Loss of earning capacity is not the same as loss of physical capacity, and the distinction between the two is relevant in determining loss of earning capacity.

( 1 ) THIS appeal is from the judgment and the order of the Additional Commissioner for Workmen's Compensation dated 24 September, 1966 in Claim Case No. 2545 of 1964. The company is the appellant and the workman is the respondent. The workman received personal injury by accident arising out of and in the course of his employment on 27th April, 1964. The workman alleged that he sustained injuries to the left leg and the hip. The workman claimed compensation. The Company admitted that there was an accident and further admitted that there was injury to the hip but denied that there was injury to the leg.

( 2 ) THE Additional Commissioner for Workmen's Compensation framed two issues. One of the issues was whether the applicant sustained any permanent partial disability on account of the accident in question. The Commr. came to the conclusion that there was an accident and that the accident arose out of and in course of the employment. The further conclusion was that there was injury to the leg as well as the hip and there was permanent partial disablement. The Commissioner came to the conclusion that the applicant lost his earning capacity and assessed the same as 40 per cent loss of earning capacity.

( 3 ) COUNSEL for the appellant contended first that the evidence of the workman was that after the accident he was getting a sum of Rs. 112 per month and therefore, there was no loss of earning and his earning capacity was not reduced. The second contention was that there was no evidence to support the case of loss of earning capacity. Reliance was placed by Counsel for appellant on the Bench decisions in Agent, East Indian Railways v. Maurice Cecil Ryan, AIR 1937 Cal 526, Sukhai v. Hukum Chand Jute Mills Ltd. ; Kali Das Ghosal v. S. K. Mondal, Commissioners for the Port of Calcutta v. Prayag Ram. These Bench decisions were relied on by Counsel for the appellant to contend that physical incapacity would not be the same as loss of earning capacity.

( 4 ) IT is necessary to refer to a few provisions of the Workmen's Compensation Act. Section 2 (1) (g) defines partial disablement as follows:--" 'partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time".

( 5 ) THE other relevant section necessary for the purpose of the present case is Section 4 (1) (c) (ii) which refers to compensation in cases of scheduled and non-scheduled injuries.

( 6 ) THE injury in the present case is a non-scheduled one and there is no dispute as to that.

( 7 ) THE definition of partial disablement is in two limbs. The statute contemplates partial disablement of a temporary nature and partial disablement of a permanent nature. It is significant to notice the distinction between the two cases of disablement. In the case of disablement of a temporary nature the loss of earning capacity which is spoken of is in any employment in which he was engaged at the time of the accident resulting in the disablement. In other words, the employment in which the workman was engaged at the time of the accident is material. In the case of disablement of a permanent nature the reduction of earning capacity is spoken with regard to every employment in which the workman was capable of undertaking at the time of the accident. In the present case it is a partial disablement of a permanent nature and therefore, the matter for consideration is whether there is reduction of earning capacity in every employment which he was capable of undertaking at that time of the accident resulting in disablement.

( 8 ) THE contention of Counsel for the appellant is that the workman was earning the same salary if not higher than before the a