S. Makapur (supra) in Para 13 which is quoted as under : "13. In S.S. Makapur (Supra), Court observed : "The sole point for determination in this appeal therefore is whether the procedure adopted by the Deputy Superintendent of Police in admitting the statements of witnesses examined before Mr. Majumdar in evidence is opposed to the rules of natural justice. The question is one of importance, because as appears from the cases which have come before us the procedure followed by the Deputy Superintendent of Police in this case is the one followed by many tribunals exercising quasi judicial powers. For a correct appreciation of the position, it is necessary to repeat what has often said that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts." 17. Therefore, there is no substance in present First Appeal. Accordingly, present first appeal is dismissed. No order as to costs. 18. The Workmen's Compensation Commissioner concerned is directed to pay whatever amount is lying with accruing interest, if any, by account payee cheque in name of respondent claimant Budhabhai @ Ramanbhai Shanabhai, after proper verification immediately without any delay. 19. The respondent No.2–employer who remained absent before this Court though notice has been served, but, no advocate is engaged, therefore, matter has been taken up for decision in absence of employer. Therefore, it is directed to respondent No.2 to deposit Rs.21,419/- with cost of Rs.1,000/- immediately before Workmen's Compensation Commissioner concerned within a period of one month from date of receiving copy of present order, if that amount is not deposited so far by respondent No.2. 20. It is further directed to Commissioner concerned to initiate proceedings against respondent No.2 employer if the amount of penalty and cost is not deposited within a period of one month from date of receiving copy of this order under Section 31 of Workmen's Compensation Act and recover the said amount under the provisions of Bombay Land Revenue Code from respondent No.2 and thereafter, to pay the said amount by account payee cheque to respondent No.1–claimant, immediately. Appeal dismissed.