JUDGMENT : 1. Instant appeal is directed against the order dated 10.11.2003 passed by Workmen Compensation Commissioner, Jaipur, in Claim Petition No.WCC/NF/43/2001. 2. Mr. S.K. Gupta, Addl. Advocate General, has placed on record the Gazette Notification dated 4.12.2014, which has been taken on record. 3. The brief facts are that on 22.9.2001 one Ratan Singh, who is said to be aged about 25 years, was driving a mini truck no.HR 61 0105 as a driver, and he was employed under Subhash Chandra son of Prahlad, and when he reached near Sodala Police Station on Ajmer Road, Jaipur, the vehicle met with an accident by which he got seriously injured and it is alleged that on account of the grievous injury his spleen and liver got damaged and it was claimed that disability was to the extent of 100%, as the injuries suffered were vital for day to day functioning of the respondent. An amount of Rs.5,20,584/-was claimed, however, the Tribunal assessed the disability being 50%, and allowed the claim to the extent of 2,60,292/-along with penalty to the extent of Rs.65,073/-, which has been assailed by the appellant-Insurance Company herein. 4. Counsel for the appellant based his submission primarily on the issue that it is admitted that though the injury has been suffered by the respondent, but he contended that the medical certificate shows permanent physical disability to the extent of 25%, however, the Commissioner in the impugned order, without any just and proper basis, has taken 50% to be the disability. He further contended that not only this, the statement of Dr. Ramesh Meena was recorded later on, and it was noticed that he was an orthopedic doctor and, therefore, he even was not otherwise qualified to state that there is a substantial damage on account of spleen and liver. He further contended that even the doctor opined that he (respondent) will not be able to drive heavy vehicle, but he was in a position and capacity to drive any other vehicle including mini truck, car etc. and, he will face no difficulty. He further contended that statement of respondent-Ratan Singh was also recorded during the course of proceedings before the Commissioner, and he himself stated that at the time when statements were recorded, he was alright except minor problems. The counsel also, in support of his contentions, relied on certain judgments, namely National Insurance Co. and, he will face no difficulty. He further contended that statement of respondent-Ratan Singh was also recorded during the course of proceedings before the Commissioner, and he himself stated that at the time when statements were recorded, he was alright except minor problems. The counsel also, in support of his contentions, relied on certain judgments, namely National Insurance Co. Ltd. v. Mubasir Ahmed 2007 ACJ 845 , Raj Kumar v. Ajay Kumar & Another (2011) 1 SCC 343 , Gopala Pillai v. Vasukutty 2003 ACJ 797, and also specially Explanation (2) of Section 4 of the Employees Compensation Act, to say that injury is to be seen, based on report of a qualified medical practitioner and the same cannot go beyond the disability which was 25%. 5. Per contra, Mr. Sandeep Mathur, counsel for the respondent, contended that the doctor in the medical certificate had clearly opined that there is complete removal of spleen, and liver has been damaged to a large extent and once the spleen is removed and liver is damaged, his entire life has come, by and large, to a halt and he is unable to function in the manner a normal man does, or when he was leading life before the accident. He further contended that the doctor had clearly opined in the statement later on recorded, that he will have difficulty in driving heavy vehicles, or even if other vehicles are driven, then too he will have difficulty. He relied on the judgment of Hon'ble Apex Court in Pratap Narain Singh Dev v. Shrinivas Sabata & Another 1976 A.C.J. 141, and on a judgment of this court in National Insurance Co. Ltd. v. Rakesh Kumar Saini, S.B. Civil Misc. Appeal No.1534/2002, decided on 21.7.2011. 6. I have considered the arguments advanced by the counsel for the parties. 7. It would be appropriate to quote Section 4 and Explanation (2) : 4. Ltd. v. Rakesh Kumar Saini, S.B. Civil Misc. Appeal No.1534/2002, decided on 21.7.2011. 6. I have considered the arguments advanced by the counsel for the parties. 7. It would be appropriate to quote Section 4 and Explanation (2) : 4. Amount of compensation.-(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-- (a) where death results from the injury : an amount equal to fifty per cent of the monthly wages of the deceased * [employee] multiplied by the relevant factor; or an amount of *[one lakh and twenty thousand rupees], whichever is more; (b) where permanent total disablement results from the injury : an amount equal to sixty per cent of the monthly wages of the injured *[employee] multiplied by the relevant factor; or an amount of *[one lakh and forty thousand rupees], whichever is more; *[Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).] Explanation I.--For the purposes of clause (a) and clause (b), "relevant factor", in relation to an *[employee] means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the *[employee] on his last birthday immediately preceding the date on which the compensation fell due. (c) where permanent partial disablement result from the injury: (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I.--Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II.--In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I; 8. It prescribes that the amount of compensation is required to be allowed on the basis of Explanation II, which specifically lays down that loss of earning capacity is to be assessed on the basis of report of a qualified medical practitioner having due regard to the percentage of loss of earning capacity, which should mean that the doctor has certified certain percentage he being a qualified doctor, then to the extent the certificate, should normally be taken on face value. 