The main legal point established in the judgment is the commissioner's authority to sit in judgment over the assessment of loss of earning capacity by a qualified medical practitioner if disputed by the parties.

( 1 ) THIS reference has been placed before us as per the direction of the chief justice dated September 16, 2003. Initially, a learned single judge of this court referred mfa No. 27/1996 on November 10, 2000 to the division bench. The division bench had found that the conflicting decisions rendered by the co-ordinate benches of this court have led to a certain amount of confusion. The division bench in Divisional Manager, Ksrtc v. Bhimaiah 1976 2 klj 396 : 1977-ii-LLJ-531 (kant-db) held that the disability does not amount to total disablement, as the workman was capable of performing duties and executing works other than driving. Another division bench in National Insurance co. Ltd. V. R. Vishnu 1994-iii-llj (suppl)-635, upheld the Orderby which the commissioner had treated amputation of left leg of workman as total disability for awarding compensation. On the basis of these two division bench decisions, conflicting views have come on the point in other single bench decisions. Therefore, for a proper pronouncement on the point, these cases are referred to full bench vide Orderdated August 29, 2003.

( 2 ) THE necessary facts leading to this reference are a few and for the sake of convenience, we May refer to the facts in the case of mfa 27/1996, which are as follows: the respondent is alleged to be under the employment of appellant No. 1 as driver of the vehicle bearing registration No. Fa-24- 324. While driving the said vehicle he sustained injuries in an accident, which occurred on Februaary 22, 1993 near kittur village along national highway No. 4. A claim petition under Secrion 22 (2) of the workmen's compensation act, 1923 (for short 'the act') was filed claiming compensation of Rs. 1,10,000 with interest, for the injuries sustained in his right patella and knee joint. The doctor assessed the disability to 35 percent, whereas the commissioner enhanced the disability to the extent of 80 per cent. In other identical matters, the commissioner enhanced the disability from 40 per cent to 80 per cent in mfa 3912/1999, from 30 per cent to 80 per cent on the basis of evidence of another doctor in mfa 2986/1997, from 50-55 per cent to 75 per cent in mfa 3039/1997; and fixed the disability at 50 per cent in absence of any medical evidence in mfa 558/1997.

( 3 ) SINCE the questions involved in all the above appeals are similar and identical, as agreed the following common questions referred have been heard together and answered of by this common order.

( 4 ) THE division bench has referred the following questions: (I) whether the commissioner under the workmen's compensation act can assess the loss of earning capacity without or in disregard of the assessment of a qualified medical practitioner? (ii) what is the procedure to be followed by the commissioner for determining the compensation payable to the workmen in cases where neither the workman nor his employer has produced any medical evidence to show the extent of loss of earning capacity resulting from the injury sustained by the former? (iii) whether the determination of the loss of earning capacity has to be by reference to the work, which the workman was performing at the time of the accident, or by reference to his capacity to do any other work after he has sustained the disability? (iv) whether the commissioner can while determining the amount of compensation, award a compensation under Secrion 4 (1 ) (b) of the act for an injury, that falls under Secrion 4 (l) (c) (i) r/w part ii of schedule I to the act?

( 5 ) SRI a. n. krishna swamy for Sri r. Jaiprakash and Sri seetharama rao, learned counsels appearing for the insurance companies, contended that while awarding compensation in respect of an injury not specified in schedule i, the commissioner has no option except to give effect to the assessment made by the medical practitioner in regard to loss of earning capacity. They relied on the judgments in the case of Amar Nath Singh v. Continental Constructions