JUDGMENT :

H.K. Rathod, J.

Heard learned advocates appearing on behalf of respective parties.

2. This appeal is filed by appellant under Section 30 of Workmen Compensation Act challenging judgment and order passed by Workmen's Compensation Commissioner, Baroda in Workmen's Compensation Case No.53 of 1998 decided on 30th July 2001. The Commissioner has awarded compensation of Rs.1,07,094/- with 6% interest and 20% penalty Rs.21,490/- with cost of Rs.1,000/-.

3. In Civil Application No.1038 of 2002 filed with present First Appeal, following order is passed by Division Bench of this Court on 20th March 2002, which is quoted as under :

"Heard the learned counsel for the respective parties.

On the facts and circumstances of the case, it is directed that opponent No.1 original claimant may withdraw 20% of the amount deposited by the applicant with the Commissioner of Workmen's Compensation without security and a further 30% of the deposited amount on furnishing security. The balance of 50% of the amount deposited shall be invested in a fixed deposit with any Nationalised Bank in the name of the Registry initially for a period of three years and on maturity shall be reached by one year at a time without further orders in this regard. Interest that may accrue on this deposit shall not be disbursed, but, shall be ordered to the principal amount on maturity. This application is accordingly disposed of."

4. Learned advocate Mr. K.K. Nair raised number of contentions before this Court against judgment and order passed by Commissioner. The amendment is made in appeal memo which has been allowed by this Court where contention is raised that medical certificate Exh.30, which admittedly does not state the extent of loss of earning capacity of claimant, which goes to root of the case. The further contention is that Commissioner has failed to appreciate that it was mandatory for petitioner to have adduced appropriate evidence showing extent of loss of earning capacity and that in absence of such evidence, was it permissible for Commissioner to assess 100% loss of earning capacity in instance case. The Commissioner has failed to appreciate that impugned medical certificate Exh.30 does not satisfy statutory requirements of Section 4(1)(c)(ii) of Workmen's Compensation Act. In short, his submission is that medical certificate produced vide Ehx.30 is not proved because Doctor was not examined by claimant before Commissioner. He also raised contention that 26% disability which is permanent partial disability, not permanent total disability, therefore, Commissioner has committed gross error in considering permanent total disablement being 100%. He also raised contention that injury is not covered by Schedule injury and therefore, Commissioner has committed error in considering 100% disability. He also emphasised that in medical certificate Exh.30, general condition has been considered good and he is declared to be fit for duty by Doctor. Even though, this medical certificate though it was on record and exhibited, but, this note of Doctor that he has been considered fit for duty, ignored by Commissioner. He also submitted that 26% disability has been reduced by claimant to 20% and on that basis, amount of compensation is to be worked out not on the basis of 100% permanent disability. He also raised contention that accident occurred on 17th July 1997, subsequently in the year of 1998, he renewed driving licence. If he is not fit for work of driver, then, there is no question of driving licence to be renewed by claimant. He also submitted that earlier licence period was expired, therefore, it was renewed and such renewal of driving licence without test is not permissible, therefore, renewal suggests that he is fit for driving work. He relied upon certain decisions reported in 1991 ACJ 638 in case of State of Gujarat v. Rajendra Khodabhai Deshdia and Anr., where, Court has held that in a non scheduled injury, workman will have to show by leading evidence loss o