INDERJEET SINGH, J.

1. The instant appeal has been filed by the appellant against the order dated 28.12.2004 passed by the Commissioner Workmen's Compensation, (hereinafter referred to as Commissioner) Jaipur District, Jaipur in case No.WCCNF-44/2003.

2. Brief facts of the case are that the claimant-respondent had filed a claim petition for Rs. 4,72,944/- plus interest @ 18% and penalty under the provisions of Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as Act of 1923) for the injuries sustained by him during the course of employment as a driver on truck No. HR-51-GA-2711 on 2.03.2000 within the jurisdiction of P.S. Bagru. His truck had collided with another truck bearing No.RSM-9697. It was further stated by him in the claim petition that he was 35 years of age and drawing salary of Rs. 4,000/- per month as a driver. As a result of the accident and injuries sustained thereby he alleged that he was permanently disabled and unable to continue his occupation as driver.

3. The appellant-Insurance Company filed its reply and denied the averments of the claim petition for want of knowledge and proof besides defense of breach of policy conditions.

4. The learned Commissioner vide order dated 28.12.2004 partly allowed, the claim petition and awarded a sum of Rs. 2,36,472/- along with interest @ 9% in favour of the claimant.

5. Counsel for the appellant submitted that there is no relationship of employee and employer between the claimant and the owner of the vehicle. Counsel further submits that according to permanent disability certificate issued in favour of the claimant disability was only 40%, whereas, the Commissioner has wrongly held that there is loss of 100% in earning capacity. Counsel further submitted that there is violation of policy conditions in this matter.

6. Counsel for the respondent supported the judgment passed by the learned Commissioner and submitted that no substantial question of law is involved in this appeal and the Commissioner is the last authority in facts.

7. Heard counsel for the parties.

8. The first contention raised by the counsel for the appellant regarding no relationship of employee and employer between the claimant and the owner of the vehicle is acceptable in view of the finding given by the learned Commissioner on issue no.1. The second contention raised by the counsel for the appellant regarding wrongly assessment of the loss of earning capacity as 100% is also acceptable in view of the finding given by the learned Commissioner on issue no.2 wherein the learned Commissioner has considered the disability certificate issued in favour of the claimant by a Medical Board for 40% and the Medical Bard has also opined that there is shortening of lower limb. The learned Commissioner considering the nature of the job performed by the claimant as driver and also considering that there is shortening of left leg comes to a conclusion that in future, he would be unable to work as driver and held loss of 100% in earning capacity in future. Thus, in my considered view, the issue no.2 as also rightly decided by the learned Commissioner. The Hon'ble Supreme Court in the matter of Pratap Narain Singh Deo v. Shrinivas Sabata and another, reported in 1976 ACJ 141 wherein para no. 5 & 8 has held as under:-

"5. The expression "total disablement" has been defined in Section 2(i)(1) of the Act as follows:

(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement. It has been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:

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