S. B. SINHA, M. H. S. ANSARI, J.

( 1 ) THIS appeal under section 30 of the Workmen's compensation Act is directed against a judgment dated 7/20. 2. 1997 passed by the commissioner, Workmen's Compensation, West Bengal (2nd court) in Claim case No. 755 of 1995.

( 2 ) ALTHOUGH the matter has been listed under the heading application, as we find substantial question of law is involved in this appeal, we take up the matter for hearing and the same is being disposed of.

( 3 ) THE fact of the matter lies in a very narrow compass. The applicant-respondent herein was a khalasi in vehicle No. WB-03-8097. While the said vehicle was going from digha to Ranaghat there was a head-on collision in between the said vehicle and another vehicle coming from opposite direction as a result whereof, he sustained injuries on his neck, both legs, hands and shoulders. The claimant herein had examined a doctor, PW 2, who has assessed his injury as 100 per cent as the victim is unfit for the job of khalasi.

( 4 ) THE learned Commissioner framed the following issues for his consideration:"issue No. 1: Was there any accident arising out of and in course of the applicant's employment under the O. P. as alleged? issue No. 2: What was the actual age and rate of monthly wage of the applicant at the time of accident? issue No. 3: Has the applicant sustained any permanent partial disablement involving loss of earning capacity? If so, to what extent? issue No. 4: Is the insurance company, op 2, liable to pay compensation?"

( 5 ) CURIOUSLY enough issue Nos. 1 and 3 were taken up for hearing together and were disposed of by one para judgment which is as follows:"these two issues are taken up together as they are co-related and interlinked. The applicant has stated in his application that he was a khalasi of vehicle no. WB-03-8097 belonging to Kamal banerjee. On 18. 8. 1994 at about 2. 30 a. m. in the night there was a head-on collision with another vehicle coming from opposite direction in a place within ranaghat P. S. The applicant received injuries on his neck, back, both shoulders and upper limbs. After the accident he was removed to Ranaghat Sub-Divn. Hospital, thereafter he was referred to j. N. Hospital at Kalyani, where he was treated as an indoor patient for 13 days. He has been using neck-belt as per advice of the doctor. Dr. M. N. Parbat, pw 2, has assessed 100 per cent disability as the applicant is unfit to work as khalasi. Exh. 5 goes to show that khalasi of Matador van was seriously injured. Hence, issue Nos. 1 and 3 should be decided in favour of the applicant. Therefore, issue Nos. 1 and 3 are decided in favour of the applicant. "

( 6 ) THE only substantial question of law which arises for consideration in this appeal is as to whether compensation has to be granted upon taking into consideration the provisions of Part I of the First schedule made in terms of section 2 (1)and section 4 (1) of the Workmen's Compensation Act. It is true that the said list may not be exhaustive in the sense that the list of injuries stated therein would be deemed to result in permanent total disablement.

( 7 ) MR. K. K. Das, learned counsel for the appellant has placed reliance upon a decision of a learned single Judge of andhra Pradesh High Court in New India assurance Co. Ltd. v. Sammayya alias M. Shankar, 1997 ACJ 185 (AP), wherein upon taking into consideration various decisions of the Apex Court and other high Courts it was held:"before the Amendment Act 22 of 1984, the law did not require that the loss of earning capacity of the applicant workman should be assessed by a qualified medical practitioner. The legislature in its wisdom thought it necessary and fit to make a provision, enabling the assessment of loss of earning capacity of the workman by a qualified medical practitioner and this amendment came into force with effect from 1. 7. 84. When the statute commands the Commissioner, who is the adjudicatory authority under the Act, to exercise power vested i

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