The main legal point established in the judgment is the interpretation of Section 4 of the Workmens Compensation Act, emphasizing that if a workman has been incapacitated to do the work which he was capable of performing before the accident, it would mean that he is totally disabled and his loss of earning capacity is 100%.

Deepak Gupta, J. (Oral).: This is an appeal by the Workman under Section 30 of the Workmens Compensation Act. The appeal has been admitted on the following substantial questions of law:-

1. Whether the learned Commissioner is right in assessing the compensation by taking disability at 30% despite holding that the loss earning capacity is to the extent of 100% by misconstruing the provisions of Section 4 of the Workmens Compensation Act, 1923?

2. Whether the learned Commissioner is right in not awarding 50% penalty as envisaged under Section 4-A of the Workmens Compensation Act?

3. Whether the learned Commissioner is right in not taking into consideration the law laid down by this Honble Court titled-H.P. State Forest Corporation vs. Sees Ram reported in 2000 (1) SLJ 709?

4. Whether the learned Commissioner erred law in ordering the deduction of ex-gratia payment?

2. The brief facts necessary for the decision of the case are that appellant-Puran Dutt was working as a driving in the H.R.T.C. on 29.9.1999 the claimant was on duty with bus No. HP-07-2099 which met with an accident The claimant suffered serious injuries in the accident and his right leg was crushed. He was taken to hospital. In view of the injuries, the claimant has suffered 30% disability. However, there is sufficient material on record to show that as far as the work of driving is concerned, he is totally unable to do with work.

3. The first question of law raised is that whether the Commissioner should have assessed the compensation by taking the loss to the earning capacity at 100%. Section 4 of the Act provides the method of computing compensation payable to the workmen. Section 4(1) (c) of the Act reads as follows:- "4(1) (a) xxxxxxxxxx (b) xxxxxxxxxx (c) Where permanent partial disablement results from the injury (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and (ii) in the case of an injury that specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;"

4. It is clear from a reading of Section 4(1) (c) that in case of injury not specified in Schedule-I the Commissioner can award such compensation as is proportionate to his loss of earning capacity as assessed by a qualified medical practitioner. The expression total disablement has been defined in Section 2(1) (1) of the Act which reads as follows:- "2(1)(l) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement: (provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more)". 5.This expression has been considered by the Apex Court in Partap Narain Singh Deo vs. Srinivas Sabata and another (1976) 1 SCC 289 wherein para 5 of the Court held as follows: "5. The expression "total disablement" has been defined in Section 2(1) (I) 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 not 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 disable