9. In the instant case, if the medical certificate is taken into consideration though it states that “because of blunt trauma in abdomen, he has been operated for spleenectomy, repair of liver by means of exploratory leprotomy. Due to which he has reduced his vital and physical capacity and having >25% permanent physical impairment. This assessment is based on the guideline issued by the DGHS Govt. of India, WHO, AIIMS, New Delhi and Dis ab. Manual for work Mans Caupusation disability evaluation.” 10. Dr. Ramesh Meena was authorised to issue certificate on behalf of the S.M.S. Medical College, and in my view once a doctor is authorised by the Medical Board, he taking in effect over all injuries caused, after taking into consideration operation conducted and other factors, primarily cannot be discarded. Nevertheless the doctor, during the course of cross-examination on 13.8.2003, observed that he had prepared the medical certificate stating less than 25% permanent physical disability, and that since Ratan Singh did not have any injury in his hands and legs, and only injury was on stomach, therefore, he opined that he was not in a position to drive heavy vehicle, but he was in a position to drive light vehicles, like jeep, matador, mini bus and other light vehicles. In the cross-examination also, he observed that there was no injury insofar as hands and legs are concerned, and his spleen was removed, and on account of removal of spleen and damage of liver, though he will certainly suffer from disability, but the disability he still certified that it would be only to the extent of about 25% only. 11. In the cross-examination also, he observed that there was no injury insofar as hands and legs are concerned, and his spleen was removed, and on account of removal of spleen and damage of liver, though he will certainly suffer from disability, but the disability he still certified that it would be only to the extent of about 25% only. 11. It will be appropriate to refer to the statements of the respondent recorded on 3.9.2002, and in cross-examination he stated that “he was treated in the S.M.S. Hospital for 17 – 18 days and had received minor injuries in hands and legs, and that they have properly been treated and recovered, and that even he was operated of his spleen. By and large, his injuries have recovered but he certainly feels difficulty in his day to day functioning”. 12. The judgments relied upon by the counsel for the appellant supports the contention of the appellant to the extent that the judgment rendered in the case of National Insurance Co. Ltd. v. Mubasir Ahmed (supra), the Hon'ble Apex Court opined that in a case of injury where there is permanent physical disablement one has to go, by and large to the report of the doctor and it would be appropriate to quote para 8 of the judgment :- “Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100 per cent loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of the Commissioner, in view of the facts situation. Coming to the question of liability to pay interest, section 4-A (3) deals with that question. The provision has been quoted above.” 13. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court's order and restore that of the Commissioner, in view of the facts situation. Coming to the question of liability to pay interest, section 4-A (3) deals with that question. The provision has been quoted above.” 13. The judgment in the case of Raj Kumar v. Ajay Kumar (supra), opines that all factors need to be taken care of while assessing permanent disability, and that the Tribunal or as the case may be, the Commissioner has to go into the facts to the extent of reduction in earning capacity. 14. The judgment in the case of Gopala Pillai v. Vasukutty (supra) of the Kerala High Court, also came to the conclusion that for a physical disability to the extent of 28%, it could not have been taken upto 100%. 15. While counsel for the respondent placed reliance on a judgment in the case of Pratap Narain Singh Dev v. Shrinivas Sabata (supra), where the Hon'ble Apex Court opined that in a case where there was amputation of upper elbow, and he in that case being a carpenter, it was held to be a total physical disability as the job which he was doing will not be carried on by him by a single hand. The judgment of this court in the case of National Insurance Co. Ltd. v. Rakesh Kumar Saini (supra), was a case where his both legs were fractured due to crushing, and it was a finding of fact that he had suffered permanent disablement and has been rendered unable to perform the work of a driver “forever”, and after noticing the above fact that there was no contrary fact except the above claim, and there being no cross-examination of any other person, this court dismissed the appeal of Insurance Company. Therefore, the facts are distinguishable. 16. The other judgment relied upon by Mr. Mathur in the case of National Insurance Co. Ltd. v. Susanta Das and Others 2000(1) T.A.C. 25 (Cal.), was also a case where the claimant had lost one hand, and finding that by one hand one could not drive a vehicle. 17. Therefore, the facts are distinguishable. 16. The other judgment relied upon by Mr. Mathur in the case of National Insurance Co. Ltd. v. Susanta Das and Others 2000(1) T.A.C. 25 (Cal.), was also a case where the claimant had lost one hand, and finding that by one hand one could not drive a vehicle. 17. Therefore, taking into consideration the over all facts and circumstances, I am of the view that the Commissioner was not justified in coming to its own conclusion of permanent disability to the extent of 50%, and loss of earning capacity to the extent of 50% which in my opinion, is based on no material, and once the certificate of a Medical Board is there, so also the cross-examination of the very doctor, as also the cross-examination of the respondent herein, the order of the Commissioner is found to be unjust and is required to be modified and the compensation now payable to the claimant-respondents would be 4000 x 60/100 x 216.91 (relevant factor) x 25/100 = Rs.1,30,146/- instead of as awarded by the Commissioner i.e. Rs.2,60,292/-, along with interest @ 9% as granted by the Tribunal. 18. Consequently, the appeal is partly allowed. The amount in terms of this judgment be disbursed to the claimant-respondent by bank draft within a period of one month.