Heard the learned counsel for appellant and learned counsel for the respondent.

2. The appellant is the Insurance Company seeking to question the award of compensation under the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘W.C. Act’, for brevity). The substantial question of law raised in this appeal is whether the Commissioner for Workmen’s Compensation was justified in assessing the loss of earning capacity at the rate of 100% as against the compensation of disability at the rate of 30% assessed by the Medical Practitioner, which is in consonance with the injuries mentioned at Serial No.36 of Part -II Schedule – I of the W.C. Act.

The accident is of the year 2009. It is on record that the claimant – respondent was a driver of a lorry and had lost the vision in his left eye, as a result of the accident, during and in the course of employment, and therefore, the claim for compensation having been contested, the Commissioner has overlooked the assessment made by the Medical Practitioner as well as the Schedule prescribing the loss of earning capacity and has proceeded to accept the contention that there is 100% loss of earning capacity as the workman was employed as a driver and by virtue of the injury and disablement he was no longer capable of continuing as a driver and has concluded that this has resulted in 100% disability. Such a conclusion arrived at is not on the basis of any evidence tendered as regards total disablement, but only on the premise that the avocation in which the workman was engaged was as a driver, and that he was no longer capable of driving a lorry.

3. The learned counsel for the appellant would place reliance on a Full Bench decision of this Court in the case of Shivalinga Shivanagowda Patil and Others versus Erappa Basappa Bhavihala and Others, ILR 2004 Kar 193, to contend that the questions that were considered in the said decision were as follows:

(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 Section 4(1)(b) of the Act for an injury that falls under Section 4(1)(c)(i) r/w Part II of Schedule I to the Act?”

4. Question No. (i) & (iii) are pertinent and relevant to the present appeal. The Full Bench has squarely answered the same, to hold that the loss of earning capacity cannot be relatable to only the work that he was performing at the time of the accident and the assessment should be with reference to all work that a workman was capable of undertaking. And that this is the reason why the Schedule in respect of such injuries prescribes the minimum percentage of disability while it is open for a workman to tender evidence and to establish that the loss of earning capacity would be much more than what is indicated in the Schedule. Apart from this leeway, there is no discretion available to the Commissioner to assume that the loss of earning capacity was in excess of what has been assessed by the Medical Practitioner, and therefore, would rest his case on the contention that the loss of earning capacity could not be at the whim and fancy of the Commissioner for Workmen’s Compensation in attributing any larger loss of earning capacity than what has been determined by a Medical Practitioner, in the ca