Loss of limb constitutes total disablement, warranting full compensation under Workmen's Compensation Act.

1. Leave granted. The challenge in this appeal is to the judgment and order dated 23-7-2007 rendered by a Division Bench of the Karnataka High Court, whereby the principal amount of compensation of Rs.5,20,584 awarded by the Commissioner for Workmen's Compensation (for short "the Commissioner") has been reduced to Rs.2,60,292.

2. The appellant (hereinafter referred to as "the claimant") was a lorry driver. On 26-9-2002, while driving the vehicle, he met with an accident near Ganesh garage on Bangalore - Mangalore Road. He lost control of the vehicle and it overturned on the right side of the road. As a result of the accident, the claimant suffered serious injuries to his right leg, on the head and other parts of the body. Although he survived but ultimately his right leg had to be completely amputated just below the knee.

3. The claimant filed a claim petition before the Commissioner praying for adequate compensation. It was pleaded that as he was 25 years of age; earning ?4000 per month with daily allowance of ?100; had suffered permanent disability, which would prevent him from engaging in the job of a driver which he used to do earlier, he was entitled to adequate compensation from the Insurance Company and the owner of the lorry, Respondents 1 and 2 in this appeal. The claim petition was contested by Respondent 1. Respondent 2 was proceeded against ex parte.

4. On the pleadings of the parties, the Commissioner framed as many as six issues, including the issue with regard to the percentage of disability and loss of earning capacity suffered by the claimant. On this issue, the claimant adduced evidence of the doctor, who had treated him after the accident and his photographs (Ext. P - 5). The witness stated that since the claimant had suffered 93% permanent disability in his right leg, he will not be able to do I the job of a driver or any other job because he will not be able to stand or walk without support.

5. Accepting the evidence of the doctor, the Commissioner came to the conclusion that the claimant's right leg up to the knee having been amputated, he has suffered a loss of 100% of his earning capacity as a driver. Inter alia, observing that the claimant was 25 years of age at the time of the accident, by his order dated 17-1-2005, the Commissioner took his salary at ?7000 per month (Rs.4000 per month and Rs.100 daily allowance) and accordingly determined the compensation payable to him at Rs.5,20,584. Interest @ 12% per annum thereon from one month after the date of the accident till the date of payment was also awarded.

6. Being dissatisfied with the award, the Insurance Company preferred appeal to the High Court. As stated above, the High Court accepted the plea of the Insurance Company that as per Schedule I Part.2 to the Workmen's Compensation Act , 1923 (for short "the Act") loss of a leg on amputation amounted to a 50% reduction in the earning capacity. The High Court held that being an injury specified in Schedule I medical opinion could not be
I relied upon in terms of S.4(1)(c)(h) of the Act. Accordingly, applying the percentage of loss of earning capacity, as specified in Part II of Schedule I, the High Court reduced the compensation by 50%. However, award of interest thereon @ 12% per annum from one month after the date of accident till the date of payment was maintained. Hence the present appeal by the claimant.

7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of S.2(1)(l) of the Act and as such the compensation payable to the claimant had to be computed on t