MRs. B.V. Nagarathna , J.—The Insurance Company has preferred this appeal by challenging the order passed by the Workmen's Compensation Commissioner in Case No. WCA No. 23 of 2000, dated 28.4.2003 on the question of quantum of compensation. The facts of the case leading to the filing of this appeal are that on 14.3.2000 the respondent/claimant who was driving the auto bearing No. KA-03 1622 during the course of his employment sustained injuries. There were two fractures of his left leg. Contending that he had lost his earning capacity, he filed the claim petition seeking compensation under the Workmen's Compensation Act, 1923.

2. After service of notice from the Court of the Workmen's Compensation Commissioner, the appellant herein appeared and contested the matter.

3. On the basis of the evidence on record, the W.C. Commissioner held that there was 100% of loss of earning capacity and accordingly, awarded compensation of Rs. 2,56,284/- with interest at the rate of 12% p.a. from the date of petition till realisation. The said award is challenged in this appeal.

4. I have heard the learned Counsel for the appellant and learned Counsel for the respondents.

5. It is contended on behalf of the appellant that in the instant case, there were no doubt fractures to the left leg of the respondent, but the doctor had opined that there was only 62% disability to the limb and there was whole body disability to 33 to 34%. But the Commissioner has assessed loss of earning capacity to an extent of 100%, which is contrary to the evidence on record and hence this is a fit case where the quantum of compensation has to be reduced.

6. Per contra, learned Counsel for the respondent has submitted that the evidence of the doctor would clearly show that the respondent was walking with the help of crutches on account of multiple fractures sustained by him. The details of the disabilities have been given by the doctor and even according to the doctor, the disability to the limb is 67% and therefore, under the circumstances the Commissioner was justified in coming to the conclusion that the respondent would not be in a position to earn his livelihood as driver and therefore 100% loss of earning capacity determined by the Commissioner is just and proper and the quantum of compensation awarded in the instant case does not call for any interference.

7. Having heard the learned Counsel on both sides and on perusal of the material on record, the only point that would arise for my consideration is as to whether the quantum of compensation awarded in the instant case requires to be reduced.

8. From the material on record it is not in dispute that on 14.3.2000 the respondent sustained injuries while driving the auto as a driver under the employment of the second respondent herein. It is also not in dispute that there were two fractures to the left leg in respect of which the respondent had undergone surgery and despite the surgery and treatment taken by him, he was walking with the help of crutches and that there was mal-union of fractures and also there was restriction in the movement and shortening of the left leg. Under the circumstances, the doctor had opined that there was 67% disability to the left limb though the whole body disability was to an extent of 34%. But taking into consideration the nature of employment of the respondent i.e., as a driver of the auto and the fact that the respondent was able to move about only with the help of crutches, the mere fact that the whole body disability is to an extent of 34% would not be a relevant consideration while assessing the loss of earning capacity. If the nature of the employment and the restriction in the movement of the respondent is taken into consideration, then the Commissioner is justified in assessing the loss of earning capacity at 100% by relying upon a decision of the Apex Court in AIR 1976 SC 52. In this context it would be of relevance to refer to another decision of the Apex Court in the case