This appeal under section 30 of the Workmen's Compensation Act, 1923 has been filed challenging the legality and validity of the judgment and award dated 9.3.98 passed in WC Case No. 82/97 by the Commissioner, Workmen Compensation, Nagaon. It is not necessary to go to the facts of this case. The only argument advanced in this case is that issue No.4 was decided by the Commissioner wrongly and in violation of section 4 (1) (c) (ii) of the Workmen's Compensation Act, 1923. The finding of the learned Commissioner in issue No.4 is quoted below

”Issue No. 4 : This is a case of personal injuries and as per law under the Workmen's Compensation Act, the claimant petitioner is entitled to compensation under the following head.

Although no amputation was done on the part of injuries complete and permanent uses of that limb deemed to be equivalent to the loss of that limb or member.

As the medical report is silent about the percentage of loss of earning capacity of the claimant petitioner due to physical injuries sustained by him, the Commissioner is empowered by law to determine the quantum of compensation.

So, considering all relevant factors such as the medical reports, gravity of injuries sustained by the workman and on the basis of deposition, the Court is decided to hold the percentage of loss of earning capacity at 50%. According to the g petitioner has monthly salary was Rs.2000.00 and admitted by the opposite party No. 1, the owner of the vehicle and his age was 20 years at the relevant period as per medical report of the doctor.

Now, therefore, taking into consideration the monthly wages of the workman to be Rs.2000.00 PM as per Explanation II of section 4 of the Act, and his age to be 20 years at the relevant period, the claimant petitioner is entitled to compensation as per clause (c) of sub-section (1) of section 4A of the Workmen's Compensation Act as amended 50% 1200 x 224.00 = Rs. 1,34,400.00 along with interest @ 12% per annum as per provision of clause (a) of sub-section (3) of section 4A of the Act.”

2. I have heard Mr. SK Borkataki, learned counsel for appellant and Mr. GP Bhowmik, learned counsel for respondents. It is urged by Mr. Borkataki, learned counsel for appellant as follows:

(i) That the mode of assessment of loss of earning capacity and the person competent to assess it have been provided in section 4 of the Act. While judging the loss of earning capacity, the basis of sound principle of medical science and assessment done by a qualified medical practitioner plays a vital role, who is a qualified medical practitioner has also been defined under the Act. The degree of disability and loss of earning capacity are not synonymous. There must be a basis for it, but not mere guess work and as such while doing assessment of the loss of earning capacity the qualified medical practitioner will have due regard to different injuries specified in Schedule I. If the Commissioner does not keep in view the requirement of law and passes an award such an award involves substantial question for determination in an appeal and as such an appeal lies to this Court as contemplated under section 30 of the WC Act.

(ii) In view of the specific requirement of the provisions of section 4 (1) (c) (ii)of the Workmen's Compensation Act, that the loss of earning capacity is to be assessed by a qualified medical practitioner it cannot be said to be a mere formality.

The qualified medical practitioner also cannot assess the loss of earning capacity in his guess work but the nature of injuries, the percentage of physical disability, the capacity of the injured to perform the nature of work with specific reference to the type of work he is engaged in and several other such factors to come to a finding with regard to the loss of earning capacity. In that view of the matter, in absence of the evidence of the doctor in that regard it is not permissible for the Court to find out only from the evidence of physical disability to the extent of loss of ear

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