Loss of earning capacity is a question of fact that must be proved by evidence of physical injury resulting in a loss of earning capacity. Medical evidence alone is insufficient to determine the loss of earning capacity.

( 1 ) THIS is an appeal against an order of the Commissioner Workmen's Compensation, West Bengal dated 21st August, 1963 whereby he has ordered a sum of Rs. 840 to be paid to the workman concerned by way of compensation. The facts are shortly as follows: The workman Prayag Ram was employed by a contractor working under the Commissioners for the Port of Calcutta, us a porter No. 2, Calcutta jetty belonging to the said Commissioners. On the 27th day of November, 1962 in course of his employment, a bundle of paper fell on the left foot of the workman, causing injuries. The workman made an application for compensation on 8th of April, 1963. The employer took a number of objections, namely, that the application is barred by limitation, that the accident did not arise in course of employment etc. We are not however concerned in this case with any such objections because there is only one objection that has been placed before us which will be presently mentioned. At the hearing before the Commissioner, the only evidence adduced was oi two doctors, one on each side. On behalf of the workman, Dr. S. K. Neogy gave evidence. Previous to his examination before the said tribunal, Dr. Neogy had given a medical certificate dated 21st August 1963 a copy whereof is at pages 2. 5-26 of the paper book. At the examination before the tribunal he merely proved this certificate which is marked as Ext. 1 but he did not state that the statements contained therein were true or correct. We should, therefore, go by his deposition given before the tribunal. This evidence is to be found at pages 15-16 of the paper book. He states that there was:"bony tenderness, swelling, deformity of the 1st cuneiform bone of the left foot, suggesting a mal-united fracture. Bony tenderness and swelling of the 1st meta-tarsal bone with rigid joint. The gait was limping. "as regards loss of earning capacity, there is a summary statement "i assess at 20 per cent. "

( 2 ) ON behalf of the employer, Dr. R. Choudhury was examined. He has given evidence as follows;"there is swelling on the medial side at the terminal portion of the 1st metatarsal bone, but there is no bony tenderness here. There is only tenderness of the soft tissues. There is a very faint tenderness over the medial cuneiform bone. No swelling there either of bone or of soft tissues. Gait is normal and movements are normal. "this doctor also makes a summary assessment of the loss of earing capacity by saying--"my assessment is 5 per cent". Besides the evidence of these two doctors, two skiagrams and the relevant report of the radiologist have been put in on behalf of the workman. I do not see how, in the absence of calling the persons making the report or the skiagrams, they be taken as evidence, but I need not dilate here on this aspect because nothing turns upon it. The Commissioner, after considering the evidence came to the conclusion that there has been no permanent disablement in respect of the 1st metatarsal bone, but there has been such disablement in respect of the medial cuneiform bone which was "serious enough". He then proceeded to say--"i assess the extent of permanent disablement, affecting earning capacity at 20 per cent. " He then held that as his monthly wage belonged to the category of Rs. 80 to Rs. 180 the applicant was entitled to a sum of Rs. 840 and as he had already received a sum of Rupees 99. 17 np. he was entitled to recover a sum of Rs. 740. 83 np. by way of compensation. The only point pressed before us on behalf of the appellant is that the loss of earning capacity had not been proved and accordingly the award of compensation is illegal and should be set aside. In the facts and circumstances of the case, we are of the opinion that this point is of substance and should be upheld. The relevant provisions of the Workmen's Compensation Act, 1923 (Act VIII of 1923) (hereinafter referred to as "the said Act") are as follows: The preamble of the said Act states that it is an A