N. Chaudhury, J.

1. This appeal has been preferred under Section 30 of the Workmen's Compensation Act, 1923, against the award dated 31-12-2002 passed by Workmen's Compensation Commissioner, Dhubri in W.C. Case No. 1/2002. By the said award the Workmen's Compensation Commissioner has determined the compensation amount at Rs. 3,75,534.00. While admitting this appeal on 13-04-2007 the following substantial question of law was framed:

i) Whether the learned Commissioner, Workmen's Compensation, Dhubri erred in law in assessing the loss of earning capacity of the injured respondent without the evidence of the doctor, the injury sustained being one not specified in the schedule to the Workmen's Compensation Act, 1923?

ii) Whether the learned Commissioner Workmen's Compensation, Dhubri, erred in law in directing the appellant to pay the amount of compensation awarded by quantifying the same, accepting the monthly salary of the insurer/opposite party to be Rs. 3,732/-, in the face of the limit of Rs. 2,000/- to the said effect in the policy involved?

One Mrinmoy Chatterjee, who was working as Factory Assistant in Krishnakali Tea Estate met with an accident on 29-09-2001 while supervising the maintenance work of CTC machine in the factory premises. The workman received injury on right hand and left leg. He was taken to garden hospital initially and shifted to Chapar Hospital wherefrom he was referred to Orthopedic Surgeon at Siliguri for treatment under Dr. K.N. Chatterjee Memorial Nursing Home at Hill Cart Road, Siliguri, West Bengal. According to the workman he also received treatment in Apollo Specialty Hospital at Chennai. At the time of the accident, he was 25 years of age and was receiving Rs. 1,49,30/- per day including all allowances and cash value of ration. The learned Workmen's Compensation Commissioner perused the injury certificate dated 03-11-2001, the written statement submitted by the appellant Insurance Company, recorded the deposition of the witnesses PW1 and PW2. The PW1 is the victim workman and PW2 is another workman of the same Tea Estate. Neither of the opposite parties, i.e., the management or the Insurance Company led any evidence. The insurance policy bearing No. 2002/10/2001/7/0 was brought on record to show that it was valid from 07-06-2001 to 06-06-2002 where as accident took place on 29-09-2001. Money receipt from the Apollo Hospital, X-Ray plate and other medical documents were brought on record and the same received consideration of the Workmen's Compensation Commissioner. Workmen's Compensation Commissioner was satisfied that the claimant was a workman and that the incident was covered by the insurance policy and that the workman suffered from permanent partial disablement and that the same is non-scheduled one.

2. In this view of the matter the case in hand comes under sweep of Section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923 which provides as follows:

“(c) Where permanent (i) ……………………………

partial disablement result

from the injury (ii) in the case of an injury not

specified in Schedule I, such

percentage of the compensation

payable in the case of permanent

total disablement as is

proportionate to the loss of

earning capacity (as assessed by

the qualified medical practitioner)

permanently caused by the injury”.

3. From bare perusal of the aforesaid provision it appears that in case an injury is not specified in Schedule 1 the percentage of the compensation payable is proportionate to the loss of earning capacity which is to be assessed by the qualified medical practitioner. It is settled by the catena of decision of the Hon'ble Apex Court as well as this Court that in such circumstances the Workmen's Compensation Commissioner can not decide the loss of earning capacity himself without the aid of qualified medical practitioner. In the case in hand, the opposite party did not lead any evidence but the claimant also did not examine any qualified medical practitioner.

4.