JUDGMENT : Veerendr Singh Siradhana, J. The Commissioner, Workmen Compensation Act, 1923, Jaipur District-I, Jaipur, vide order/award dated 12th December, 2008, awarded compensation in favour of the claimant/non-appellant, for a sum of Rs.3,42,468/- (Rupees Three lac forty two thousand four hundred sixty eight), along with interest @12% p.a. from the date of accident i.e. 5th April, 2006; of which the appellant/National Insurance Co. is aggrieved of. 2. Essential material facts necessary for appreciation of the controversy are that the claimant/non-appellant being second driver cum cleaner on the Truck with registration No. RJ-14-G7572, met with an accident for it hit a standing Truck and as a consequence he suffered fracture in both the legs. The Commissioner, Workmen Compensation Act, 1923, Jaipur District-I, Jaipur, on a consideration of the pleaded facts of the claim petition, response filed by the appellant/National Insurance Co., evidence adduced and upon hearing the counsel for the parties, allowed the claim petition vide impugned order/award assessing loss in the earning capacity to the extent of 70% in view of permanent disability, that was determined as 37% by the Medical Officer, S.M.S. Hospital, Jaipur, on account of multiple fractures suffered by the claimant/non-appellant. 3. Learned counsel for the appellant, Mrs. Archana Mantri, reiterating the pleaded facts and grounds of the memo of appeal, emphatically argued that the Commissioner, committed gross error in assessing 70% loss of earning capacity in the face of the disability certificate, which in no uncertain terms indicated 37% permanent disability. Hence, the compensation ought to have been computed on the basis of 37% permanent disability. The percentage of loss of earning capacity could not have gone beyond the percentage of disability as indicated in the permanent disability certificate i.e. 37%. 4. According to the learned counsel, the license of the claimant/non-appellant was later-on renewed to drive Heavy Transport Vehicle, therefore, an inference can be drawn that the permanent disability of 37% had no impediment on the earning capacity. Therefore, compensation awarded on the basis of assessment to the extent of 70% loss of earning capacity, is an erroneous finding, and hence, the impugned order/award needs to be interfered with by this Court. 5. No other point was raised by the counsel for the appellant for consideration of this Court. 6. Therefore, compensation awarded on the basis of assessment to the extent of 70% loss of earning capacity, is an erroneous finding, and hence, the impugned order/award needs to be interfered with by this Court. 5. No other point was raised by the counsel for the appellant for consideration of this Court. 6. I have heard the learned counsel for the appellant and with her assistance perused the materials available on record as well as gave my thoughtful consideration to the submissions at Bar so also carefully scanned the impugned order/award dated 12th December, 2008. 7. Indisputably, the Commissioner, Workmen Compensation on the basis of pleadings of the parties and in the backdrop of the injury report Ex.-3, as well as certificate of permanent disability (Ex.-6), concluded that the claimant/non-appellant incurred 70% loss in the earning capacity owing to the fact that his both the legs were fractured. 8. From the Medical Certificate (Ex.6), it is further reflected that fracture of left leg bones is the cause to unstability of the lower limb, which resulted into unstability in driving. In the Note on the Medical Certificate, it is specifically mentioned thus "Persistant wound discharge on Lt Leg, Malunited". Thus, on the basis of injury suffered by the claimant/non-appellant and the certificate of Permanent Physical Impairment to the extent of 37%, suffered by the claimant/non-appellant, would definitely reflect in the capacity of the claimant/non-appellant in driving and a resultant loss in earning capacity. The nature of injury which has resulted into unstability of lower limb causing unstability in driving, is a relevant aspect that has been taken into consideration by the Commissioner, while assessing the loss in capacity in earning to the extent of 70%. 9. In the case of K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518 , the Apex Court of the land, considering the earlier opinion in the case of Pratap Narain Singh Deo v. Srinivas Sabata, held thus: "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. 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)(l) 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 and Anr.. 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)(l) of the Act as follows: '2.(1)(l) "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. 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. 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. 7. We therefore allow this appeal, set aside the judgment of the High Court and restore that of the Commissioner but with no order as to costs." 10. From the factual matrix as reflected and the findings arrived at by the Commissioner, Workmen Compensation, supported by reasonings in the backdrop of the injury report and Medical Certificate reflecting Permanent Physical Impairment of 37%, the assessment to the extent of 70% as disability and incapacity in earning capacity; cannot be faulted. 11. For the reasons and discussions aforesaid, the misc. appeal instituted by the appellant-National Insurance Co. Ltd., is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed. 12. Ordered accordingly. 13. No costs.