1. This is an appeal from the order, dated 04.02.1999 passed by the Commissioner for Workmen's Compensation, Eluru in W.C.No.111 of 1997.

2. Pamarthi Subba Rao, the injured workman, who was the applicant before the Tribunal preferred the present appeal challenging the order passed therein on the ground though the permanent disability suffered by him on account of the injuries sustained in the accident occurred is 50% which is partial and permanent in nature according to the doctor-PW2, who treated him and issued disability certificate, the learned Commissioner ought to have considered the disablement as total (100%) since he was not capable of discharging the duties as a workman which he was discharging prior to the accident.

3. I have heard Sri N.Subba Rao, learned counsel appearing for the appellant and Smt M.Bhaskara Lakshmi, learned counsel appearing for the second respondent- insurance company.

4. In fact, learned single judge in this matter earlier made a reference to the Division Bench on the disputed question whether the appellant is entitled for compensation considering his disability as 100%. Though the injuries suffered by him in the accident are not the injuries mentioned in (i) are in Workmen's Compensation Act, 1923 or the combination of injuries specified in Part II of Schedule 1 of Workmen's Compensation Act, 1923. According to the learned single Judge, who had an occasion to deal with the present case earlier, there are conflicting judgments and disputed question and thus he made the reference.

5. Pursuant to the reference made by the learned Single Judge, the Division Bench of this Court by order dated 12.03.2008 answered the reference in C.M.A.No.3036 of 2001 (from the present case) as follows:

"In all the above circumstances, the reference is answered as follows: "inspite of there being no sufferance of injuries mentioned in Part II of Schedule I, if there is 100% disability to do the work, the workman was doing earlier, it has to be treated that the workman has suffered 100% disability". The reference is answered accordingly."

6. In fact, the Division Bench while answering the reference straight away held that the appellant-workman is entitled for compensation for 100% functional disability. However, in this appeal Smt M.Bhaskara Laxmi, learned counsel appearing for the 2nd respondent-insurance company would submit that though the Division Bench answered the reference in terms above indicated, the issue requires re-consideration in the light of the judgment of the Supreme Court in ORIENTAL INSURANCE COMPANY LIMITED v MOHD.NASIR AND ANOTHER (2009)6 SCC 280 wherein it was held that while granting the compensation the tribunal shall not deviate from the opinion of the doctor regarding the percentage of loss of earning capacity. The Tribunal is under a duty to record the reasons if it deviates from the opinion of the doctor.

7. Reliance is also placed by the learned counsel on NEW INDIA ASSURANCE COMPANY LTD., SECUNDERABAD v ABDULKHADER JILANI @ JILANI AND ANOTHER 2007(4) ALT 607 (D.B) wherein a Division Bench of this Court while answering the similar reference held that in the case of non schedule injuries under the Workmen's Compensation Act, 1923. The quantum of compensation shall be determined depending on the assessment made by qualified medical practitioner on the issue of loss of earning capacity on the workman and in the case of non schedule injury, examination of qualified medical practitioner is an essential requirement of law to assess loss of earning capacity.

8. The essence of the submission made by the learned counsel appears to be that the Division Bench while answering the reference in the present case did not take into consideration the principle laid down by the Apex Court and another Division Bench of this Court earlier which is to the effect that for assessing loss of earning capacity in relation to functional disability sustained by the workman the opinion of the qualified medical