Judgment K.S. Jhaveri J.—By way of this appeal, appellant has challenged the judgment and award passed by the Commissioner for Workmen’s Compensation Case No.22 of 1990. 1.1 Learned Counsel for the appellant contended that Workmen’s compensation Tribunal has in awarding impugned compensation made an error. He has also further contended that respondent workmen is a driver of the truck met with an accident with a roller, as a result of which, he has suffered serious injuries and was removed to Thane Govt. Hospital, where his right leg was amputated below knee. He has filed Workmen’s Compensation Case No.22 of 1990 stating that he has suffered 100% permanent disability, was aged about 25 years and was getting salary of 1,200/- p.m. from his employer – respondent No.2 herein. On the basis of the said averments, he claimed compensation of Rs. 1,08,455/- + Rs. 15,000/- for medical, transportation, attendant charges etc. and 50% penalty on the amount of compensation. 1.2 Learned Commissioner for Workmen’s compensation took Rs. 1,000/- as income under Section 4 of the Workmen’s Compensation Act and taking 50% thereof and applying the relevant factor of 216.91 awarded a sum of Rs. 1,08,455/- and Rs. 5000/- for medical, transportation etc i.e. Rs. 21,691/- was also awarded to be paid by the employer of the applicant, but as per Schedule I, Part II entry 19 of the Workmen’s Compensation Act, for amputation below knee, the percentage of earning capacity is 60% and not 100% as is awarded. 1.3 Learned Counsel for the appellant has raised following contentions:— 1. That the judgment and the award passed by the learned Commissioner is against law and evident on the record of the case. 2. That the learned Commissioner has not framed proper points for determination. 3. That the learned Tribunal has misread and mis constructed the oral and the documentary evidence on the record of the case. 4. That the learned Commissioner has erred in coming tot eh conclusion that in the instant case on account of the amputation of the right leg of the applicant below knee he has suffered 100% loss of earning capacity. 5. That the learned Commissioner erred in saying that on account of amputation of the right leg below the knee the applicant would be incapable of earning any money. 6. 5. That the learned Commissioner erred in saying that on account of amputation of the right leg below the knee the applicant would be incapable of earning any money. 6. That the learned Commissioner failed to appreciate that in these days of advanced technology, persons who have lost a leg with the aid of an artificial leg can apply himself in many vocations gainfully and earn a livelihood. 7. That the learned Commissioner failed to appreciate that a person with a leg amputated below the knee can do any other work except driving, such as carrying on business in a small or big way, e.g. running of a hotel, tea stall, pan galla or kiosks etc., which would bring possibly a much higher income than what the applicant was earning as a driver. 8. That the learned Commissioner has misread and misconstrued the decision reported in the case of State of Gujarat vs. Rajendra Khoda Devasia, 1991 GLH page 66. 9. That the learned Commissioner failed to appreciate that the facts of the aforesaid case were entirely different from those of the present case. 10. That the learned Commissioner failed to appreciate that thee is no authoritative pronouncement in the said judgment. 11. That the learned Commissioner has not properly appreciated the principle of percentage of disability in respect of various limba as contained in the treatises like that of Kessaler. 12. That the learned Commissioner failed to appreciate that even if there is loss of 100% earning capacity in case of amputation of one leg, to the body as a whole, it cannot be said that there is a loss of 100% earning capacity. 13. That the learned Commissioner failed to appreciate that there was no reliable evidence as to the income of the applicant at the time of the accident, with the result the learned Commissioner has erred in coming to the conclusion that the applicant was earning Rs. 1000/- per month. 14. That in any event the award of the learned Commissioner is excessive and such on the higher side. 15. That the judgment and the award of the learned Commissioner is otherwise erroneous and bad in law. 2. None appeared for respondents. 3. 1000/- per month. 14. That in any event the award of the learned Commissioner is excessive and such on the higher side. 15. That the judgment and the award of the learned Commissioner is otherwise erroneous and bad in law. 2. None appeared for respondents. 3. In 2010 ACJ 487, it is held by Division Bench that that on account of amputation of right leg below knee, workmen is rendered unfit for the work of a driver, which he was performing at the time of the accident. Therefore, he has lost 100% of his earning capacity. Medical expenses Rs. 5000/- cannot be given under Workmen’s Compensation Act. 4. The order of the learned Commissioner for Workmen’s Compensation is hereby modified. The respondent will be entitle only for Rs. 1,08,455/-. The order regarding penalty and interest is not disturbed. Appeal is allowed to the aforesaid extent. Rule is made absolute. P P P P P