The assessment of loss of earning capacity in cases of unspecified injuries resulting in permanent partial disablement under Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923, should be based on the medical report, the workman's possibilities of employment in the open labor market, and other relevant factors.

1. THIS is an appeal from the award of the Commissioner of Workmen's Compensation west Bengal, holding that the workman had sustained loss of earning capacity to the extent of 6%. The accident happened on July 29, 1970 and both of his legs and feet were injured on account of the fall of rolls of carpet on him while on duty. The employer appellant's case was that the workman was temporarily disabled for which he was: duly paid and no permanent partial disability was suffered so that there was no loss of earning capacity.

2. DURING trial the workman stated that he was treated for one month for the injury and still felt pain on both legs and right foot. He claimed that he was receiving of Rs. 300/- p. m. and admitted that he was still receiving the same rate under the appellant. His doctor found swelling and tenderness of the particular margins of the cuneiforms and basses of 1st, 2nd and 3rd metatarsals of right foot with stiff and painful joints and pain and pressure on each foot. He also found swelling and tenderness of the skin and the particular margins of the lower and right tibia with stiff and painful ankle joints as also of the particular margins of the condoles of left tibia with stiff and painful ankle joints. He further found indurations and tenderness of the left calf with stiffness of left knee joint and also noted that the gait was limping, while squatting was difficult, painful and. incomplete. He assessed the disability at 15%. The doctor of the employer on the other hand found that there was no mark of injury on both legs nor any disability of soft or bony tissue in both legs and feet. According to his opinion the workman did not suffer from any disability.

The learned Commissioner found that the workman was in the wage group of Rs. 200- -Rs. 300/ -. He considered the conflicting medical reports, 28 which are unfortunately an usual feature in such proceedings, and also considered Ext. B which is the accident report of the Calcutta Dock Labour board. It recorded that the workman got hurt on both legs by rolls of carpet while working. He also examined the injured legs and feet and considering the evidence, he held that the workman sustained loss of earning capacity to the extent of 6% and the award was made accordingly.

3. IN this appeal Mr. Mahadev ghosh learned Advocate for the appellant has contended on authorities that there was no evidence to support any case of loss of earning capacity and mere physical injury does not automatically mean or imply loss of earning capacity particularly when the workman even after the accident was earning the same wages.

4. THE problem of assessment of loss of earning capacity has always been a controversial question and it is difficult to arrive a mathematical precision particularly when the injury is one not specified in schedule 1. Section 4 Subsection (1), Clause (a) provides for the amount of compensation when death results from the injury, Clause (b) for permanent total disablement from the injury, while Clause (c) is concerned with permanent partial disablement. Clauses (a), (b) and (c) are as follows :-

"section 4 (1) Subject to the provisions of this Act the amount of compensation shall foe as follows, namely :-

(a) Where death results from the injury and the deceased workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV-the amount shown against such limits in the second Coolum thereof

(b)Where permanent total disablement results from the injury and the injured workman has been in receipt of monthly wages falling within limits shown in the first column of Schedule IV the amount shown against such limits in the third column thereof (c)Where permanent partial disablement results from the injury- (i) in the case of an injury specified in (Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentag