The main legal point established in the judgment is the assessment of total permanent disablement under the Workmen's Compensation Act, emphasizing that the disablement should be assessed with reference to the work the worker was capable of performing at the time of the accident.

( 1 ) THIS appeal is directed against the judgment and award dated 12. 5. 1998 passed by the Labour Officer and Commissioner for Workmen's Compensation, Mandya District, Mandya, in case No. CWC/crmf No. 95 of 1994-95.

( 2 ) IN the matter of accident that had taken place on 21. 8. 1994 at the time and place mentioned in the claim petition, it has been found by the Labour Officer and commissioner for Workmen's Compensation Mandya District, Mandya, that the claimant workman, i. e. , respondent No. 2 sustained grievous injuries. The Labour officer and Commissioner for Workmen's compensation, assessed the compensation to the tune of Rs. 79,900 together with interest at the rate of 6 per cent per annum.

( 3 ) BEING aggrieved by the judgment and award passed by the Labour Officer and Commissioner for Workmen's Compensation, Mandya District, Mandya, the employer and insurance company have come up in appeal under section 30 of the workmen's Compensation Act, 1923.

( 4 ) MR. O. Mahesh, the learned counsel for the appellants has contended that the compensation awarded to the tune of rs. 79,900 is illegal. He pointed out that this is a case of partial permanent disablement resulting from the injury. This disablement is covered by section 4 (1) (c) clause (ii) of the Workmen's Compensation Act. He further contended that in the case of permanent partial disablement specified in Schedule I, the compensation payable will be as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner ). He further contended that the doctor who has been examined has certified the disablement to the tune of 40 per cent and not more. As such the Labour Officer and Commissioner for Workmen's Compensation was not justified in taking or assuming 100 per cent loss of earning capacity, as there was no other evidence of the qualified medical practitioner, contrary to the evidence of dr. Thomas before the Labour Officer and commissioner for Workmen's Compensation. He submitted that there can be no dispute on one point that if there are two qualified medical practitioners produced in the case and their assessment of permanent partial disablement throws difference of opinions of the two regarding the proportion of disablement or loss of earning capacity. In that case, no doubt the Labour officer and Commissioner for Workmen's compensation has got jurisdiction to rely and accept the evidence of either of the two medical practitioners. But where there is only one qualified medical practitioner who has assessed the loss of earning capacity of the injured and its percentage and there is no evidence in rebuttal or to the contrary to that medical evidence, the labour Officer and Commissioner for workmen's Compensation ought to have acted on that evidence or when he was not satisfied, then he should have called for the fresh report either from that doctor or from a different doctor. But this has not been done. The Labour Officer and Commissioner for Workmen's Compensation could not award on his own assuming the loss of earning capacity to 100 per cent.

( 5 ) MR. H. C. Shivaram, learned counsel for the respondent has contended that looking to the injuries and his incapability to perform the job of driver or other works, it had to be taken total permanent disablement and 100 per cent loss of earning capacity. The learned counsel further contended that the injuries on the hip joints resulted in shortening the leg and the injury in the wrist also disabled the respondentclaimant from performing the job of driver, which the claimant-injured has been doing prior to the accident. When he was a skilled labourer, i. e. , as driver, looking to his age as well he could not be expected to undertake other job of sweeper or cobbler, etc. The learned counsel further submitted that award of compensation assuming the loss to be total permanent disablement was justified one.

( 6 ) THE question, no doubt, whether it is the case of total permane