1. Appellant, while working as the driver of the lorry belonging to the 1st respondent, which was insured with the 2nd respondent, suffered injuries in an accident that occurred on 22.06.1996 at about 1.30 P.M. So he filed an application under the Workmen's Compensation Act, 1923 (for short 'the Act') seeking compensation of Rs.2,50,000/- from the respondents. First respondent chose to remain ex parte. Second respondent filed its counter contesting the claim. In support of his case, the appellant, besides examining himself as P.W.1, examined the doctor who treated him as P.W.2 and marked Exs.A.1 to A.7. The Commissioner, having held that the appellant sustained injuries out of and during the course of his employment with the 1st respondent and suffered a permanent disability resulting in loss of earning capacity of 70%, awarded Rs.1,69,733/- as compensation to the appellant against the respondents. Dissatisfied with the compensation awarded to him, the injured workman preferred this appeal.

2. The contention of the learned counsel for the appellant is that in view of the evidence of P.W.2 the doctor that the disability of the appellant as driver is 100%, the Commissioner was in error in fixing the loss in earning capacity of the appellant at 70% only and ought to have fixed the disability of the appellant at 100% by relying on National Insurance Company Ltd Vs. Rajesh Helmandge and another1, Janatha Modern Rice Mills Vs. G.Satyanarayana2, Pratap Narain Singh Deo Vs. Shrinivas Sabata and another3, Pamarthi Subba Rao Vs. H. Rama Rao and another4, Shivalinga Shivanagowda Patil Vs. Erappa Basappa Bhavihala5, The National Insurance Co. Ltd Vs. Mohd. Saleem Khan and another6, New India Assurance Company Ltd., Vs. Kotam Appa Rao and another7, Lingampalli Rajam (died) by L.Rs. Vs. Colliery Manager, Morgan's Pit Singareni Collieries Co., Ltd8, Rayapati Venkateswara Rao Vs. Mantai Sambasiva Rao and another9, G. Anjaneyulu Vs. Alla Seshi Redy and another10, Gorla Obula Reddy Vs. K. Rajgopal Reddy and another11 and Executive Engineer, Public Works Department and another Vs. Bhimrao Manikrao Unhale12. The contention of the learned counsel for the 2nd respondent is that inasmuch as P.W.2 stated that the disability of the appellant works out up to 40% only, the Tribunal, in fact was in error in assessing the loss in the earning capacity of the appellant at 70% and the appellant, instead of feeling happy with the compensation awarded on the basis that he has 70% permanent disability when the evidence of P.W.2 the doctor shows that he has only 40% permanent disability filed this appeal avariciously to claim compensation on the basis that he has 100% permanent disability and contended that inasmuch as the injury suffered by the appellant is a non schedule injury, the evidence of P.W.2 the doctor is relevant for assessing the loss in the earning capacity, and contended that inasmuch as the decisions relied on by the learned counsel for the appellant relate to schedule injuries appellant is not entitled to seek compensation on the basis that he has 100% disability and relied on New India Assurance Company Limited Vs. Abdul Khader Jilani13 in support of the said contention.

3. The evidence of P.W.2 the doctor who treated the appellant is that the appellant suffered fractures of both legs and that the right leg of the appellant is shortened by 4 inches with muscle weakness of 4th grade and that the disability of the appellant is 40% which is of permanent nature, and that the appellant cannot work as a driver as the shortening of leg by 4 inches is as good as non functional, and so he assesses the loss of earning capacity of the appellant at 50% and as a driver the loss of earning capacity of the appellant is 100% as he is not fit to work as a driver as he cannot walk without the aid of crutches, and would have permanent limp.

4. Janatha Modern Rice Mills case (2 supra) relates to amputation of the left hand, Pratap Narain Singh Deo case (3