JUDGMENT : Heard. This appeal arises out of the award dated 15.10.2010 in WC.CR.No.243/2008 passed by the Workmen’s Compensation Commissioner, Davanagere. By the impugned order the Commissioner has awarded compensation of Rs.2,30,656/-with interest to respondent No.1 payable by the appellant. 2. Before the Commissioner, the appellant was respondent No.2. Respondent No.1 was the claimant and respondent No.2 was respondent No.1. For the purpose of convenience, the parties will be referred to henceforth as per their ranks before the Commissioner. 3. On 14.01.2008 at 4:30 p.m., when the claimant was driving TATA-407 passenger vehicle bearing registration No.KA-27-5513 near Kummur Cross within the limits of Kaginele Police Station of Haveri District, the vehicle met with an accident. 4. Regarding the accident, one Eerappa S/o Basappa filed complaint. On the basis of such complaint, Kaginele Police registered the first information report-Ex.P1 in Crime No.2/2008 against the claimant alleging that the accident occurred due to his rash and negligent driving. The vehicle was carrying the passengers. 5. Kaginele Police charge sheeted the claimant as per Ex.P4 for the offences punishable under Sections 279, 337 and 338 of IPC. Respondent No.1 was the registered owner and respondent No.2 was the insurer of the said vehicle. 6. Claimant filed claim petition before the Workmen’s Compensation Commissioner, Davanagere under Section 22 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) alleging that the accident arose out of and during the course of employment. He further alleged that due to the injuries suffered by him in the accident, he suffered permanent physical disability leading to loss of his earning capacity and thus claimed compensation as per the Act. 7. Before the Commissioner, respondent No.1 did not contest the matter. Respondent No.2 the insurer contested the matter denying all the contentions raised by the claimant. In support of the claim petition, claimant got examined himself as PW.1 and one Doctor Umanath as PW.2. On behalf of the insurer/respondent No.2 its Administrative officer was examined. Insurance Policy and Permit were marked as Exs.R2-1 and R2-2. 8. On hearing the parties, the Commissioner by the impugned award granted compensation of Rs.2,30,656 with interest. Relying on the evidence of the Doctor, the Commissioner held that the claimant has suffered 45% loss of earning capacity, assessed his monthly wages at Rs.4,000/-applied 213.57 factor and assessed the compensation at Rs.2,30,656/-. 9. 8. On hearing the parties, the Commissioner by the impugned award granted compensation of Rs.2,30,656 with interest. Relying on the evidence of the Doctor, the Commissioner held that the claimant has suffered 45% loss of earning capacity, assessed his monthly wages at Rs.4,000/-applied 213.57 factor and assessed the compensation at Rs.2,30,656/-. 9. This Court admitted the above appeal for consideration of the following substantial question of law: “Whether the learned Commissioner acted contrary to the provisions of section 2(1) and 4(1) of the Workmen’s Compensation Act in assessing the loss of earning capacity?” 10. Smt. Nirmmala, learned counsel for the appellant assails the impugned award on the following grounds: (i) That the Doctor has not spoken about the loss of earning capacity, but he has assessed the physical disability and what is to be considered under the Act is the loss of earning capacity and not the physical disability; (ii) According to the Doctor, the fractures were united and disability assessed by him was with reference to a particular limb and not with reference to the whole body. (iii) There was no evidence to show that the claimant ceased to work as a driver due to alleged injuries. Therefore, in assessing the damages, the Commissioner acted contrary to Sections 2(1) and 4(1) of the Act. 11. The finding of the Commissioner that the claimant was working as driver at the time of the accident under respondent No.1 and he met with to the accident are not challenged. The sole ground of challenge to the award is violation of Sections 2(1) and 4(1) of the Workmen’s Compensation Act. Therefore, what is to be considered is the nature of the injuries and loss of earning capacity. 12. Even as per the Doctor, the claimant had suffered the following injuries: i) Fracture of left trochanteric bone (hip bone); (ii) United fracture of left head of radius bone. 13. According to the Doctor, the left leg movement was 10% moderately restricted and left elbow flexion was upto 100% that means there was no restriction of movement, but only there was a painful movement. He claims to have examined the victim after about eight months of the accident. He assessed the physical disability with reference to the left hip region at 25% and with reference to left elbow region at 20%. He did not speak about the percentage of loss of earning capacity. 14. He claims to have examined the victim after about eight months of the accident. He assessed the physical disability with reference to the left hip region at 25% and with reference to left elbow region at 20%. He did not speak about the percentage of loss of earning capacity. 14. To claim the partial disablement, that should be as defined under Section 2(1)(g) of the Act which reads as follows: “2(1)(g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a employee in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement;” 15. Admittedly, to claim the permanent partial disablement the claimant should have suffered the injuries mentioned in Part II of Schedule I which relate to amputation of limbs, loss of eye vision, fingers, toes etc. 16. In this case, there was no such amputation or loss of limb, fingers etc. Therefore, the compensation was to be assessed as per Section 4(c)(ii) of the Act. As rightly pointed out by learned counsel for the appellant, the Doctor did not speak about the loss of earning capacity or that the disability of 25% and 20% were with reference to the whole body. It is material to note that the Commissioner rejected the application of the insurer which was filed to refer the claimant to medical board for assessment of his loss of earning capacity. 17. As discussed above, the injuries suffered did not fall under Schedule I. Under the circumstances, the computation of permanent disability at 45% was irrational and contrary to Sections 2(1) and 4(1) of the Act. Even on a very reasonable basis the disability to the whole body could have been 1/3rd of what Doctor opined which comes to 15%. 18. The claimant has not challenged the assessment of the monthly wages at Rs.4,000/-or the application of factor. At that rate, the compensation payable comes to (2,400 X 15/100 X 213.57) = 76,885.2/-which is rounded to Rs.77,000/-. 19. 18. The claimant has not challenged the assessment of the monthly wages at Rs.4,000/-or the application of factor. At that rate, the compensation payable comes to (2,400 X 15/100 X 213.57) = 76,885.2/-which is rounded to Rs.77,000/-. 19. Under the circumstances, it is held that the Commissioner did not follow the provision under Sections 2(1) and 4(1) of the Workmen’s Compensation Act in assessing the actual loss of earning capacity. Substantial question of law is answered accordingly. 20. The appeal is partly allowed. The impugned award is modified granting compensation at Rs.77,000/-. The award with regard to interest and payment schedule is maintained. The amount deposited, if any by the appellant shall be transmitted to the Jurisdictional Employee’s Compensation Commissioner/Civil Judge. The award amount shall be disbursed to the claimant and balance amount shall be refunded to the appellant/insurer.